Linked by Thom Holwerda on Wed 3rd Apr 2013 13:00 UTC
Legal Joel Spolsky is ramping up the fight against patent trolls, the scourge of small companies and startups trying to advance technology in new and interesting ways. Sadly, while Spolsky is right on the money on everything, and even though the fight has to start somewhere, I think he - and others - are doing the industry a huge disservice by focussing entirely on pure patent trolls, without actually addressing the other side of the coin: medium and large business engaging in the same patent troll behaviour.
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Sitting ducks
by geleto on Wed 3rd Apr 2013 13:47 UTC
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Startups are sitting duck if a competitor wants to take them out. They don't even need a solid case, the startup doesn't have any patents (it takes 4 years to get one) and almost certainly doesn't have enough money to fight in court. And unlike the patent trolls who are mostly after the money, the competitors wants them dead.

One such example is how Aureal got bankrupted by Creative Labs:
"Creative Labs sued Aureal for patent infringement... After numerous lawsuits Aureal won a favorable ruling in December 1999,[1] which vindicated Aureal from these patent infringement claims, but the legal costs were too high and Aureal filed for bankruptcy...Creative acquired Aureal's assets from its bankruptcy trustee ..."

Reply Score: 5

RE: Sitting ducks
by sukru on Wed 3rd Apr 2013 15:12 UTC in reply to "Sitting ducks"
sukru Member since:

That's more of a problem with the court system. In many other countries, Creative would have had to pay all legal costs, both their own, and also Aureal's. With additional fines, which would be enough keep Aureal afloat.

Unfortunately in US, the one with the more money can easily win, by exhausting the resources of the other party.

Edited 2013-04-03 15:12 UTC

Reply Score: 7

RE[2]: Sitting ducks
by Yamin on Thu 4th Apr 2013 19:54 UTC in reply to "RE: Sitting ducks"
Yamin Member since:

"That's more of a problem with the court system."

Can I repeat the phrase in the article.
A distinction without a difference ;)

Reply Score: 2

RE: Sitting ducks
by zima on Sat 6th Apr 2013 14:53 UTC in reply to "Sitting ducks"
zima Member since:

Too bad Aureal itself wasn't a very exemplary company... (and what possibly contributed to its second bankruptcy, as Aureal, investors being cautious)

Edited 2013-04-06 14:58 UTC

Reply Score: 2

Rigged game
by bolomkxxviii on Wed 3rd Apr 2013 14:39 UTC
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Big business bought off the government so the rules of the game would favor big business. Targeting big business by itself will not fix the problem. Getting big money out of politics will. When politicians actually have an incentive to work for the people instead of big business things will change and not a moment sooner.

Edited 2013-04-03 14:39 UTC

Reply Score: 11

RE: Rigged game
by Yamin on Thu 4th Apr 2013 20:06 UTC in reply to "Rigged game"
Yamin Member since:

If money/being bought was the main problem in politics, it would have been solved long ago.

The biggest problem is who are 'the people'.
People like to think if the government could learn to take care of 'the people' then we'd be treated better.

In reality, there is no such things as 'the people'. We all have different wants and needs and the government is just benefiting and taking from different groups at a time.

Just how would the government do better at patent laws if it wasn't being 'bought by big business'.

Getting rid of patents? how about the millions of people employed at such companies... are they not part of 'the people'. How would they react to something that decreases their job stability and company performance?

How about investors and pensions funds? Do they not help 'the people' as well. They need money so the rich can get richer and regular people can have a retirement? Some patent trolls are public companies.. and many large companies provide decent stable investments.

And how the lawyers? Are they not part of 'the people to'. They also need money... and I'm sure they can also go on a great moral tirade about the righteousness of intellectual property. Heck, I once watched a show on TVO - the agenda (Canada's non profit like PBS) and in response to questions competitiveness, intellectual property was mentioned as a big part of it. We need to protect our intellectual property so we can sustain profitability... so other countries can't just 'steal' our technology. Wait, now we're talking international free-trade.

And how about all the developers and engineers who just want a decent stable career. They're not one of the lucky ones working for a startup potentially sitting on a goldmine. They want a job like the other 95% of society... just in their field. Don't they count as part of the people too? And a big company with a stable patent portfolio to 'extort' their position helps them do that.

And yes, how about all the innovators just wanting to advance technology? This peculiar group would probably want to get rid of patents... but how many of these people are there compared to the rest of the groups above?

You're probably right that the game is rigged. The problem is that it's not rigged because big business bought the government... it's rigged because we the people are our own diverse special interest.

Reply Score: 1

RE[2]: Rigged game
by Alfman on Thu 4th Apr 2013 21:19 UTC in reply to "RE: Rigged game"
Alfman Member since:


Well, to be fair we're not opposed to all protections, however I think you'll find most software developers will prefer copyright over patents because it doesn't block anybody's path the way patents do.

The reason is simple, copyright infringement cases are open and shut. if you implement your own code, your not guilty. With patents we can infringe regardless of whether the work is our own, which is why we hate them.

Reply Score: 3

I Agree 100%
by Pro-Competition on Wed 3rd Apr 2013 15:12 UTC
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Thom, I agree with every word you said.

Reply Score: 6

by galvanash on Wed 3rd Apr 2013 18:38 UTC
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I agree with the sentiment, but personally I think there are important differences between true "trolls" and large and medium businesses who partake in this behavior, even though the "racket" is essentially the same:

The worst of the trolls are financially weak and are purely in it for quick money, so they throw out very large blankets (lots and lots of "licensing" letters). They cannot in reality bring legal action in all of these cases, so they are from the jump in a weak position. They desperately try to hide this fact from individual targets by puffing themselves up and hiding key financial and licensing information from their prey. It is a short con, all it takes is a little bit of resistance and they fold.

This is the particular kind of troll Joel is talking about, and they can be defeated quite easily if all the targets know about each other and can organize.

It has little to do with the patent system, patent reform, or patents themselves. It is more about how to identify and respond to a protection racket. Getting businesses educated enough to know when they are being had, and giving them a way to organize their defense is a laudable goal imo.

Big corporations (or extremely well funded and diversified trolls) are an entirely different animal. They are not in it for quick money - it is a form of long con. They want the big prize at the end (whether it be money or market power), and are willing to spend considerable resources to get it. They don't pull the trigger until they are sure they are willing to go all the way...

I'm not saying it is right, but the reality is it is dangerous to fight these guys in court. It's easy to say everyone should just stand up to them - but sometimes they have patents, which stupid or not are legally valid... The have teeth and they have money - if you do not have both in equal amounts your odds of winning are very, very bad.

In either case the racket is the same, but there is a big difference between getting a letter from some NPE saying you should pay them a license fee because they have some obscure patent on ink jet printers versus getting a letter from Microsoft saying that you should pay them 5% royalties because your multi-milliion dollar widget business has bits in it that violate their not-so-obscure patents.

The NPE probably sent out thousands of those letters, has 3 lawyers and no money - Microsoft probably sent ten or so, has a army of lawyers and tens of millions in cash.

I'm sorry, but it just isn't the same thing.

Reply Score: 4

Yes and no
by BallmerKnowsBest on Wed 3rd Apr 2013 22:06 UTC
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I see zero distinction between the behaviour of these medium to large companies and that of patent trolls. In fact, it's worse

Agreed (though I'd also point that "worse than" most certainly IS a difference). Using the term "patent troll" for Apple's actions is insulting to mere, run-of-the-mill patent trolls (NPEs). If the business world had something akin to the Geneva Conventions, then Apple's action could more accurately described as "patent aggression" or "patent terrorism."

Though I disagree with Spolsky's argument that fighting patent trolls is solely the responsibility of the companies targeted by trolls. The whole "social responsibility" thing cuts both ways: if those companies have a responsibility to combat patent trolls, then (by the same token) consumers have a responsibility to support those companies & NOT support companies that do cave in to trolls.

Otherwise, it's just ivory tower-radicalism: "this is a very serious problem and it's critical that it be fixed... just as long as someone else does all the work."

Edited 2013-04-03 22:12 UTC

Reply Score: 5

Comment by shmerl
by shmerl on Wed 3rd Apr 2013 23:03 UTC
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Very true. Patent racket ("trolling") is not limited to non practicing entities. Big companies like MS and Apple are racketeers with big experience.

Reply Score: 6

slowly slowly catchy monkey
by Gone fishing on Thu 4th Apr 2013 04:31 UTC
Gone fishing
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Focusing on the little guys first could indeed be a good start - but we're going to need more. A lot more.

As pointed out in the article patient trolling by Non-practicing Entities is an unethical protection racket and the companies involved gangsters. Make this practice illegal and the argument for allowing companies that have division devoted to patent trolling becomes unsustainable. Legitimate companies are not allowed to engage in practices that are illegal and mafia like, once patent trolling is legally defined as illegal and using IP in this way illegitimate, then large companies will also lose the ability to behave in this way.

The thin end of the wedge.

Reply Score: 3