A Sad Statement: The Best Way To Deal With Patent Threats Is To Be Less Open

from the bad-for-innovation dept

Wed, Oct 10th 2012 12:05pm — Mike Masnick

Colleen Chien and Stefani Shanberg have a post over at TechCrunch that provides ten suggestions for how startups can and should deal with patent threats from trolls these days, which is unfortunately depressing. It's not because the ideas aren't good -- they're exactly what most startups probably should know. But the last item really bugs me:

10. Advice For All Times: Don’t Be An Easy Target

Trolls pick their targets by studying websites, looking at product specs, and trying to make out a case that you need their patent. Don’t make it easy for them. Require registration before granting access to whitepapers, detailed documents, or video tutorials that delve into the behind-the-scenes details. Think twice about being on customer lists or advertising the ins and outs of your business, the products you use, etc., unless there’s a good business reason for doing so. Often it is the companies that advertise most successfully that are the most frequent targets of troll demands — troll threats should not drive business decisions, but don’t be surprised when your successful marketing campaign is followed by an onslaught of troll letters.

This isn't a surprise. Of course, we've highlighted how companies often get hit up by patent trolls right after they make news. But what this is really saying is "don't be open." And while that may be a good strategy for a company seeking to avoid patent lawsuits, it's a horrible strategy for increasing innovation. Research into innovation and economic growth have shown time and time again that what helps create that kind of innovation is more openness and more sharing. It's the information sharing that made Silicon Valley into Silicon Valley.

What's stunning -- and depressing -- is that the patent system is supposed to be the thing that encourages innovation. And yet, because it's become totally dysfunctional, one of the recommendations for how to avoid running afoul of it now... is to do the exact thing that holds back and limits innovation. What a shame.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: innovation, openness, patent trolls, patents

41 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 10 Oct 2012 @ 12:19pm

Missed one option
11. Do not have any contact with the USA.
[ link to this | view in chronology ]
Anonymous Coward, 10 Oct 2012 @ 12:20pm

Wrong, wrong, wrong
That article is just wrong, wrong, wrong

You want best advice to avoid patent threats? �Number one best advice: Startup somewhere else. Stay out of USA.
[ link to this | view in chronology ]
- Anonymous Coward, 10 Oct 2012 @ 12:52pm
  
  Re: Wrong, wrong, wrong
  That's ignoring a pretty big market, wouldn't you say?
  [ link to this | view in chronology ]
  - Anonymous Coward, 10 Oct 2012 @ 1:34pm
    
    Re: Re: Wrong, wrong, wrong
    That's ignoring a pretty big market, wouldn't you say?
    
    World production is about $60 trillion, last I checked. US economy is about $15 of that or so.
    
    One-quarter of the world economy. One-hundred percent chance of getting sued into oblivion�as soon as you show enough profit for the vultures to swoop down. Do the math.
    
    �
    
    From a comment on a related story over at Ars...
    US patent court in Marshall, Texas: An insult to Kangeroos everywhere.
    [ link to this | view in chronology ]
    - Anonymous Coward, 10 Oct 2012 @ 2:51pm
      
      Re: Re: Re: Wrong, wrong, wrong
      Yeah, like I said, "One-quarter of the world economy" constitutes a "pretty big market."
      
      BTW, I think your math might be off regarding that 100% chance.
      [ link to this | view in chronology ]
      - Anonymous Coward, 10 Oct 2012 @ 4:41pm
        
        Re: Re: Re: Re: Wrong, wrong, wrong
        No.
        
        Every. Single. Successful. Company. Is. Frivolously. Sued.
        
        Every single one. The only difference is some have the luck or resources to win in court or simply cut a cheque.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 12 Oct 2012 @ 3:55pm
        
        Re: Re: Re: Re: Re: Wrong, wrong, wrong
        Ok, so now that you've retracted the "into oblivion" portion of your earlier statement, is there anything else you'd like to retract?
        
        I just want to get all the retractions out of the way before asking you to back it up.
        [ link to this | view in chronology ]
  - That One Guy (profile), 10 Oct 2012 @ 3:30pm
    
    Re: Re: Wrong, wrong, wrong
    If staying out of the US market is the difference between having a successful, if slightly smaller, business, and having no business at all due to being sued into oblivion due to a barrage of shakedown letters from patent trolls... suddenly the slightly, or even moderately smaller market you're selling to becomes all sorts of acceptable in comparison.
    [ link to this | view in chronology ]
    - Anonymous Coward, 12 Oct 2012 @ 3:56pm
      
      Re: Re: Re: Wrong, wrong, wrong
      Sure, but that's not a very likely "if", I think.
      [ link to this | view in chronology ]
- gorehound (profile), 10 Oct 2012 @ 12:58pm
  
  Re: Wrong, wrong, wrong
  I have been slowly thinking of the same line as you did.Why even bother to start up here in your own Nation when your own Nation will do nothing to help you innovate.The US Patent System is so messed up it is not leading innovation but restricting it and so goes USA Innovative Tech.
  Down the Drain or in Reality Down a Lawyer's Pockets and some A-Hole Patent Troll or some other Company buying A-Hole Lame Nonsense Patent.
  There must be some cool Nations where you can start up a decent Company, not be sued, live in nice climate, and feel welcomed and wanted.
  [ link to this | view in chronology ]
  - Anonymous Coward, 10 Oct 2012 @ 3:41pm
    
    Re: Re: Wrong, wrong, wrong
    The problem with moving else wghere is that sooner or latter the USA patent system will be imposed on yur chosen destination by a trade treaty. At that point you will be sued for back royalties.
    [ link to this | view in chronology ]
DMNTD, 10 Oct 2012 @ 12:38pm

Looks like the patent system is coming to fruition. Great plans take time haha, what a disaster.

I just have to say, those who want a piece of the pie have led to this problem. Every time an argument about patents and monopolies comes up, you have usually only two extremes. Those who want it and those who find it morally bankrupt. The ones who want to use it sometimes admit they want what so few of these bratz have managed gain.

Point being copyright and patents to me, have been made to overtime do just these things they are doing. It was just a matter of time, much like where the USA is trying to head towards now. ohhh snap.
[ link to this | view in chronology ]
- Anonymous Coward, 10 Oct 2012 @ 12:53pm
  
  Re:
  If you rephrase that in English it will be easier to understand.
  [ link to this | view in chronology ]
  - Anonymous Coward, 10 Oct 2012 @ 1:43pm
    
    Re: Re:
    He's just speaking in his own English dialect that no one else can really understand.
    [ link to this | view in chronology ]
  - DMNTD, 10 Oct 2012 @ 1:53pm
    
    Re: Re:
    I'm sorry, I don't speak slow enough for simpletons. Never will, is it a wonder you are so behind?
    [ link to this | view in chronology ]
    - Anonymous Coward, 10 Oct 2012 @ 2:53pm
      
      Re: Re: Re:
      C'mon, man. Are you really going to defend this abortion of a sentence: "Point being copyright and patents to me, have been made to overtime do just these things they are doing."?
      [ link to this | view in chronology ]
      - DMNTD, 10 Oct 2012 @ 3:16pm
        
        Re: Re: Re: Re:
        HOW great sage! Where did I befuddle!?! It says what it means?
        
        It's JUST as laughable that you're doing exactly as I claimed your types do. Avoiding the point, all the while as transparent as can be. Just admit you want to be a circle jerking fat cat and using rare sentence structure to hide you sin.
        [ link to this | view in chronology ]
        
        John Fenderson (profile), 10 Oct 2012 @ 4:09pm
        
        Re: Re: Re: Re: Re:
        To be fair, I'm not exactly sure what you were saying, either.
        [ link to this | view in chronology ]
        
        Not an Electronic Rodent (profile), 11 Oct 2012 @ 2:21am
        
        Re: Re: Re: Re: Re:
        to overtime
        Well for a start, last time I checked "overtime" wasn't a verb.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 11 Oct 2012 @ 8:09am
        
        Re: Re: Re: Re: Re:
        Damn! His science is too tight!
        [ link to this | view in chronology ]
Anonymous Coward, 10 Oct 2012 @ 12:51pm

I can attest that this is good advice. I have investigated websites and marketing materials attempting to find out of services infringe a patent, and it's a lot harder if it's not all laid out for the world to see.

Whether that's a sad state of affairs is up for debate. If you assume that patent infringement is not a bad thing, then it's a sad state of affairs. If you assume that patent infringement is a bad thing, then it's just like any other bad thing you shouldn't put out in the open for everyone to see.
[ link to this | view in chronology ]
- Anonymous Coward, 10 Oct 2012 @ 1:41pm
  
  Re:
  It is easy to know if your services infringe a patent: they do.
  
  Out of the hundreds of thousands patents out there, several will apply to your service. And you will always miss some, even if you do a patent search. What is more, some of them will be issued and published only after you are already making use of them.
  
  Even using only technology from more than 20 years ago will not save you, since new patents are sometimes issued on old technology.
  
  Patent infringement is a fact. Being less open only makes it harder to find.
  [ link to this | view in chronology ]
  - Anonymous Coward, 10 Oct 2012 @ 2:54pm
    
    Re: Re:
    "It is easy to know if your services infringe a patent: they do."
    
    Lol. Maybe so. But that doesn't help the guy who is trying to figure out whether you infringe his specific patents.
    [ link to this | view in chronology ]
- Prisoner 201, 10 Oct 2012 @ 11:54pm
  
  Re:
  "Whether that's a sad state of affairs is up for debate. If you assume that patent infringement is not a bad thing, then it's a sad state of affairs. If you assume that patent infringement is a bad thing, then it's just like any other bad thing you shouldn't put out in the open for everyone to see."
  
  There is a point where the troll patent infringement suits are so numerous compared to the cases the system was designed to protect against that the net impact of the patent system is negative.
  
  At that point it provides more value to society to ditch the patent system entirely than keeping it.
  
  In my opinion, that point was reached some time ago.
  [ link to this | view in chronology ]
Anonymous Coward, 10 Oct 2012 @ 12:59pm

In the interest of fostering innovation, scientists/engineers in a company's employ should be required to maintain detailed lab notebooks (digital format is fine), and then publish them at COB each day on an unrestricted basis for the benefit of everyone outside the company. Who knows? Maybe the project you are working on could pass to market more quickly in the hands of one of your competitors, with your payback being satisfaction that you have helped society.
[ link to this | view in chronology ]
Anonymous Coward, 10 Oct 2012 @ 12:59pm

First rule of patents
The first thing that a patent attorney will tell you if you want to check to see whether your product infringes on any patents is not to look at any patents. That's the worst thing you can do because now you're willfully infringing on said patents. So basically what patents are supposed to do, increase innovation by publishing patents so people can license them for use in their own products without having to do the work, is not done because people don't want to be found willfully infringing and paying triple damages.
[ link to this | view in chronology ]
- Anonymous Coward, 10 Oct 2012 @ 2:56pm
  
  Re: First rule of patents
  That's not really accurate (or at least not accurate for all cases).
  
  "Willful blindness" can get you a willful infringement judgment as well, so it's really going to depend on your situation whether a freedom to operate opinion or some other search makes sense.
  [ link to this | view in chronology ]
  - Anonymous Coward, 11 Oct 2012 @ 4:19am
    
    Re: Re: First rule of patents
    Wilful blindness requires a court case and a judgement against you. It's still better to be "blind", whether wilfully or not.
    [ link to this | view in chronology ]
    - Anonymous Coward, 12 Oct 2012 @ 3:59pm
      
      Re: Re: Re: First rule of patents
      That doesn't make any sense.
      
      A finding of willful infringement requires a court case and judgment, regardless of whether it's based on knowledge or willful blindness.
      [ link to this | view in chronology ]
Anonymous Coward, 10 Oct 2012 @ 1:39pm

"A Sad Statement: The Best Way To Deal With Patent Threats Is To Be Less Open"

I've already said this on Techdirt before, a long time ago. It's obvious.
[ link to this | view in chronology ]
- Anonymous Coward, 10 Oct 2012 @ 1:46pm
  
  Re:
  http://www.techdirt.com/articles/20120702/09044019553/james-watson-co-discoverer-dna-says-patenting- human-genes-was-lunacy.shtml#c215
  
  There you go.
  [ link to this | view in chronology ]
The Amazing Sammy (profile), 10 Oct 2012 @ 2:32pm

Or...
Set your company up in such a way that nobody in their right mind would even think about suing you. Then you can be as open as you like.
[ link to this | view in chronology ]
- Anonymous Coward, 10 Oct 2012 @ 2:57pm
  
  Re: Or...
  How?
  
  Name it "Mafia-Connected Murderers LLC"?
  [ link to this | view in chronology ]
  - That One Guy (profile), 10 Oct 2012 @ 3:49pm
    
    Re: Re: Or...
    Hmm, it would involve taking a pretty large hit to profits, but perhaps post, publicly, that say 25% of your profits will be donated to orphanages, animal rescue shelters, food banks, etc. with the list of recipients made public and able to be voted on and suggested on, by the public.
    
    Anyone trying to sue a company like that would quickly find their name and the name of the firm they are from so toxic that no-one would ever be willing to hire them again.
    [ link to this | view in chronology ]
    - John Fenderson (profile), 10 Oct 2012 @ 4:12pm
      
      Re: Re: Re: Or...
      That won't stop them. Patent trolls couldn't care less about their image. If they could make profit from outright closing down orphanages, food banks, etc., they would do it without thinking twice.
      [ link to this | view in chronology ]
      - That One Guy (profile), 10 Oct 2012 @ 6:53pm
        
        Re: Re: Re: Re: Or...
        Good point, I suppose I was thinking about a person/company that has to be hired by someone to actually take action, in which case their image would be very much important to the one doing the hiring.
        
        If they can cause the damage on their own on the other hand, then they really don't care, and have no reason to care, how slimy they look.
        [ link to this | view in chronology ]
cm, 10 Oct 2012 @ 3:57pm

toxifying doesn't work
"Anyone trying to sue a company like that would quickly find their name and the name of the firm they are from so toxic that no-one would ever be willing to hire them again."

Patent trolls are hired by no one. They don't care about having a good name. They are all essentially an empty office in Marshall, TX, a lawyer, and a guy making money off other peoples' life's work.
[ link to this | view in chronology ]
relghuar, 11 Oct 2012 @ 7:37am

...supposed to be the thing that encourages innovation...
Sorry Mike, you're officially a dinosaur.
While the patent (and copyright) system might have perhaps been meant to encourage innovation some 200+ years ago (and I'm not really sure it was its real motivation even back then), it hasn't been used even remotely in that way for, like, over a century? So please, get back to present.
Trolling RULEZ! Innovation SUCKS!
[ link to this | view in chronology ]
vic Kley, 11 Oct 2012 @ 10:52am

Great Advice for the Inventor
Sure hide everything and subscribe to Masnick's rag (oh wait it's digital so it's a drag?), Masnick's blop, eh blopple-twiddle, twittle...yeah twittle.

Infringement is tallied backward 6 years so inventors don't want to find start-ups they want to find their inventions being used by successful maturing companies.

Hiding the actual facts of your product increases the damages available to the inventor.
[ link to this | view in chronology ]
Don Sauer, 11 Oct 2012 @ 6:55pm

Thinking Differently
Right now, the legal system is being used to provide the incentive system for patents. Could the some of our present day innovation be directed at inventing a new way to reward and encourage inventions that does not involve taking someone to Court?
[ link to this | view in chronology ]
- Vic Kley, 12 Oct 2012 @ 5:41am
  
  Re: Thinking Differently
  This already happens! It's even happened to me. It's called honesty where someone or some company actually licenses your invention because they use it.
  
  In my experience it is rare and almost never a large company.
  [ link to this | view in chronology ]