Monday, April 4, 2016

Hey Patent Trolls: Listing Your Favorite Things Isn't Patent Infringement

Hoping a trend is starting to reign in greedy,
corrupt patent trolls.  
A Pennsylvania photographer named Ruth Taylor had an innocent website called Bytephoto, on which she ran photo contests in where winners were chosen by viewers choosing which images they liked best.

It's something that's been going on since there were humans: People rank things in order of how much they like or dislike them. Nothing innovative about that. 

The problem is, there are still epic problems with patent trolls, people who find examples of mundane activities and sue, or more accurately, try to extort money by claiming the idea is stealing from a patent the trolls say they own.

My complaints about patent trolls might seem esoteric, but the reason I do is because  it affects everybody.

 Like shoplifting, it drives up prices for all of us. The unfairness of it is also galling. People getting rich of things that aren't an original idea, or not any kind of real idea at all. They're just scammers and crooks. 

Unfortunately, it's easier to pay the ransom trolls demand than pay lawyers piles of money to fight these cases, so people hand over money to the trolls to make they go away. Which encourages them to keep extorting. 

Every once in awhile, though, somebody fights back. While I don't know if I would fight back, I still wish more people would, since Congress doesn't have the balls to pass sensible legislation to reign in the trolls and bring a whacked out U.S. Patent Office back under control.

A guy named Michale Garofalo, who had a little-used video website called, sued Taylor, saying she was infringing on U.S. Patent 8,209,618, Ars Technica reports.   Taylor, he said, was somehow infringing on the patent with her photo contests, reports Ars Technica

Garofalo initially demanded $50,000, but cut the demand to $5,000, and later $2,500 when he discovered Bytephoto didn't have much of an income. 

Taylor decided, instead of paying, she'd take a shot at contacting the Electronic Frontier Foundation, which is kind of an ACLU for free and open and fair access to the web.

EFF filed a motion to dismiss Garafalo's suit, saying the photo contest patent should be thrown out, as per a 2014 U.S. Supreme Court decision that said that adding technological sounding or computeresque language to an existing idea isn't enough to claim patent rights.

Garofalo at that point gave up and dropped the case.

But it gets better. Finally, a patent troll has really been held accountable.

U.S. Chief District Judge Jerome Simandle said Garofalo's company, Garfum, should pay the lawyers fees because of its "unreasonable" behavior during the litigation, Ars Technica says.

"The practice of ranking things in categories based on popular vote was well-known before the advent of the internet, or even computers, and the requirement to involve an online database does not make this claim inventive," Simandle wrote. "Any person with a pen or paper could perform the same steps."

Well, duh!

But that doesn't stop patent trolls. Ars Technica says the Garfum case was handled by Austin Hansley, a Texas law firm that worked on some of the most outrageous patent troll cases.

Austin Hensley also represented an outfit called aDekka, a patent troll that was ordered to pay $390,000 in attorney's fees for 168 cases thrown out by a Texas federal court,  Ars Technica says.

By the way, the town of Marshall in eastern Texas, from where those 168 cases grew, illustrates the most extreme example of corruption surrounding patents and patent trolls

The story is unbelievable.

Local federal judges there began encourage these patent troll cases to be heard there, instead of in places closer to where the alleged patent misdeeds happened. All these high powered lawyers and consultants and such that were forced to make trips to Marshall made the town prosperous, because they went to local businesses.

Locals serving on the juries in these cases knew it and acted accordingly.

So the area became a patent troll mill.

According a 2014 article in Texas Monthly:

"Over the years, Marshall has earned a reputation as the intellectual property equivalent of a speed trap, a place where juries smack big companies with huge judgements. And over the years, federal lawmakers have tried to do something about it, with little success.

The U.S. Supreme Court and the federal appeals court in New Orleans have enacted restrictions on new filings. (The late) U.S. Supreme Court Justice Antonin Scalia declared Marshall "a renegade jurisdiction.' "

Last year, a bipartisan bill in Congress was being considered to reign in patent trolls, but so far, nothing has been passed.

The bill was blocked by conservative lawmakers who said strong patent protection create wealth and  jobs in the U.S. and encourage innovation.

Sure, but can't you have strong patent protection and stop patent trolls too? Kinda like walking and chewing gum at the same time?

Patent trolls don't deserve any protection. Time to reign them in, and punish those who abuse honest entrepreneurs and others. Let people who come up with great, innovative ideas obtain patents and the protections they deserve to preserve their investments and inventions.

Commerce and wealth should rise from good, innovative businesses. Not from extortion and corruption. 

1 comment:

  1. thanks for the informative article and explaining to those new to hearing the term "patent troll" what they do to destroy our economy and hurt even small websites like mine :(