Definition - "Patent Troll"

"PATENT TROLL" - Any party that intentionally misconstrues the claims of their patent to assert it against another. A patent troll does not have to be a non-practicing entity (NPE) or in any particular industry, all that is required is an intentional misconstruing of the claims in an attempt to extort money from another.


Disclaimer - All information and postings in this blog are provided for educational purposes only. Nothing in this blog constitutes legal advice and you should not rely on any information herein as such. If you do not have a signed engagement agreement with me, then you are not represented by me and you should retain your own attorney for any legal issues you are having.

Monday, June 6, 2011

Leverage If You Are Threatened with Patent Infringement (and why you should ignore FOSSpatents)

Gene Quinn over at IP Watchdog has some good information on "What To Do If You Are Sued for Patent Infringement".  Go read the entire article.  Whatever you do, please ignore the advice of non-attorney commentators (such as Florian Muller @ fosspatents) because they can be shortsighted and are not qualified to provide the complex legal analysis and advice you will need.  (e.g. from one of Florian's latest posts about the Lodsys patents, any patent attorney should be able to recognize that Florian does not understand the law regarding patent infringement and numerous other issues.)

For example, some commentators (including Florian Muller @ fosspatents) are advising targets of patent trolls to roll over and pay the license fee; Florian is even advising you that the license agreement that has not been made public is acceptable for you to sign.  I very much question the soundness of this advice, especially considering the above article at IP Watchdog. Contrary to the bad advice and legal analysis put forth by Florian, there are options available to companies threatened by patent trolls and even if the outcome is a license agreement, Florian's legal analysis and advice is not solid. (I could write a white paper explaining why Florian's analysis is messed up, but I don't have the time right now.  If anyone requests me to provide more detailed analysis, I will put it on my to-do list.)

For starters, in my opinion, Lodsys probably LOVES Florian's analysis and opinions.  (I have no connection or contact with anyone at Lodsys, Apple, and no longer any contact with Florian).  He seems to be making all the arguments that support the troll's business plan - you can't afford to fight, don't even try, the trolls arguments are decent, just give in and sign the license.  Florian dismisses prior art searching, dismisses non-infringement arguments when he clearly does not understand the law, ignores invalidity arguments, misinterprets the claims to determine that Lodsys has a case that is possibly good enough to go to trial (remember, he is not an attorney), and makes statements such as "app devs will lose" unless they have blanket coverage from someone else.  (note - of course, Florian includes CYA language in his posts so that he can have wiggle room out of his responsiblity for misleading people.)

Generally, this is why Florian is wrong:  "In order to be a party at the peace talk table, however, you need to have leverage of some kind, otherwise you are not a party to talks as much as you are having terms dictated."  See Gene Quinn's article.  Gene does not provide a list of what that leverage might be, but he alludes to invalidity or reexam arguments.

To expand on that article, here are potential strategies that could add leverage during negotiations for a company threatened by a patent troll:
- have a non-infringement opinion
- have an invalidity opinion
- have a reexam prepared to file or filed
- file a motion for summary judgment
- file a declaratory judgment action
- consider counter claims (tortious interference, antitrust, etc...)
- have IP insurance provisions
- help fund a joint defense agreement
- hold off settling until a Markman opinion

Many of these strategies can be implemented by a small company.  Some companies may even implement more than one of these strategies at the same time.  As I have said before and Gene notes: "The advice you need, and will get if you hire an attorney, will be tailored to your unique circumstances.There are many variations of these strategies and others that can be implemented that will NOT cost one million dollars.  You need to determine the right strategy for your company based on your circumstances.

Any good negotiator (which IMO excludes Florian) will tell you that you do not negotiate with yourself.  Thus, I have no idea why Florian claims to be supporting application developers when he writes analysis that attempts to shred their potential leverage arguments and advises them to pay what Lodsys is asking.  If someone was truly supporting the application developers, they would be trying to bolster the application developers leverage arguments (as I have been trying to provide on this blog).

Another issue I have with Florian is he seems not to recognize the value of a non-infringement or invalidity opinion, which can reduce a significant amount of risk for a comparatively small cost.  Just another fail in his analysis.  (I think his excuse for will be that none of the accused application developers have the resources available for any strategy other than pay the fee.  Again, I think this shows why Florian is not qualified to advise anyone on strategy or risk concerning patent litigation.)

On a personal note, Florian accused me of being an "anonymous smearer".  While I am doing this anonymously, my response still stands:  "FYI rebutting factually inaccurate statements does not make me a "smearer", it makes you uninformed".

If you are threatened, whatever you do, hire an attorney to advise you for your particular circumstances.  There are many options and strategies available to you whether you fight or negotiate.

Just my opinion, go hire your own attorney for legal advice.


  1. Did Florian spill your pint or something?

  2. I thought Florian Müller was paid by Microsoft, trotting out their arguments at any opportunity, whether anyone wants to hear them or not. Now it turns out he is being paid by Lodsys as well? What a tool.

  3. A favourite quote that pertains fully to Mr. Mueller is:

    "It is very difficult to make a man understand something when his salary depends on him not understanding it."

    And yes, he has a well-earned reputation as being a sock puppet for Microsoft. When he is asked point-blank if he has any such affiliations that are guiding him, he defers to a "That's not important; that's not the issue" response. By using the name fosspatents, he is just another wolf in sheep's clothing. He is not an expert in any field I am aware of, and the tech crowd has mostly figured him out but the mainstream still hasn't. Yet. People like him always get exposed in the end

  4. Nope, Florian did not spill my pint; I wouldn't waste my time having a beer with him.

    I don't know who pays him, but his advice is questionable since he seems to rip anyone trying to help the application developers, complains a lot about the people who are more qualified to help than him (jealousy issues?), and does not provide any real solutions other than what Lodsys wants the app devs to do.


  5. You boost the ego of the narcisstic campaigner with your ad hominem attacks. Far too many victims of his 'mobbyism' tactics know that he is wrong. No need to approach him on his level.

  6. Observer: No, he needs to be called out and shamed for his actions. Repeatedly. Otherwise, his nonsense might be taken seriously by those who don't know any better.

  7. I agree with Observer. I tried to remove most of the ad hominen attacks from my comments and critiques (you should have seen the first drafts!), but it is difficult to resist when he makes me crazy mad with his bad legal analysis and dismissals of anyone else who is trying to help but does not kiss his ass. I also don't have an editor, which would help to catch the unnecessary attacks that slip through.

    Although, I also agree with the last commenter that he needs to be called out, and I have tried to mostly do it by pointing out his mistakes rather than attacks. Hopefully, I won't do many more posts with his name in it, but if I do I will attempt to stick to the facts and analysis.

    Thank you both for your comments, as they highlight the difficult aspect of writing in response to someone who is belittling my profession.