

One insider describes how trial lawyers killed patent reform - ossama
http://www.vox.com/2014/5/24/5745832/one-insider-describes-how-trial-lawyers-killed-patent-reform

======
rayiner
> KG: I can only guess it was the trial lawyers. Why? Because they lost at
> every turn. If winning the debate wasn't an option, they were just going to
> call the game off. Which is apparently what they did.

Is that a "description of how trial lawyers killed patent reform" or a "I can
only guess?"

The article paints this picture that "trial lawyers" can kill whatever bill
they want. But the narrative is facially implausible. You're supposed to
believe that trial lawyers get their way by throwing a lot of money around.
But they don't have the kind of money Silicon Valley companies have. If it
were just a matter of lobbying and money, the companies interested in patent
reform could steamroll over the trial lawyers and the trolls.

Ars had some good coverage of this that paints a clearer picture.
[http://arstechnica.com/tech-policy/2014/05/gridlock-
strikes-...](http://arstechnica.com/tech-policy/2014/05/gridlock-strikes-
again-as-anti-patent-troll-bill-dies-in-us-senate). Specifically, they note:
"Early this morning, several groups opposing the bill denounced those
provisions, promising they would be united in their opposition to any bill
that included them. 'Many of the provisions would have the effect of treating
every patent holder as a patent troll,' read a letter sent out by the
Innovation Alliance, which was signed by the American Association of
Universities and the biotechnology trade group BIO."

Meanwhile, this is the message that Apple, Microsoft, DuPont, Ford, IBM, and
Pfizer endorsed just 10 days before the bill was killed: "According to these
arguments, 'patent trolls' are bringing businesses to a complete halt and that
software patents are a barrier to innovation. Some pundits even equate 'patent
troll' litigation with the legitimate legal interests of inventors who are
defending their intellectual property.

The same anecdotes and flawed studies are trotted out time and again to the
delight of those who wish to substantially restrict the patent rights of
operating companies in favor of their own narrow business interests. What
these sound bites don’t tell you is that the cost of reducing or eliminating
the incentives for innovation would be devastating for nearly all sectors of
the U.S. economy. Worse, it could make slow growth permanent by ceding our
position as a global high-tech leader to foreign competitors." See:
[http://partnershipforamericaninnovation.org/category/frompai](http://partnershipforamericaninnovation.org/category/frompai)

See also: [http://wallstcheatsheet.com/technology/apple-microsoft-
and-o...](http://wallstcheatsheet.com/technology/apple-microsoft-and-others-
push-back-against-proposed-patent-law-changes.html/?a=viewall)

If you think this is about money, follow the money. Companies with a trillion
dollars of market cap come together to say "we think the patent system is
great" weeks before the bill is killed. Companies like Qualcomm sign a letter
opposing the bill the morning before its killed. Who do you think has the
money?

~~~
AnthonyMouse
> The article paints this picture that "trial lawyers" can kill whatever bill
> they want. But the narrative is facially implausible. You're supposed to
> believe that trial lawyers get their way by throwing a lot of money around.

Trial lawyers have a different trick. When Pfizer or Qualcomm wants to know
what impact proposed legislation will have on their business, who do you
imagine they ask? I wonder how many firms disclosed the conflict of interest
when furnishing the advice.

~~~
throwawaykf05
_> who do you imagine they ask?_

I'd imagine they ask their general counsel, who would be corporate lawyers?
Not sure how much those'd overlap with (or be affected by) trial lawyers.

~~~
AnthonyMouse
You're going to ask the general counsel about fee shifting? The money question
is how often litigation by plaintiffs in the position of your company goes
sideways such that the proposed legislation would require you to pay the
defendant's costs. General counsel is going to ask the trial lawyers.

And that's assuming outside litigation counsel wouldn't offer it as
unsolicited advice, as they have every incentive to do, particularly as it
became more apparent that the legislation could pass.

------
pdabbadabba
The article doesn't deliver on the sensationalist title. Here is all the
evidence that this "insider" provides us:

"TL: What triggered the decision to call the game off?

KG: I can only guess it was the trial lawyers. Why? Because they lost at every
turn. If winning the debate wasn't an option, they were just going to call the
game off. Which is apparently what they did."

Glueck may be right, but this is nothing but speculation. Moreover, it is
speculation unaided by any more information than the general public has. We
all know that trial lawyers would, logically, dislike patent reform, so of
course they're a natural suspect when it gets scuttled.

------
linuxhansl
While the article is a bit short on detail, it looks like what it will take
for our politician to act is most innovation moving out of the US. Currently
that does not happen, because here is where all the investors are, where all
the money is; but that climate can change quickly.

My guess is that politicians will act then, but by then it will be too late.

In all that we keep forgetting again and again why patents exist: To protect
an investment by granting a temporary monopoly.

It's not to make lawyers rich, nor is it to prevent newcomers entering an
existing market; and they also don't exist to make money for entities that
just purchased some random patent.

~~~
DanBC
> While the article is a bit short on detail, it looks like what it will take
> for our politician to act is most innovation moving out of the US. Currently
> that does not happen, because here is where all the investors are, where all
> the money is; but that climate can change quickly

Of for some troll to file business patents around political fundraising and
campaigning and then trolls to scoop up some of that campaign funding.

------
jaxhax
The 'insider' complaining here is -- Oracle?? That would be the Oracle that is
No. 58 in the PTO's list of the top 100 most prolific patenters? Who is the
troll here?

~~~
throwawaykf05
1\. Having patents and enforcing them does not make you a troll. It's
generally understood that trolls are non-practicing entities. Unfortunately,
people frequently use the word as a derogatory term for "someone who uses
patents in a way I don't like" (which often really means "someone who uses
patents for their intended purpose, which I don't like on principle"), making
it lack any real meaning.

2\. That someone as litigious as Oracle was supporting this should tell you
something: that this effort had little to do with "reforming patents" and more
to do with "large corporations managing risk".

~~~
AnthonyMouse
> Having patents and enforcing them does not make you a troll. It's generally
> understood that trolls are non-practicing entities.

Apple and Microsoft have managed to turn that line thoroughly into mud by
weaponizing patent trolling as a tool to wage proxy wars.

> Unfortunately, people frequently use the word as a derogatory term for
> "someone who uses patents in a way I don't like" (which often really means
> "someone who uses patents for their intended purpose, which I don't like on
> principle"), making it lack any real meaning.

Patent trolling as a practice has quite clear contours: The perpetrator
alleges patent infringement and demands a license fee which is less than the
cost of proving non-infringement or patent invalidity in court, leaving the
victim having to either pay the troll the Danegeld regardless of infringement
or pay even more to their own lawyers to prove otherwise.

> That someone as litigious as Oracle was supporting this should tell you
> something: that this effort had little to do with "reforming patents" and
> more to do with "large corporations managing risk".

Your explanation is belied by the number of patent nastygrams received by
startups that can hardly be described as "large corporations." That we see
Oracle on the side of reform next to the likes of Red Hat and the EFF only
goes to the severity of the problem.

~~~
throwawaykf05
_> Apple and Microsoft have managed to turn that line thoroughly into mud by
weaponizing patent trolling as a tool to wage proxy wars._

1\. Apple and MS have historically sued competitors with their own patents,
which typically they practice themselves.

2\. The only conceivable "proxy" may be Rockstar, and they claim to operate
independently. If they didn't, well, the DOJ and FTC would be mighty
interested [1].

 _> Patent trolling as a practice has quite clear contours:..._

And my point was, Oracle clearly don't fit the bill. Heck, even IV don't fit
that bill, because they apparently ask for pretty large licensing fees.

> _Your explanation is belied by the number of patent nastygrams received by
> startups that can hardly be described as "large corporations." _

Outside of cherrypicked media reports, there is insufficient empirical
evidence that trolls target startups. I've been tracking trolls for a while,
and trolls that go after the little guys are actually rare. The moment they
do, there's inevitably some media outrage, and the number of unique trolls so
far have been few (lodsys, scanner trolls, WiFi trolls... Fotomedia / photo
sharing trolls about 7 years back... Any more?) By and large these pick on
larger companies, because that's where the big money is.

1\. [http://m.iam-
magazine.com/blog/detail.aspx?g=2a10f894-6812-4...](http://m.iam-
magazine.com/blog/detail.aspx?g=2a10f894-6812-44b5-a01c-d64562c4310f) (ctrl-f
"commitments")

~~~
AnthonyMouse
> 1\. Apple and MS have historically sued competitors with their own patents,
> which typically they practice themselves.

So you can't be a patent troll if you weren't one three years ago?

> 2\. The only conceivable "proxy" may be Rockstar, and they claim to operate
> independently. If they didn't, well, the DOJ and FTC would be mighty
> interested [1].

In much the same way as a toy soldier can "claim to operate independently"
after you release it having wound it up and pointed it in the direction you
want it to go.

> Heck, even IV don't fit that bill, because they apparently ask for pretty
> large licensing fees.

Compared to cost of trial and appeals + impact on customer opinion of company
+ impact on shareholder confidence + risk of pro-plaintiff East Texas court or
pro-plaintiff Federal Circuit judges reaching an incorrect decision and
product being taken off the market during further appeals? What are they
asking, hundred million dollars + first born child?

> Outside of cherrypicked media reports, there is insufficient empirical
> evidence that trolls target startups.

Of course there isn't. For a startup fighting is equivalent to bankruptcy and
the settlement comes with an NDA. Suppressing all the evidence you can and
then claiming there isn't sufficient evidence is not a very strong argument.

~~~
throwawaykf05
_> So you can't be a patent troll if you weren't one three years ago?_

Not sure where you got that. I meant if you don't exist for the sole purpose
of asserting a patent, you can't be a troll.

 _> In much the same way as a toy soldier can "claim to operate independently"
after you release it having wound it up and pointed it in the direction you
want it to go._

1\. Actually, Nortel was already hitting firms up for licensing those patents
before they went down. It was already "wound up and pointed in the right
direction." Everyone knew what was coming. The companies that bought them did
so to manage their own risk. They are now simply going after the rest of the
industry that failed to do so.

2\. Rockstar is now suing giant corporations like Google and Samsung. You
think they wouldn't get the FTC and DoJ involved if they could prove anything?

 _> Compared to cost of trial and appeals ..._

Those are the only concrete costs. Everything else is handwavy (public
opinion? Really? Impact on stock? The _weather_ has more impact) or highly
unlikely (injunctions). The companies IV goes after can certainly afford to
take them on.

 _> pro-plaintiff Federal Circuit judges_

I'd encourage you to lay off Timothy Lee's articles about the Federal Circuit
and actually look up statistics about their decisions.

 _> Of course there isn't. For a startup fighting is equivalent to bankruptcy
and the settlement comes with an NDA._

1\. Absence of evidence is not evidence of absence, but it's not proof that
evidence is being suppressed either. claiming something is a problem without
sufficient evidence is not a very strong evidence either.

2\. Evidence always leaks out. All those other trolls no doubt have NDAs, yet
we hear of them. If so many startups are getting hit, where were the VCs in
this whole thing?

Nonetheless, there's something in the works about making these "nastygrams"
more trackable. That will give us enough data to see how much of a problem
this really is. Until then all we have is a outrage driven by a media hungry
for rageviews and informed by PR.

