Intellectual Ventures Loses Its Shine: Will Its Business Model Ever Work?

Techdirt has always been sceptical about Nathan Myhrvold's business plan for Intellectual Ventures (IV) -- build up a huge portfolio of patents, simply so that it can then license them to those that will, and sue those that won't. Others, however, have been dazzled by Myhrvold's pedigree as an extremely wealthy ex-Microsoft manager, and by the fact that patents have undeniably become a central concern for the tech industries in recent years, which suggests that there is plenty of money to be made from them. 

On Techdirt.

The True Cost of the Patent Trolls: Half a Trillion Dollars

I've written a number of pieces about the inherent flaws of patents, especially in the field of software. Those are mostly to do with how the good intentions of patents are not realised. But alongside those who try to use patents as they were supposedly intended are another group who are essentially parasites - those who seek to game the system, and extract money from its weaknesses: the patent trolls.

Aside from the patent trolls themselves, few have a good word for them, since it's pretty obvious to everyone that they suck money out of companies that make stuff, and thus act as a brake on real innovation. But those feelings have been largely unquantified. Now, thanks to recent work of the authors of the seminal book “Patent Failure”, James Bessen and Michael Meurer, along with a third author, Jennifer Laurissa Ford, we have perhaps the first rigorous estimate of the damage they cause. It's even worse than we thought:

On Open Enterprise blog.

Open Invention Network in the Spotlight

Back in September, Mozilla made an announcement:

This week Mozilla joined Open Invention Network as a licensee. OIN is an organization which helps protect the Linux ecosystem by building a variety of defenses against patent attacks. These defenses include both traditional mechanisms, like defensive patent pools, and more innovative approaches, like the Linux Defenders project, which uses a variety of methods to proactively prevent the publication of particularly egregious patents. As a licensee, we’ll have access to OIN resources in case we’re threatened by operating entities with patents, and over time we’ll likely become more involved in providing our own ideas and resources to OIN projects.

On Open Enterprise blog.

The King of the Trolls Strikes Gold

Well, this is rather droll. The other day I was writing about the patent troll to end all trolls, Intellectual Ventures. And now we have this:

Patent #7,679,604 — “Method and apparatus for controlling a computer system” — the broad motion-control patent I’ve been writing about all week, has passed through a number of hands over the years. First assigned to ArrayComm in 2006, it was subsequently handed over to Durham Logistics, a limited liability company which is itself managed by another obscure Las Vegas LLC called Memscom. But there’s one more company at the end of that oblique line of ownership: Intellectual Ventures, an “invention capital firm” or patent troll, depending on your views on innovation and intellectual property.

On Open Enterprise blog.

Beware the King of the Trolls

If you haven't heard of Intellectual Ventures, you will do. Set up by ex-Microsoftie Nathan Myhrvold, with investments from Microsoft among others, it is basically a patenting machine – filing and buying them in huge quantities. Note that it doesn't actually *use* these patents – except to threaten people with. In other words, Intellectual Ventures is a patent troll – or, rather the King of the Patent Trolls.

On Open Enterprise blog.

Intellectual (Monopolies) Ventures

I've been avoiding this story about nathan Myhrvold's Intellectual Ventures using patent trolls as proxies because it's just beyond even the deepest irony, and thus immune to my pen. But then I came across this post that puts it so well, and I felt had to pass it on:

Until recently, one of the few points Myhrvold could make in his own favor is that he hadn’t started suing firms that declined to license his patent portfolio. I say “until recently” because we’re now learning that the lawsuits have started. IV has begun selling off chunks of its patent portfolio to people like Raymond Niro with well-deserved reputations for being “patent trolls.” Threatening to sell patents to a third party who will sue you is more subtle than threatening to sue you directly, but the threat is just as potent. Myhrvold’s “sales pitch” to prospective licensees just got a lot more convincing.

The fundamental question we should be asking about this business strategy is how it benefits anyone other than Myhrvold and the patent bar. Remember that the standard policy argument for patents is that they incentivize beneficial research and development. Yet IV’s business model is based on the opposite premise: produce no innovative products, spend minimal amounts on research and development, and make a profit by compelling firms that are producing products and investing in R&D to pay up. Not only does this enrich Myhrvold at everyone else’s expense, but it also reduces the incentive to innovate, because anyone who produces an innovative product is forced to share his profits with Intellectual Ventures. Patents are supposed to make innovation more profitable. Myhrvold is using the patent system in a way that does just the opposite. In thinking about how to reform the patent system, a good yardstick would be to look for policy changes that would tend to put Myhrvold and his firm out of business.

That last line is an absolute killer.

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What Shall We Do About Software Patents?

One of the central issues facing free software around the world is what can be done about the threat of software patents. These are fundamentally incompatible with free software, since patents are about enclosing the intellectual commons – giving ideas an owner - and free software is about expanding it for all to enjoy by sharing ideas. But the particular challenges are quite different in different jurisdictions....

On Open Enterprise blog.

More Wisdom on Intellectual Monopolies

Good to see that I don't have a, er, monopoly on outraged posts about intellectual monopolies:

This is why the idea of Intellectual Property is utter nonsense. We cannot purge our minds of what we already know. That which we can perceive with the senses cannot, and should not, be controlled, but the Intellectual Monopolists plainly think it should. Orwell's predictions have turned out to be startlingly accurate.

Let Us Now Praise Patent Troll Trackers

So the anonymous patent troll tracker is anonymous no more:

My name is Rick Frenkel. I started in IP over 10 years ago, as a law clerk at Lyon & Lyon in Los Angeles. After a few years there as a law clerk and attorney, I litigated patent cases for several years at Irell & Manella. Two years ago I moved to the Valley and went in-house at Cisco. In my career, I have represented plaintiffs, defendants, large companies, small companies, individual inventors, universities, and everything in between. I currently work at Cisco.

Do I care? Not a jot. What I care about is this:

Now that I have been unmasked, I’m not sure where the blog is going from here. I’d like to keep it going. For one, I still have quite a few post ideas in me (indeed, I have several already prepared, waiting to go). Further, there aren’t many in-house counsel blogging, and I think we deserve a voice. I’m going to take off the next couple of weeks to think it over.

He can be called Rick or Rumpelstiltskin for all I care: he performs a hugely valuable service that the world of computing would be poorer without. Let's hope those couple of weeks of thinking it over mark a hiatus and not a halt.

A Historic Idea: How to Deal with Patent Trolls

Do not miss this fascinating paper, which looks at spooky parallels between today's patent trolls, and what were called "patent sharks" in the 19th century - people who bought up (agricultural) patents purely with a view to extracting money from hapless and helpless victims. Even better than the historical parallels are the lessons to be learned:

The chief lesson that emerges from this comparison is that certain types of patents are more vulnerable to trolls than others. Opportunistic licensers flourish when there is a large gap between the cost of getting a patent and the value that can be captured with an infringement action. This sort of arbitrage is likely to occur when: (1) those being sued cannot easily substitute away from the disputed technology; (2) the average scope of improvements in the industry is incremental, which makes the outcome of infringement litigation hard to gauge; and (3) the cost of acquiring and retaining patents is low. Farm tools and modern tech patents share this set of traits, albeit for different reasons, and hence they suffer at the hands of trolls more than other types of patents.

The other lesson that can be drawn from the Gilded Age experience is that the flood of opportunistic litigation cannot be stemmed through substantive changes in patent rights. First, industries unaffected by trolls view these proposals as harmful to their rights and lobby hard against them. As a result, every effort to address the issue through a comprehensive solution has failed in Congress. Second, since trolls and sharks succeed as long as they reach settlements, a substantive solution will be ineffective because most of these cases never get to court. So long as there is some uncertain chance that an infringement suit will succeed, defendants will tend to settle. In the nineteenth century, Congress eliminated this risk by wiping out the patents that were fueling opportunistic litigation. This suggests that abolition may be the only solution for modern trolls, at least with respect to patents for business methods and software.

Yup: make business methods and software patents history.... (Via TechDirt.)

Behold: Son of SCO

Well, that nice Mr. Ballmer did warn us, and here it is:

Plaintiffs, IP Innovation L.L.C. and Technology Licensing Corporation (collectively “Plaintiffs”) complain of defendants Red Hat Inc. (“Red Hat”) and Novell Inc. (“Novell”) as follows:

1. This is a claim for patent infringement arising under the patent laws of the United States, Title 35 of the United States Code.

Of course, this is replete with ironies.

First, "IP Innovation" - as in, zero innovation. These are patent trolls, and the patent - which looks like basic windowing technology - is both obvious and probably covered by prior art.

Secondly, poor old Novell: they probably thought they were immune to this kind of thing. But their deal with Microsoft says nothing about not getting sued by trolls. Or rather, trolls with interesting connections to Microsoft:

So in July one Microsoft executive arrives [at IP Innovation]; then as of October 1, there is the second, a patent guy. October 9, IP Innovation, a subsidiary, sues Red Hat. And Novell. So much for being Microsoft's little buddy.

The good news is that this is all too late: even in the US, a modicum of sanity is returning to patents as the US Supreme Court begins to rein in some of the excesses that have spawned in the last decade. The other good news is that Microsoft will come out of this looking bad, again. However much they huff and puff, the clear link back to them shows them not only to be underhand, but cowards, too.

Do Not Feed the Patent Trolls

Good point here about a big problem with the apparently welcome Peer to Patent project:

Helping patent trolls with their QA is like going through bandits' ammunition and throwing out the dud rounds for them before they try to rob you.

And sensible advice, too:

If you have Prior Art, print it out and put it in your safe deposit box. Make sure that the source is verifiable, but don't tell anyone what the source is. Don't say it's from "the June 1997 login;" or "comp.sources.unix in May 1986". If you want, borrow a tactic from Tim O'Reilly and tell people that you have prior art for a certain patent, but don't give attackers any more information than you have to.

More generally, perhaps the free software community should set up a shadow scheme that tracks all of these patent applications, and works to find prior art, which it then stores safely against a rainy day.

Of Patent Trolls and Patent Wimps

Who needs patent trolls when you've got patent wimps?

If broad patent reform is a lost cause - as seems probable - Mr. Balsillie and Mr. Zafirovski would be wise to spend their energies bulking up their in-house intellectual property teams and hiring good U.S. lawyers.

...

The Canadians may find that it's easier, and significantly cheaper, to swallow their pride and work within the U.S. system, rather than betting on its demise.

Oh, yeah, right: just like it would have been far more sensible for Richard Stallman just to have accepted the inevitability of closed-source, proprietary software back in the 1980s.

Idiotic patents - and indeed the entire, broken US patent system - have never been under such pressure as now; more and more people are realising that patents do not promote innovation, but actually act as a brake on it. As ideas of openness spread, the present system of intellectual monopolies will gradually be exposed for the sham it is. Any suggestion that people should "swallow their pride" is misguided in the extreme.

Good News Patently Comes in Threes

I've written often enough about patent absurdities, so it's been a real pleasure to observe this last week not one, but three promising decisions that might start to undo past idiocies.

First, the US Supreme Court ruled that patent owners do not have an automatic right to an injunction that could take out another business accused of infringement. This is fantastic news, because it delivers an extremely long-overdue kick in the corporate goolies to patent trolls, whose entire business method is to use the threat of such injunctions as a way of extorting money from companies who would really rather just get on with their business.

Next, the US Patent and Trademark Office agreed to a re-examination of Amazon.com's 1-Click patent. This is an example of an obvious idea that should never have been graced with a patent, but now it seems that there is even prior art that would argue against it. A plucky Kiwi, Peter Calveley, not only dug up the prior art, but also raised some dosh to apply for a re-examination.

Finally, one of the most idiotic patents given in recent years - for pretty much the entire idea of e-commerce, would you believe it - has finally been declared invalid. There's bound to be an appeal, but at least sense is starting to seep into the septic tank that is US patents.