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IV: Don't Mind Our 2000 Shell Companies, That's Totally Normal (techdirt.com)
245 points by mtgx on Dec 21, 2012 | hide | past | web | favorite | 78 comments



>Moreover, were we to publish the entirety of our holdings we, or any other company for that matter, could find ourselves mired down in a series of tactical declaratory judgments and reexaminations.

Yeah, obviously they don't want to be involved in a bunch of frivolous lawsuits....


Indeed, then they would not be able to focus on their business.


The business of miring companies down in a series of tactical declaratory judgments and reexaminations.


Really, it's a shame, being distracted from your primary revenue stream in an economy like this.


It's hard to see something so objectively unethical defended by unethical people, and know that they are economically successful.


I don't see why it's hard? I mean, did you really expect them to say something else. It's not like they were going to say "yeah we're assholes, but don't hate tha playa, hate the game"


Not the person you're replying to, but I actually think if they said something like you suggest, it would be better. At least there would be agreement in principle. They would still be assholes, but they would be admitting it. The way things currently are, they think they're righteous crusaders, and that's much worse.


Oh, i don't disagree that would be better, i just don't see why it's hard to watch them play crusader. It's what you should expect.


people have two very different mechanisms for making decisions. one is fast and heuristic, the other slow and logical. they are described in great detail in the book "thinking fast and slow" - http://en.wikipedia.org/wiki/Thinking,_Fast_and_Slow

the reason for the discrepancy between emotion and logic reported by the person you're talking to (and more or less anyone who's not incredibly autistic) is because emotional responses tend to be connected to the first (fast, unreliable) mechanism which picks up on things like apparent injustice (but ignores, for example, calculations based on supply and demand).

so it's quite normal to feel something that is at odds with what you would logically expect.


I think pi18n used "hard" in the sense of harsh, painful as in "hard times", "hard luck", not the sense of difficult.


Yes that was it. I didn't know it was a contentious word at the time.


Personally I was waiting to hear something cathartic like Larry Page's 'capitalism' rhetoric.


Most people don't realize how bad the patent troll situation is. You can be hit by patent trolls for operating a boring online store with nothing more sophisticated than a shopping cart. Happens all the time. Here's just one example:

http://www.plainsite.org/flashlight/case.html?id=1888562

At least some of those defendants ended up settling and paying off that particular troll by the way. Petmeds is a public company and mentioned that in one of its 10K filings.

ps. my understanding is that many/most trolls demand non-disclosures from companies they settle with, which would explain why you don't hear more from the victim companies getting mugged by these crooks.


Haha, yeah. It's always pretty funny when in a room with successful app developers and seeing how many have been hit with litigious welcome packages for having an upgrade [to pro version] button like myself, or other trivial feature in their app. It's like a coming of age marker for app developers. Once you get successful enough to look like you have money, you are going to get a welcome package. A lot of devs won't even say what specifically since the settlements forbid it.


Of course, this practice of settling and signing an NDA needs to end. I think there's room for a company of lawyers that does nothing but fight patent trolls very publicly- perhaps with a solid dose of anti-patent lobbying on the side. The key question, of course, is whether such a service could be priced reasonably - clearly the age of $500/hr lawyers doing bespoke work to respond to computer-generated paperwork is not really working out so well.

I suppose whether such a company would fly hinges on whether or not there are lawyers willing to work for ordinary salaries. The interesting thing here is that if this company is technologically savvy then I'd imagine that a great deal of the litigation effort could be automated, again yielding good cost savings.

As a programmer and a concerned citizen I would jump at the chance to start and/or work for a company like this.


If I were putting together something like this, I'd hire a bunch of competent but relatively inexperienced lawyers starting at $35k/year in a place like Iowa or North Dakota. Spend six months training them to quickly bat down truely meritless suits, and to recognize when they get something possibly meritorious that needs to be kicked up the chain. It would be quite doable at those prices, and is indeed more or less the model used for e.g. run of the mill insurance work.

I think you still need changes in the law to make it easier to distinguish meritorious from unmeritorious litigation. Getting rid of things like the presumption of validity, raising the bar for novelty and obviousness, etc, would all make it easier to handle each case cheaply.


I'd hire a bunch of competent but relatively inexperienced lawyers starting at $35k/year

That was my initial thought, too, although I was thinking more like 80k. At that rate you could attract idealistic, smart lawyers. At 35k you're attracting desperate lawyers.

Also, the place to setup shop would be SF proper. That is where the customers are, and for any business, especially one like this, customers are most important. That said, from what I've read the trolls do a lot of business out of East Texas, so that would make sense too.

The interesting thing about this business is that it's intended to be a stopgap measure until the law changes. That is, if it is very successful it will go away. Also, to avoid becoming the enemy (from what I've read IV sells "patent insurance" - basically protection money against IV) I'd make it as transparent as allowed by statute, and a non-profit.


If the goal is to cheaply handle crappy lawsuits, you need to maximize volume while minimizing costs. You might have a business development effort in San Francisco, but the actual work can easily be done from an office in Omaha. You don't need smart, idealistic Berkeley grads to churn through meritless suits. $35k + benefits is a very good salary in Omaha and will attract perfectly competent people ($35k would attract only desparate people in San Francisco). They won't have much experience, but you can amortize the cost of a good training program over a large volume of work.

Much of your value add is going to be in streamlining the process: developing tools and processes to minimize the time it takes to handle a particular suit, and aggregating knowledge about particular patents and particular trolls to amortize the cost of dealing with them over multiple clients. At the end of the day you need a licensed lawyer to sign off on any filings, but everything else can be automated.


Some interesting ideas in this thread... couple of points re: the above:

- clients are all over, not just SF. Like I said all it takes is just a simple online store for the trolls to come after you, i.e. it's not just software developers getting sued. It's also their clients.

- don't hold your breath about the law changing. The goal here should really be invalidating software patents lock, stock, and barrel - that's not something likely to happen anytime soon.

- the non-profit idea is a good one. If enough companies contributed 1% of revenue/profit/funds raised to an effort like this one, it could probably get going... I personally wish I had the time to organize something like this.


The people who would be interested in this are the VCs themselves, as their portfolio companies are at risk in aggregate. Indeed, I wouldn't be surprised if there are ad hoc anti-troll legal teams associated with the major VCs already. But the key is reducing the cost to fight, and the cost will only go down with scale, and no VC has a large enough portfolio, I'd imagine, to really get the cost down


> If enough companies contributed 1% of revenue/profit/funds raised

I think you're overestimating how much companies spend on patent litigation. People have been throwing around the number $100 million for how much Apple spent on patent litigation in 2011. That's 0.1% of their 2011 revenues. At a typical Fortune 1000-ish company, total spending on outside counsel (which includes not just litigation, but transactional advice, tax advice, etc) is on the order of 0.2% of revenues.


It seems like there needs to be a litigation insurance aspect to this as well. A policy which would cover the costs of just the lawyers, not the costs of any settlements or judgement awards. How much would the premium be for a policy that offers $100,000 of protection with a $5,000 deductible and a 10% copay? The first response letter would be free. The more specific the coverage, it would seem to make the premium. So this would be for patent infringment lawsuits only. And maybe the upper cap is increased to $200,000 for cases filed in East Texas.

Here are the benefits as I see when the troll come-a-calling:

- For those with the insurance: "Yay, we now have some breathing room, since we're lawyered-up, and most of it is paid for." - For those with out the insurance. They'd still want to hire the "Anti-troll LLC" company for the litigation, since the trolls wouldn't know if the insurance policy was in effect, and would have to assume that they have a real fight on their hands. - If "Anit-troll LLC" was popular enough, it would also seem to be a partial end-run around the NDA thing, since the same law firm is involved, and the same lawyers are involved in multiple cases.


What you really need is a number of top tier IP lawyers.


But of course before 1991-1992, there were no online catalogs. It was an entirely novel idea brought to us by Charles E. Hill. If not for Mr. Hill, there could be no eBay, no PetMeds, no online shopping as we know it.


Someone should do a CrunchBase + Wikileaks web app for patent trolls. PatentCrunchTrollLeaks.com? :-)


Do stock brokers broadcast tips to their competitors? Does Warren Buffet tell the world where he’s investing next? Does Disney broadcast which plots of land it is planning to buy for its next theme park?

This statement is telling because it is contrary to the basic principles of the patent system. Patents are intended to disclose inventions; to provide an alternative to secrecy that allows mutually beneficial cooperation between competitors. Intellectual Ventures has abandoned all pretense of using patent law as it was intended.


Theoretically, entrepreneurs would look through lists of patents for something to produce, and than license and produce it.

The patent absurdity of that idea, shows how badly broken the system is. Still, IV prefers to pretend that the system is indeed working like that.


Note the patents IV discusses in their dealings with the press: e.g. one for zapping malaria-carrying mosquitoes out of the sky with lasers. Surely, the entrepreneurs are lining up to bring that invention to the wealthy markets of the Dark Continent and the rest of the Third World. Right after they introduce Bill Gates' high tech toilet. In all seriousness, the sad truth is some projects will not be driven to completion by market forces. They require "brute force" (personal wealth and force of will) to make them happen. Gates' push for a malaria vaccine was one. Glaxo, as a "rational actor", would not have finished that project if not for all the free Gates Foundation funding. Truly an amazing achievement. However, his former CTO appears to be cut from a different cloth. His brute forced idea is IV. Not, e.g., a device to kill malaria carrying parasites with lasers, or any other such noble invention (they have plenty of examples to feed the press I'm sure), but a company to _license_ that invention, for a _price_... _if_ it can find a _suitable_ licensee. Big difference. Back in the real world...

Finding suitable entrepreneurs to take great ideas covered by someone else's patents forward is not how IV makes money. (Nor is it usually how great ideas reach the market. Theoretically of course it sounds great.) Rather, IV threatens successful businesses with lawsuits based on allegations of infringement of patents IV controls - low quality patents that would likely be partially or wholly invalidated were they to be re-examined or challenged in court. The targets of IV's threats are faced with the option of either challenging the patents (made more difficult through aggregation and extensive use of shell companies) or paying fees. The latter is less expensive, so they pay the fees.


Brilliant comment. This public statement by IV hopefully can be used in court to undermine their entire position, that they and their lawyers are abusing the legal system for financial gain.

Not only will they lose the case, but 'abuse of the legal system' is grounds for disbarment in most states.


The patents were all disclosed the moment they issued, so I'm not following your argument.


The "disclosure" represented by a patent issued to a random shell corporation is minimal considering the opaque (and yet still ambiguous) legal jargon they are written in and the sheer volume of junk patents issued. This is, of course, part of the tragedy of today's lamentable patent system.

If Intellectual Ventures was actually interested in performing a service for the industry they would publish all sorts of information about all their patents in their portfolio (starting with which patents they control), so that potential licensees could actually collect and license valuable ideas. But of course it's much more profitable to make patents as confusing, opaque, vague, and secret as possible, then wait for someone to unknowingly infringe and sue them a couple of years after it's too late to stop infringing.


I think the point is that, when something novel is invented, two routes can be taken:

Patent: Protection from competition for a limited time, in exchange for disclosing the methods of the invention.

Trade secret: Keep things on lock, and make money on it until someone else figures it out for themselves.

This is why things like "pinch zoom" and about 5m other shitty patents are so absurd: There's very little "novel" about most software patents. And these people are making really broad claims, and doing nothing with them, for the sake of litigation. It's a mockery of the intention of the office.


A company with a page on its site, written by the co-founder, entitled "The Red Herring of Transparency".

Surreal.

He admits patent quality is poor and then at the same time wants you to pay to license IV's low quality patents. He's afraid of DJ's and reexams. Gee, I wonder why.

Maybe it's because many of IV's patents would never survive the scrutiny (that they should have gotten by the USPTO during prosecution).

Have you ever paid repeatedly for some thing only to find out later you did not have to? How did that make you feel? DJ's and reexams might save the present and future licensees of IV's patents a lot of money.

http://www.intellectualventures.com/index.php/insights/archi...


"Do stock brokers broadcast tips to their competitors? Does Warren Buffet tell the world where he’s investing next? Does Disney broadcast which plots of land it is planning to buy for its next theme park? Of course not, and IV takes a similar approach to our investments."

Does North Korea say where it's nuclear silos are located?


The thing that seems different about IV is that they try really hard to not seem like a patent troll.

I find it a little insulting, at least the other trolls are pretty straightforward about it and don't try to pretend they're coming up with inventions or advancing science.


Interestingly, one of the managing partners of IV, Peter Detkin, is credited for popularizing the term "patent troll".


I continue to hold out this vain hope that Intellectual Ventures is an elaborate satire, an effort by some smart technologists to demonstrate how broken the US patent system is by exploiting it in such a comically villainous fashion.


Yeah, I've thought that they're trying to be a patent martyr too, that they're using every trick that can be used in hopes that eventually it brings about change. Smart people, long game, etc. However, the fact remains that engaging in the bad behavior is...bad.


The Westboro Baptist Church of patent trolls, in other words.


He who smelt it dealt it.


Though not for coining it.


Peter Detkin also wrote this piece.


>This is a common practice for asset management firms, and it’s just common sense. Do stock brokers broadcast tips to their competitors? Does Warren Buffet tell the world where he’s investing next? Does Disney broadcast which plots of land it is planning to buy for its next theme park? Of course not, and IV takes a similar approach to our investments.

Those guys declare what they did after the fact though to put things into the open, which I don't think IV does.


Moreover, in all of these examples, the outcomes are all available as a matter of public record as controlled by a government entity. If an IV shell company sues someone and actually finalizes the lawsuit, it's still (frequently) not revealed that the shell company was acting on behalf of Intellectual Ventures all along.

In fact, IV attempts to have the records sealed and, if they settle out of court, they require the settling company to sign an NDA so as to ensure that there's no record at all.


Intellectual property is a farce. Intellectual property is state-sponsored monopoly. Ideas are not property. Reading a book is not theft. Looking at a picture is not trespassing.

The assertion that we would not have a vibrant economy without intellectual property is historically and factually false.

But of course, the response from any defender of non-sensical and arbitrary government intervention is: Not the "right" regulations at the "right" time.


> Ideas are not property. Reading a book is not theft.

You're confused. The two sentences above have no common ground. Reading a book is not theft, but falsely claiming ownership of a book's content certainly is theft.


Yes, but being inspired to write a similar book is now a grey area.

As a some-time composer / musician, I like to play around with existing themes and thus create new themes. Many of history's greatest musical pieces reference other pieces (J.S. Bach referenced traditional church pieces, Mussorgsky referenced many traditional folk songs, the list is probably endless), indeed the vast majority of popular music rarely strays from a handful of progressions around a limited palette of chords. Imagine if someone had managed to patent the 12 bar blues early on... No blues explosion, no Rock & Roll, no Elvis, no Beatles, etc. etc.

The argument that patents are for protecting original ideas is becoming more specious with time. It seems that the primary reason many companies now apply for patents is to either protect themselves from future patent cases, or, as is the case with IV, to prosecute any company or individual who tries to bring a similar idea to market.


Replay from Intermernet who is dead:

Yes, but being inspired to write a similar book is now a grey area.

As a some-time composer / musician, I like to play around with existing themes and thus create new themes. Many of history's greatest musical pieces reference other pieces (J.S. Bach referenced traditional church pieces, Mussorgsky referenced many traditional folk songs, the list is probably endless), indeed the vast majority of popular music rarely strays from a handful of progressions around a limited palette of chords. Imagine if someone had managed to patent the 12 bar blues early on... No blues explosion, no Rock & Roll, no Elvis, no Beatles, etc. etc.

The argument that patents are for protecting original ideas is becoming more specious with time. It seems that the primary reason many companies now apply for patents is to either protect themselves from future patent cases, or, as is the case with IV, to prosecute any company or individual who tries to bring a similar idea to market.


"The reports of my death are greatly exaggerated"


This sounds like a plot line in Charles Stross's Accelerando.


Yes. One has to wonder whether IV actually has software that generates new companies at will.


If they don't, you should patent said software and license it to them.


  Second, it assumes that the USPTO's search actually works well (it does not). 
Google Patent Search may help https://www.google.com/?tbm=pts


What would it take to patent some crucial process in IV's "business" model (like establishing shell companies to avoid declaratory judgements) and then sue them?


You can't really sue an entity that doesn't hold any assets. That's why it's been essentially impossible for companies that fight IV and win to counter sue. Even if they won the suit, the particular IV shell would just declare bankruptcy and get "reorganized" somewhere else.

A worthwhile counterattack would either need to fix the patent system (hard) or go after the IV stakeholders personally in a way that would make the risks of their endeavor far outweigh any potential benefits (unlikely).


The patents don't count as assets?


Each shell company only owns as many patents as it needs.

Thus, a loss in court means the patent is worthless, and so it's no loss if the shell company has to give it away.


> "what IV is almost certainly worried about is that, if the extent of its activities were known, there would be more fodder for real and necessary reform against trolling"

I think they're more worried about the situation where, if they were to sue directly and lose, they would have actual assets for a wronged party to pursue.


The "regulated" market (as opposed to the free market) produces what will be consumed.

IV is the symptom. The disease is the current implementation of patent law. I'm not claiming that they are guiltless. But they are filling a space created by the "regulated" market.


The "free market" is an oxymoron. You can't have markets without at least property rights, and property rights are a regulation that take away the most basic freedom of the human animal: the freedom to kill what it can and take what it can.

Don't pretend that we are arguing about anything more than the merits of particular kinds of regulations. It's intellectually lazy.


"Free Market" is a consistent term that refers to a set of laws that allow commerce to happen with as few restrictions as possible. I agree that some people forget that those basic laws, such as property rights, are required. However, those laws are so simple compared to the current state of commercial regulation that the free market is often called regulation-free as shorthand.

That said, I personally do not think software patents have a place in either what is conventionally called a free market or in a well-regulated market.


It's not "shorthand" it's "intellectually dishonest." It's an attempt to hide the fact that what you're really asserting isn't that "regulation is bad" but rather "I think these particular regulations are bad, but I'm very much attached to these other regulations." It's a lazy attempt to get out of arguing against the merits of particular regulation through an appeal to the theoretical merits of an "unregulated market."


I think it's more like calling someone a good person even though everyone understands a good person has flaws, or calling someone a bad person even though they've done a few good things, if you like.

Regardless of your personal feelings, when someone advocates a regulation-free environment, they mean one with those minimal market regulations. This is understood in any conventional( * ), practical discussion as well as most philosophical, legal and economic debates. If all parties understand this, and would prefer to use shorthand in order to quickly arrive at the heart of a particular matter, then I question whether it can be considered dishonest.

* By conventional, I mean to exclude, for example, a discussion between two anarchists -- I mean a mainstream discussion taking place in Western civilization.

Edit: I need to clarify that while this is all understood, it may be forgotten by someone in any particular moment. However, if reminded they will likely have no objection. This is what I meant when referring to people who forget in my earlier post.


property rights are a regulation

No, they aren't. They're a voluntary choice by the parties to reap the benefits of specialization and trade instead of trying to kill each other and take each other's stuff. People make that choice because they understand that they are much better off with specialization and trade; for one thing, we wouldn't be having this conversation in this medium if humans had never got beyond the "kill what I can and take what I can" stage. The regulations and legal niceties come later.


In a democratic society, property rights are no more or less voluntary than any other regulation. Nobody asks you to consent to the property rights regime at birth nor can you opt out of that regime.


Sure, you can opt out; just start not respecting other people's property rights. Yes, you'll probably end up in jail or dead, since our society treats such behavior as criminal, but that's just a consequence of your choice; it's not preventing you from making the choice.

It's true that you don't consent to the regime at birth; but you do consent to it once you're an adult and making your own living, since that means you have chosen not to pursue the alternative I described above. Sure, the choice is a no-brainer (at least for almost everyone), but that doesn't mean it isn't a choice.

If your point is that the property rights regime is the only one on offer, that's not true either; just move to, say, Somalia.


By that logic, no law is regulation.


I wasn't arguing that our current "property rights regime" doesn't count as regulation. I was only arguing that that regime is voluntary; you do have a choice to opt out. That choice may not be very attractive, but it's still a choice; choices don't always have to be between equally attractive options.

In short: something can be a regulation and still be voluntary. Speeding laws are regulations, but lots of people choose to violate them.


Usually when people say that something is "voluntary" they mean that you are not compelled to do so under threat of force.


By that logic, no law is voluntary. Yet people choose to violate laws for various reasons.

If someone is holding a gun to your head as they escort you off their property, yes, they are compelling you to respect their property rights by force. But if someone puts up a "no trespassing sign", and they are not home, and you choose to walk across their lawn despite the sign, how is that not a voluntary choice to not respect their property rights?


A "no trespassing sign" doesn't cary any force on its own. Were there no laws against trespassing on private property, then yes, you'd have a point. Whether someone has a sign or not, the law is the same, and if the police show up and then point their guns at you (whether real or metaphorical), it's more or less the same situation.

You have a choice in the case of the gun toting property owner as well. The choice is to leave, or be risk being shot and killed. As you say, not all choices are between equally desirable outcomes...


A "no trespassing sign" doesn't cary any force on its own.

It conveys the property owner's intent regardless of whether there are any laws to back it up. If you choose to disregard the owner's intent, you are disregarding his property rights, whether or not the law makes that illegal. Using signs, fences, and other boundary markers to delimit property is logically prior to any laws about property rights, and those boundary markers can succeed in defining property rights even if there are no laws to enforce them.

If you know your neighbor doesn't want you to walk on his lawn, and has a sign up conveying that intent, is the law the only thing that can keep you from disregarding his intent? If you know that the goods inside the corner grocery store, whose owner is known and respected by everyone in town, aren't yours, and you find the door unlocked, is the law the only thing that keeps you from going in and looting the place?

People can have other reasons besides laws for defining and respecting property rights. It's easy to forget that now because our system of property rights has been evolving for thousands of years. But that doesn't change the fundamental game theory involved. The fact that many people now think that the law is the only thing that keeps them from violating others' property rights is a bug, not a feature.


You are probably right. If all governments in the world collapsed today markets WOULD still exist with or without regulation. BUT regulation would start to reappear almost as quickly as it disappeared.

A healthy marketplace relies upon a foundation of some sort. There has to be trust between producers and consumers. Regulation is a framework to create that trust.

I am certainly not against all regulation. I also feel that interference in the market does more to hurt than to help.

Places in the world now where anarchy or something similar reigns do not have more of a free market than we do.

My larger point is that patent law is part of the regulation in our market that is not being implemented effectively.


> My larger point is that patent law is part of the regulation in our market that is not being implemented effectively.

I don't disagree with that at all. But that should be the argument: "this regulation is helping more than it is hurting" not "this regulation is bad because regulation is bad."


Can't you just register company in another country to avoid trolls?


Does IV stand for "Intellectual Vultures"?


Disclaimer: I have never been sued and don't know who any IV executives actually are, and I'm speaking purely hypothetically.

Hypothetically, if a legal firm is engaging in clearly predatory behavior, can a point be reached at which it is morally justifiable to retaliate against said firm in an extralegal manner? Perhaps law firms that walk the line of ethical behavior but are clearly behaving immorally by any reasonable standard present a sort of edge case. Usually, a moral person should settle his disputes in a civilized manner by going through the proper legal channels. However, if a moral person is being abused by a law firm that is capable of outmaneuvering him in all or almost all legal proceedings, what recourse does that person have? A good analogy is a battered wife who is reasonably certain that going to the police will result in her husband murdering her. In such cases, courts have ruled that a wife may initiate force against her husband and yet be acting in self-defense.

Another analogy is the idea that it's possible for the US government to become so corrupt and/or abusive that revolution becomes justified. If the people of the US were ever to attempt a revolution, however, they would certainly be labeled terrorists by the US government, and their actions would be considered treasonous. Nevertheless, there is a point at which revolution is theoretically justifiable, despite being treasonous. That point is when it becomes impossible to participate in the political process. The actions of an oppressive government amount to legal abuse, much like the actions of a predatory law firm.

I'm not trying to rile anyone up here, but all I see are comments that come off as totally defeatist. We tell our kids to use their words, but no one can be bullied forever. Eventually, something's gotta give.


It reminds me of the Enron scandal.

They were creating so many shell companies that they were using names from places / people from the Star Wars universe. They even had a "death star" technique IIRC.

I wonder what "theme" is IV using to name all their shell companies.




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