Last week I read a headline saying that "US shops and restaurants fight patent trolls" with print and radio ads in more than a dozen states. I looked up the campaign site and saw that the campaign website runs on a subdomain of the Internet Association's website. The Internet Association's members include, among others, Google and Rackspace. According to Wikipedia, Google was one of only four founding members.
I'm not going to defend the trolls, nor would I deny that there are too many "bad patents" (which the campaign asks politicians to "stop") out there. But there are certain aspects of this campaign that I find confusing at best and disingenuous at worst.
It appears that the Internet Association is really the driving force behind the campaign and may be its primary source of funding. But the campaign talks about the economic impact of patent trolls on "supermarkets, restaurants, retailers and startups". Startups are a more complex issue that I'll talk about on some other occasion (here's a link to a recent story of a patent troll and an app developer). Let's focus for now on "supermarkets, restaurants, retailers". The NPR report on this campaign contains an interesting quote from someone claiming to represent at least one of those categories of stakeholders:
"We are not for the most part developing these technologies," he says. "We're simply using them."
If the problem is that they are sued over technologies they use (but which others developed), wouldn't it be the most logical demand for them to make to insist that their technology vendors defend them in court against the trolls? If the asserted patents are "bad patents", sophisticated and deep-pocketed technology companies should be able to shoot them down, wouldn't you think?
This would have a self-regulatory effect: if tech companies fight back, trolls asserting weak patents would lose lawsuit after lawsuit, patent after patent, and only legitimate intellectual property claims would remain.
From the perspective of shops and retailers it would make a whole lot more sense to campaign for indemnification by vendors (or simply to refrain from buying products if their vendors don't indemnify), which is an option under the law as it stands, than to push for ambitious, far-reaching changes to the legal framework.
It's also a non sequitur that the way to combat "trolls" (whatever definition one may use) is to "stop bad patents" ("Congress must act now to stop bad patents and stop the trolls"). Studies have shown that non-practicing entities are reasonably choosy when buying up patents that they later assert. There are certainly some bad patents out there asserted by trolls, and fighting bad patents is never a bad idea -- but there's no evidence of trolls holding, on average, more dubious patents than other patent holders do (the opposite could even be true).
Let me be clear: the question of who funds this campaign wouldn't matter if this campaign didn't try to create the impression that restaurants and retailers suffer so much under trolls that they pour many millions into an anti-troll, anti-bad-patents, anti-all-bad-stuff campaign. And it would matter much less (or maybe not at all) if it advocated, with a reasonable degree of particularity, the most logical solution to a pressing problem. But when I look at this campaign, I see a disconnect between the problem(s) it raises and the broad, vague and general solution ("stop bad patents") it proposes; the claim of trolls costing the economy $80 billion a year does not convince me; and these substantive concerns of mine are reinforced by a closer look at who's behind this campaign and what the real agenda may be.
Google and Rackspace, the two Internet Association members I mentioned further above, jointly submitted an amicus curiae brief to the Federal Circuit arguing that Apple should not be allowed to stop Samsung's blatant copying. Rackspace also signed an amicus brief supporting Google against Oracle in the Android/Java copyright infringement case. These two companies are close anti-IP buddies, plain and simple. They have in common a business model that's more about exploiting other parties' IP than about creating their own (Rackspace is more extreme in this regard than Google, but Google is more reckless in its approach to other companies' IP).
Google is still asserting, in the U.S. and (especially) in Germany, a patent that different judges have already found to be a "bad patent": Motorola's push notifications patent. For further detail, see last week's post on a recent decision by an appeals court to lift an injunction because the patent is clinically dead.
A federal jury last week found Google's Motorola to have breached the duty of good faith and fair dealing in connection with its H.264 (video codec) and IEEE 802.11 (WiFi) declared-essential patent portfolios, effectively exposing it as a patent troll and finding it guilty of egregious conduct that none of the companies typically referred to as "patent trolls" has been convicted of to date.
There's obviously a narrower definition of "patent troll" that Google doesn't meet. But there are interesting connections between Google and more narrowly-defined "patent trolls". A company that Ars Technica simply calls "'shopping cart' patent troll" uses the very same law firm as Google does in most of its patent lawsuits.
Isn't a "shopping cart patent troll" what the retailers whose interests the campaign claims to represent are particularly concerned about?
Using again a definition of "patent troll" that isn't limited to non-practicing entities, the world's first "shopping cart patent troll" was Amazon back in 1999, with a clearly anticompetitive and anti-innovative agenda. Oh, wait. Amazon is one of Google's Internet Association co-founders. Pot, meet kettle. In some cases, you use the same lawyers, who may be happy to introduce you to each other. But don't expect sophisticated policy-makers in Washington DC to be fooled by a campaign like this one. They'll figure you out, and they'll ask some of the questions I raised in this post (such as whether indemnification couldn't take care of the problem of lawsuits against retailers and restaurants for the most part).
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