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(TED)   Drew's TED talk is up - How I Beat a Patent Troll   (ted.com) divider line 37
    More: PSA, TED Talks, Drew Curtis  
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18744 clicks; posted to Main » on 17 Apr 2012 at 2:40 PM (2 years ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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Archived thread
2012-04-17 02:59:00 PM
6 votes:
Respectfully, Drew, you've got a lot of inaccuracies in that talk.

First, the burden of proof is not on the accused infringer in a law suit to prove they don't infringe, until the patent owner has first met their burden of proof of showing a prima facie case that you do infringe. Maybe you're confusing it with the criminal law burden of proof of "innocent until proven guilty"?

Secondly, the "frivolous" patents you mention at the beginning - phone calls, but on the internet; or radio, but for cell phones - don't actually exist. Those are just paraphrased descriptions of what the patent roughly describes, but that's like saying that Toyota's Prius transmission patents are really just patenting "a car, but with electricity!" They're not, and you couldn't get such a patent anyway - the prior art "a car" and "electricity" both exist, so the combination is by definition obvious.

That said, your recommendations at the end are great, and I'm glad things worked out well.
2012-04-17 03:03:27 PM
4 votes:

Theaetetus: Respectfully, Drew, you've got a lot of inaccuracies in that talk.


Because Drew didn't actually go through this shiat or anything. He's totally making it up.

/He didn't get five hours to explain, man, and he's not talking to a room full of attorneys. You don't need to go all internet expert on it.
2012-04-17 04:20:24 PM
3 votes:
So, am I the only person who has noticed that, at it's root, Drew's successful strategy in this lawsuit boils down to one simple, universal axiom? It is well known by internet denizens everywhere:

"Don't feed the Trolls."
2012-04-17 03:59:57 PM
3 votes:

MrEricSir: Wonder if this is a typical case, or if Drew was "lucky" to encounter a somewhat incompetent patent troll. Seems like it easily could have been far worse.


if you want my guess, I'm going with incompetent.

However if that wasn't the case, I suspect they figured out they weren't getting anything out of Fark and pursing further was going to be a lot of work

One of the things that got left out of the talk may have played a factor too: during discovery the first question was "who are these 10 people and how are they involved in this case" with 10 names.

Then, the troll missed the discovery deadline.

Which meant they couldn't strike the question

If we had any positive hits in there, I suspect it factored in.

The reason we asked would have been obvious to the plaintiff - we were trying to pierce the corporate veil and go after the owners personally
2012-04-17 02:55:56 PM
3 votes:
It's f*cking sad this even has to be a thing.
2012-04-17 02:55:45 PM
3 votes:
Nice talk Drew!

Isn't this a good time to finally get a TED tag?
2012-04-17 08:39:21 PM
2 votes:

CrispFlows: I genuinely wish I can understand the TED talks, some of them subtitled and captioned. This one is not. I assume that the video is too fresh for the subtitles to be added yet.

Drew, if you happened to have written this talk before you went to stage, would it be too much to ask if you post the written version on here?.


I'll do my best to transcribe. Using the listen, pause, type method and doing it quickly so please forgive typos and stuff:

Last January my company fark.com was sued along with Yahoo, MSN, reddit, AOL, Techchrunch and others by a company called Gooseberry Natural Resources. Gooseberry owned the patent for the creation and distribution of news releases via email. (audience chuckles) Now it may seem strange that such a thing can be patented but it does happen all the time. Take something already being done and patent it for an emerging technology. Like phonecalls on the internet, or video listings for TV shows, or radio but for cell phones. And so on.

The problem with these patents is that the mechanisms are obscure and the patent system is dysfunctional. As a result most of these lawsuits end in a settlement. And because these settlements are under a non-disclosure agreement, no one knows what the terms were. And as a result the patent troll can claim that they won the case.

In the case of Gooseberry Natural Resources, this patent on the emailing news releases had sort of a fatal flaw as it pertained to myself. And that was is that in the mainstream media world there is only one definition for news release, and it turns out that is Press Release as in PR. Now my company fark deals with news, ostensibly, and as a result we were not in violation of this patent. So case closed, right? Wrong. One of the major problems with patent laws is that in the case .. when you are sued by a patent troll the burden of proof that you did not infringe on the patent is actually on the defendant. Which means you have to prove that you did not infringe on the patent that they are suing you on. And this can take quite a while.

You need to know that the average patent troll defense costs $2 million and takes 18 months, when you win. That is your best case outcome when you get sued by a patent troll. Now I had hoped to team up with some of these larger companies in order to defend against this lawsuit, but one by one they settled out of the case. Even though, and this is important, none of these companies infringed on this patent. Not a one of them. And they started settling out. The reason they settled out is because it is cheaper to settle than to fight the lawsuit, clearly. $2 million cheaper in some cases. And much worse if you actually lose. It also constitutes a massive distraction for management of a company. Especially a small, eight-man shop like my company.

Six months into the lawsuit we finally reached the discovery phase. And in discovery phase we asked the patent troll to please provide screenshots of fark where the infringement of their patent was actually occuring. Now perhaps its because no such screenshots actually existed but suddenly Gooseberry wanted to settle. (mimes putting the phone to his ear) their attorney "Uuuh, yes, my company is having a reorganisation on our end" nevermind the fact that the address lead to a strip mall somewhere in northern LA with no employees (continue mime) "And we'd like to go ahead and close this out. So would you mind giving us your best and final offer?" And my response, "How about NOTHING?" (audience chuckles, brief applause)

We didn't have high hopes for that outcome, but they settled! No counter offer. Now as mentioned before, one of the reasons I can talk to you about this is because there is no non-disclosure agreement on this case. Now, how did that happen? Well durring the settlement process when we got our copy, I struck it. My attorney said, Na.. no chance of that working. It came back signed. Now why? You can call them. They're not under NDA either.

Now what did I learn from this case? Well, three things. First of all, if you can, don't fight the patent, fight the infringement. Patents are very difficult to overturn and infringement is a lot easier to disprove. Secondly, make it clear from the beginning that either you have no money at all, or that you would rather spend the money with your attorney fighting the troll than actually giving them the money. Now the reason this works is because patent trolls are paid a percentage of what they are able to recover in settlement. IF it becomes clear to them that they can not recover any money, they become less interested in perusing the case. Finally, make sure that you tell them that you will make this process as annoying and as painful and as difficult as possible for them. Now this is a tactic that patent trolls are supposed to use on people to get their way. It turns out that because they are paid on contingency it works really really well in reverse. Don't forget that.

So what does all this mean? Well, to kind of sum up, it boils down to one thing. Don't negotiate with terrorists. Patent trolls have done more damage to the United States economy than any domestic or foreign terrorist organization in history every year. And what do they do with that money? They plough it right back into filing more troll lawsuits.

Now this is the point in the talk where I'm supposed to come up with some kind of solution for the patent system, and the problem with that is that there are two very large industry groups that have different outcomes in mind for the patent system. The healthcare industry would like stronger protections for inventors. The high tech industry would like stronger protections for producers. And these goals are not exactly diametrically opposed, but they are at odds. And as a result patent trolls can kind of live in the space in between. So unfortunately I am not smart enough to have a solution for the patent troll problem.

However, I did have this idea. And it was kinda good. And I thought I should patent this. (audience laughs) Behold! Patent infringement via mobile device. Defined as a computer that is not stationary. My solution, award me this patent and I will troll them out of existence. Thank you
2012-04-17 04:07:37 PM
2 votes:
I think I know why Drew was wearing the purple.

It was a meme reference

images.icanhascheezburger.com

/that or the Heiniken
2012-04-17 03:37:39 PM
2 votes:
However Drew beat a patent troll, he didn't do it long enough, hard enough, or with a big enough stick.
2012-04-17 03:32:32 PM
2 votes:
There's only one problem: Drew didn't beat the patent troll. He settled. He didn't have to fork over any cash and he isn't bound by an NDA, but he still settled. The troll just decided it was no longer worth their effort. Drew had to pay attorneys quite a bit of money. The troll is a company of lawyers. The suit cost them very little beyond time. To beat them, one of two things would have had to have happened: 1) they drop their suit or 2) they lose their suit in court and Drew wins a counter-suit that asked for punitive damages.
2012-04-17 02:54:34 PM
2 votes:
Yo dawg I heard you liked patents, so I patented getting a patent, you've been served.
2012-04-17 02:52:20 PM
2 votes:
Drew, seriously, it's ok to give yourself the Hero tag. You deserve it.
2012-04-17 02:50:42 PM
2 votes:
I just patented the act of listening. All you motherf*ckers better settle.
2012-04-17 02:47:15 PM
2 votes:
Too short.
2012-04-17 02:45:43 PM
2 votes:
This is pretty good stuff. He is smarter than I thought...not that I thought he was stupid, just all those references to drinking I suppose. I didn't realize Patent Trolling cost over 2 million dollars when you WIN. Yikes.
2012-04-17 02:45:17 PM
2 votes:
i patented purple shirts. you owe me!
2012-04-17 11:05:21 PM
1 votes:

Theaetetus: DrySocket: Gooseberry is a shell company for Intellectual Ventures, Nathan Myrvholds little "innovation" company.

Got a citation for that? Haven't heard that IV is using shells, but I'd be interested to know more.


I got halfway through the thread before caving to post this: When Patents Attack! (new window)

Highly educational, and one of the many reasons I absolutely love TAL. This whole episode is awesome.
/sorry if someone else posted it.
2012-04-17 10:12:19 PM
1 votes:
http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1& u=/netahtml/PTO/search-bool.html&r=15&f=G&l=50&co1=AND&d=PTXT&s1=6,370 ,535&OS=6,370,535&RS=6,370,535

From what I can tell, it doesn't apply to a news aggregator at ALL (The patent is about the delivery of encrypted data followed by the delivery of encrypted keys to guarantee possible regulatory/policy requirements for "simultaneous delivery."), and to the extent it did, it wouldn't be anything more than an invalid "common sense" patent.

So what says you, Theaetus?
2012-04-17 06:41:43 PM
1 votes:

Rent Party: Theaetetus:
That's a great conclusion, but again, without any actual evidence, the patent can't be invalidated simply because you say it was extremely obvious and the Examiner sucked. You need one or more references that teach or suggest every element in those claims, not simply a wiki article about the history of VoIP.

As a burgeoning GED in Law student, let me ask you a serious lawyer like question, purely from an academic standpoint.

Is it necessary that all the elements of the patent be shown to be obvious to invalidate the patent, or only portions of it. If my patent for an automatic carrot peeler has four elements, and someone comes along and legitimately demonstrates my flux capacitor is not original, does that invalidate the entire patent?


The entire claim, as a whole, must be shown to be obvious. I can claim, for example, "a teleportation machine comprising a Sears-manufactured toaster oven; and [super awesome technology]," and the fact that the toaster oven is not new is irrelevant to the claim as a whole.

However, if I claim "a computing device comprising an Apple MacPro; a Microsoft keyboard; an HP mouse; and a Samsung monitor," it's obvious because all of those exist, even if no one has bothered putting together that specific combination (I'm sure someone has, though).

That said...
Is there a severable aspect to patents?

Yes, but it's a different one. If there are 40 claims in the patent, then they must be invalidated separately. Claims 1-39 could be obvious and invalidated by a court, but if claim 40 isn't and you infringe claim 40, you're still farked.
2012-04-17 05:14:35 PM
1 votes:

Theaetetus: The other change that should help is that trolls now have to sue everyone individually... No more single suits against Apple, Microsoft, Google, Toshiba, Drew Curtis, Samsung, etc. as joint defendants, unless they actually were legitimately collaborating on something.
That significantly raises their costs, and makes it tougher for the court to say "Drew's in Kentucky, Microsoft is in Seattle... I guess East Texas is a good place for a suit since it's halfway between."


Oh hey that is handy, I like that one
2012-04-17 04:53:30 PM
1 votes:

Drew: I respectfully disagree...


moviesmedia.ign.com
...I prefer the stick you only have to beat a patent troll with once
2012-04-17 04:40:56 PM
1 votes:

FTGodWin:

It's s TED talk. You can say anything you want at those and everyone believes it.


Pretty much this - when an organization give equal time/weight to an evangelical christians batshiat insane lecture, one has to wonder...

I tend to treat TED talks like an upgraded/modernized version of Popular Science - lots of woohoo thats kickass awesome stories which aren't grounded in a lot of cold hard facts or are just straight-up infomercials... Yes, there are some exceptions...

/ I heard TED talks are pretty demanding and that more then one speaker has had to heel it down the drain while showering in order to adhere to the rigorous schedule...
2012-04-17 04:27:43 PM
1 votes:
I liked the TEd talk. Don't negotiate with terrorists. Drew is now just like Dirty Harry in my book.
2012-04-17 04:13:25 PM
1 votes:

Yuri Futanari: i type wwith m,y p[eenis


I bet it stretches all the way from A to Z.
2012-04-17 03:58:46 PM
1 votes:
When I saw TED jump out at me, I thought it was going to be the inevitable thread about that dumbass Nugent.

Please let the Secret Service find his automatic weapons.
2012-04-17 03:51:47 PM
1 votes:

Theaetetus: Respectfully, Drew, you've got a lot of inaccuracies in that talk.


not a lot of time to go into detail in six minutes, you shoulda seen what all got cut

First, the burden of proof is not on the accused infringer in a law suit to prove they don't infringe, until the patent owner has first met their burden of proof of showing a prima facie case that you do infringe. Maybe you're confusing it with the criminal law burden of proof of "innocent until proven guilty"?

I was never quite clear on what the deal was here. Perhaps you could help explain how it works on the other end. Basically, we didn't infringe on this patent. I realize the courts require evidence of infringement, but apparently they don't up front because the troll didn't provide any. They just said "Fark's infringing and needs to cease immediately" without providing anything else in the complaint.

The reason this particular case was so aggravating, as I mentioned in the talk, was that we flat out didn't infringe on their patent. I'm not sure what evidence they thought they had or who they had to show what to, but the bottom line is - they didn't have any evidence (and couldn't provide any, which is why they exited the case). So yes I know what you're referring to, however in this particular instance Fark was indeed sued by a patent troll who could not provide evidence. This appears to be a common tactic with patent trolls, mainly because by the time they're forced to provide their evidence, the case is several months and several tens or hundreds of thousands of dollars in progress.

Secondly, the "frivolous" patents you mention at the beginning - phone calls, but on the internet; or radio, but for cell phones - don't actually exist. Those are just paraphrased descriptions of what the patent roughly describes, but that's like saying that Toyota's Prius transmission patents are really just patenting "a car, but with electricity!" They're not, and you couldn't get such a patent anyway - the prior art "a car" and "electricity" both exist, so the combination is by definition obvious.

I respectfully disagree - check what's currently being filed in the mobile space. Yes the patents contain more detailed information but what patent trolls do is use their ability to file a lawsuit that might pertain to a company in order to extract a settlement.

That said, your recommendations at the end are great, and I'm glad things worked out well.

Thanks! I think the main point of confusion here is that I'm distilling the experience of a patent troll lawsuit, not a normal patent lawsuit (which would work out pretty much how you describe it - this is a different animal). And like I said, I had six minutes to talk to a non-legal audience so a lot of specifics got dropped. I wouldn't ever deign to tell a room full of attorneys how the process works. The strategy still holds however
2012-04-17 03:41:16 PM
1 votes:

Msol: The weird bluescreen behind Drew was strange, I was actually surprised there was an audience. The whole thing looked a little fake.


it was actually shot on the same stage as the moon landings
2012-04-17 03:40:45 PM
1 votes:

Galloping Galoshes: However Drew beat a patent troll, he didn't do it long enough, hard enough, or with a big enough stick.


No stick is large enough

However if by some miracle I actually get that patent, I'm going nuclear on them
2012-04-17 03:35:36 PM
1 votes:
Had some folks ask me where the data came from. Most of it was from here: The Real Cost of Patent Trolls

Shorter analysis of the same thing from Brad Feld
2012-04-17 03:27:54 PM
1 votes:
dumbimages.net
2012-04-17 03:13:16 PM
1 votes:
Drew, I was quite impressed by the fact that you managed to do that entire 6+ minute talk without using a single mental placeholder.
2012-04-17 03:00:48 PM
1 votes:

towatchoverme: I just patented fingers.

No more posts in this thread.


You can't patent fingers, I already have a patent for "manual-powered interaction apparatus"
2012-04-17 02:59:26 PM
1 votes:
Too bad we can't get the legal system to highlight them in red.

Also, I like the terrorist reference. It is truly the godwin of our age.
2012-04-17 02:53:56 PM
1 votes:
I just patented patents.

[game_over.jpg]
2012-04-17 02:52:03 PM
1 votes:

Mirrorz: I just patented the act of listening. All you motherf*ckers better settle.


I just patented settling in lawsuits. BWAHAHAHAHHA
2012-04-17 02:47:48 PM
1 votes:
I just patented commenting on Drew's TED patent troll thread, so pay up, biatches!!
2012-04-17 02:44:53 PM
1 votes:
Glad to see your getting proper attention for our little circus, Drew
 
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