If there’s a public service branch of a well-known non-profit organization promoting a war against “stupid,” count me in. Let’s begin with the branch of the Electronic Frontier Foundation aiming to “eliminate stupid patents.” Glib as it sounds, that’s its real name and exactly what it aims to do.
The department, headed by EFF attorney Julie Samuels, looks into the problem of patent trolls and seeks ways to snuff them out (and in the process fix the patent system).
Samuels, whose official title is the Mark Cuban Chair to Eliminate Stupid Patents, has a vast history in IP litigation. Before joining the EFF she worked at a private practice in Chicago, focusing primarily on intellectual property. Her current rank stems from a $250,000 donation from everybody’s favorite outspoken billionaire entrepreneur Mark Cuban, who donated to the organization to help fix the “shameful” and “broken” patent system.
According to Samuels, patent trolls are not new. The reason they’ve been bubbling to the surface is because these holders of “stupid patents” originally targeted big companies. Now, as this kind of legal action becomes more commonplace, smaller companies are beginning to feel the burden of patent trolls. In many ways it’s easier to rally around the little guy than corporate behemoths who can hire thousand-dollar-an-hour corporate attorneys to fight their battles.
Last month, the New York Times ran a feature on Erich Spangenberg, the CEO of the law firm IPNav. The story (a great read) documents Spangenberg’s rise to notoriety and fortune. Now a millionaire, the man has spearheaded cases against more than 1,638 companies in an attempt to “turn idle patents into cash cows.” And, according to the Times, now most of the legal cases are against “small or medium sized” companies, which costs these businesses a total of $29 billion per year. And as all these small businesses suffer, people like Spangenberg walk home with a salary of $25 million a year.
Statistics like these make it clear that something needs to change. While Samuels enjoyed the work, she ultimately found that in terms of private IP litigation “public interest often gets ignored.” So a position at EFF seemed to fit the bill in terms of IP law and advocacy for the greater public good.
The “stupid” part sounds kind of contrived, right? Well, it actually isn’t. It’s just the most succinct way to explain the issue at hand. “The fundamental problem,” she says, “is that we have a bunch of stupid patents.” She thinks it’s necessary to change the culture and vernacular around patents. People, she says, need to realize just how stupid patent trolling is, and the name is the first step toward letting that be known.
Meanwhile, part (if not most) of the problem with patent law comes from the trolls. Pando’s Carmel DeAmicis defines patent trolls as “organizations that buy up ambiguously worded patents that use said patents to extort money.” What Carmel calls “ambiguously worded,” Samuels would call “stupid.”
One thing’s for sure, though, this can’t be handled on a case by case basis. This is because, right now, “the laws are skewed toward getting people rich.” This is to say that patent trolling is so pervasive because the laws allow it.
As she sees it, the reason why patents were invented wasn’t necessarily for monetary remuneration, but to promote innovation. And, “innovation and making money aren’t necessarily the same thing.” While it’s true that innovation can lead to cash, patent laws in their current iteration focus primarily on the securing of funds because of the novel idea and not the securing of the idea itself.
So what’s at stake? “Nimble startups who create new things,” she says. This is why she views patent trolls as a public service issue, and not just a economic legislative one.
The Eliminate Stupid Patents brigade works to provoke change. Getting the word out is only one small front in the battle.
“The only way we can do this effectively,” Samuels told me, “is if we see movement by Congress, the president, the courts.” Recently two patent reform bills were introduced that the EFF has supported. They are called the “Patent Litigation and Innovation Act,” and the “Stop the Offensive Use of Patents (STOP) Act.” The two acts work to reform the process behind patent litigation. This includes adding interested parties to intervene on behalf of customers and removing veils of secrecy behind patent owners (very often other parties are financing patent troll cases). In addition, The STOP Act works to provide more pro-bono legal services to those “under-resourced” in the legal process. As Samuels wrote in her blog post about these bills, they would “go a long way toward making life more difficult for patent trolls.”
In addition to congressional lobbying, Samuels has also worked to start an FTC troll investigation and increased interest from the Supreme Court about patent troll cases.
Most recently, however, the EFF helped spearhead a new crowdsourcing tool for would-be patent troll victims. The site, entitled Trolling Effects, provides a database of patent demand letters, and a multitude of information on trolls and how to deal with them. Trolling effects also encourages users to submit their own patent demand letters to help build the database.
All of these highlight the smattering of tactics Samuels is taking to combat the problem of patent trolls. Throughout our chat she highlighted to me that what’s at stake is not just corporate dollars, but the ideas and project of future entrepreneurs. New products will not be made due to contingencies in ambiguously worded legal documents. And, as she sees it, this puts “a serious chilling effect on the exact types of activities we want to incentivize.”
Whether you want to call it “stupid” or “ambiguous,” what’s important is that patent trolls are consistently and increasingly hurting small to medium sized businesses. Those who don’t know much about the IP issues should probably read up on it — especially startups claiming a new and innovative product. There’s nothing worse than being blindsided by a patent troll. Samuels’ work is to help and educate all those out there about these issues.
As for me, I’ll continue searching for more organizations railing against the “stupid.”
[Image via EFF]
* The PandoDaily series “Patent Troll Smackdown” is brought to you by the Application Developers Alliance. To join the fight against patent trolls and tell Congress that innovators need patent reform please visit devsbuild.it/fightpatenttrolls. (Sponsored message.)