House IP subcommittee looks for further ways to curb patent trolls after TC Heartland decision

By Steve Brachmann
June 18, 2017

Rep. Darrell Issa (R-CA) displaying U.S. Patent No. 1

On the morning of Tuesday, June 13th, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet held a hearing titled Examining the Supreme Court’s TC Heartland Decision. The day’s hearing focused on whether Congress needed a legislative solution in response to the U.S. Supreme Court’s recent decision in TC Heartland LLC v. Kraft Foods Group Brands LLC on the statute governing venue in patent infringement cases. Small players in the U.S. patent system and individual patent owners will likely be discouraged to note that much of the day’s debate focused on the patent troll narrative despite the lack of a substantive connection between that narrative and the TC Heartland case.

Rep. Darrell Issa (R-CA), chairman of the House IP subcommittee, started his remarks by asking to what degree the Supreme Court’s decision in TC Heartland fixed a decade-old problem. Noting that new lawsuits have hit consumer electronics giant Apple (NASDAQ:AAPL) in the Eastern District of Texas (E.D. Tex.), Issa went on to say that “patent trolls, in my opinion, are the scourge of the patent world. We have time and time again attempted to stop patent trolls while in fact being objected to by genuine innovators who feel that they will be trampled in our effort to stop the worst of the worst.” Issa also opined that the TC Heartland decision now likely makes businesses of all kinds avoid the jurisdiction of E.D. Tex. “Why set up shop in Eastern Texas if it creates venue for patent infringement,” he said.

As ranking member Rep. Jerrold Nadler (D-NY) would note, the day’s discussion was not to examine the court’s analysis but rather to determine the effects the decision will have in curbing abusive litigation, adding that E.D. Tex. has “developed a cottage industry of patent litigation.” “Patent trolls use the courts as a weapon to extract settlements from the innocent,” Nadler said. Comments made by Nadler and others reflected the notion that the impact of TC Heartland might only serve to take some cases out of E.D. Tex. and maintain a heavy concentration in the Northern District of California (N.D. Cal.) and the District of Delaware (D. Del.). “Will it be a panacea that puts patent trolls out of business, will it be business as usual, or something in between?” Nadler asked.

The House IP subcommittee was joined by both the chairman of the full judiciary committee, Rep. Bob Goodlatte (R-VA), and ranking Democrat member Rep. John Conyers (D-MI). Goodlatte decried patent trolling behaviors, including the use of what he called “loopholes in procedural rules [to bring] lawsuits in districts favorable to questionable claims,” noting that E.D. Tex. was one such court favorable to those claims. (It’s interesting to see how much conversation about E.D. Tex. has sprung from SCOTUS’ TC Heartland decision when even Justice Stephen Breyer asked why that district was even discussed as an issue during the oral hearing.) Conyers said that one of the most effective steps in preventing litigation abuses was to make sure that poor quality patents weren’t issued in the first place. “Patent examiners must have the resources to review and analyze the hundreds of thousands of complex, interrelated patent applications they receive every year,” Conyers said, adding that these resources would help protect the U.S. Patent and Trademark Office from the annual appropriations cycle. Conyers went on to say that he supported reasonable changes to the patent system but that he couldn’t support changes that would undermine the country’s patent system as a whole, encouraging a cautious approach to any legislative changes to the system.

Steven Anderson, VP and general counsel for Culver Franchising System, Inc., owner of the Culver’s restaurant brand, and a representative of Unified for Patent Reform and the National Restaurant Association, was the first panelist to offer testimony. He decried the fact that Culver’s, as a Wisconsin entity, could be brought to Eastern Texas in a patent infringement action in which the plaintiff could claim venue because it owned an office within the jurisdiction which appeared to never be in use. “It’s nothing but an address from which to sue other companies,” Anderson said. He urged Congress to move swiftly to correct an inequity in the TC Heartland decision; namely, that large retail and restaurant chains have brick-and-mortar locations across the country and the three franchised Culver’s in Eastern Texas, which generate one-third of 1 percent of the parent company’s revenues, could be used as a basis for venue in E.D. Tex. under the second part of the relevant 1400(b) statute, “where the defendant has committed acts of infringement and has a regular and established place of business.” Anderson praised the Supreme Court’s 2014 decision in Alice Corporation v. CLS Bank International as a tool which gives Culver’s a reasonable opportunity to find patents, such as one covering a nutritional calculator system, invalid prior to litigation. “Culver’s fully supports the ability for legitimate inventors to bring claims, but we also believe that appropriate reform can protect innovators while reducing the exploitation that stifles innovation,” Anderson said.

Colleen Chien, professor at Santa Clara University School of Law, argued that the TC Heartland decision “in effect restored the longstanding rule” regarding proper venue in patent infringement litigation which the U.S. Court of Appeals for the Federal Circuit (Fed. Cir.) overturned in its 1990 decision in VE Holding Corporation v. Johnson Gas Appliance Company. Chien cited statistics from a paper she co-wrote which found that TC Heartland would likely have an even effect on all plaintiffs in patent infringement cases. For example, 60 percent of “patent trolls” would have to move cases, as would 60 percent of plaintiffs who are operating companies. Just the fact that those lawsuits would have to move to a different venue meant that many of those cases wouldn’t survive, Chien noted, as many cases leaving E.D. Tex. would go to districts which were less friendly to the plaintiff. Despite this, she opined that one effect of the TC Heartland case would simply be that “patent trolls” may adapt their behavior to focus more on nationwide brick-and-mortar chains or customers, making a customer stay provision more important in her eyes.

Adam Mossoff, Professor at George Mason University Antonin Scalia School of Law

Speaking in his personal capacity as a law professor was Adam Mossoff, professor at George Mason University Antonin Scalia Law School. While Mossoff said it was undeniable that there are “a handful of bad actors in the patent system,” the important question to ask was whether there was a systemic problem which warranted the restricted the rights of all patent owners, including individual inventors, business startups, universities and others. “The decision in TC Heartland is very concerning given the erosion of patent rights” in the United States, noting the recent IP index released by the U.S. Chamber of Commerce which ranked the U.S. patent system as the 10th-strongest system in the world, tied with Hungary. “Adding TC Heartland to this mix further contributes to this deeply disturbing decline of what was once a gold standard patent system,” Mossoff said. “The advocates for more restrictive venue do not acknowledge the resulting costs to inventors, startups, small businesses, universities… But like the economic law of supply and demand, refusing to acknowledge the costs neither negates them nor makes them go away as a policy concern.” Mossoff testified that TC Heartland would not substantially answer the problem of high concentration of patent cases in district court, simply shifting into California and Delaware courts which are noted for being friendly to defendants. Mossoff also raised the example of Josh Malone, the inventor of Bunch O’ Balloons who asserted a patent that was declared invalid at PTAB, an actual inventor who would end up fitting the definition of “patent troll” supported by many at that day’s hearing. (We’ve reported on another instance where a legitimate inventor asserting patent rights against Apple was misrepresented as a patent troll.) “The guiding principle for patent legislation ought to be, ‘First, do no harm,’” Mossoff said.

Following Mossoff was John Thorne, partner at Kellogg Hansen Todd Figel & Frederick PLLC (the same firm where Supreme Court Justice Neil Gorsuch worked from 1995 to 2005), who testified that he’s represented both plaintiffs and defendants in patent infringement cases in Eastern Texas. He said that venue issues were not solved by the TC Heartland decision and that the fight over the proper definition will likely occur on two fronts: first, what constitutes a regular place of business; and second, when should a judge transfer in the interests of justice. Thorne questioned Mossoff’s written testimony, especially the assertion that the TC Heartland case was hijacked by interests looking to weaken patent rights. “Nothing in the opinion talks about that,” Thorne said. Of course, if nothing in the opinion mentions the words “Texas” or “Marshall,” the Texas city where E.D. Tex. holds court, as Thorne notes, and yet news report after news report after news report after news report ties Texas and/or “patent trolls” to the case, that would seem to support Mossoff’s point that, somewhere along the line, the media narrative on the case got hijacked. Thorne said he agreed with Mossoff that TC Heartland was one-sided in its result, though his perspective was that SCOTUS had unanimously decided to return to the original statute. Thorne argued that, as the courts decide the proper definition of venue following TC Heartland, due in large part to a lack of case law surrounding the second part of the statute, perhaps a few franchised Culver’s franchised locations within a district shouldn’t be considered a regular established place of business, or that delivering a product sold from one state to a consumer in a second state shouldn’t create venue in the state through which the product traveled. “If the courts are not careful, the incentives will be against growth,” Thorne said.

Rep. Bob Goodlatte (R-VA)

In questioning, Goodlatte asked Anderson how “patent trolling” behavior discourages business activities for restaurant chains like Culver’s. Anderson noted that it limits what the restaurant can do in marketing its locations and that it tends to take a step back from any marketing involving cell phones or social media. “We’re very wary of a small provider who can’t indemnify us,” he said.

Goodlatte then asked Mossoff if he thought it was acceptable that one judge would hear 25 percent of all patent cases, namelessly referencing Judge Rodney Gilstrap of the Eastern District of Texas. Mossoff answered that it was unclear why patent litigation was driven towards E.D. Tex., noting that while there have been allegations that the district is more favorable to plaintiffs in patent infringement cases, citing a PwC study which showed that the district has slightly lower affirmance rates than other districts. Citing the harms caused by unintended consequences from legislation, Mossoff clearly recommended to Goodlatte that the committee should take a step back to clearly assess the impact of not only this case but a decade of patent legislation. Goodlatte responded that “I’m not sure I buy your argument” on the public perception of E.D. Tex. being different than the reality based on data provided by PwC.

Conyers asked Mossoff what he meant when he said that the TC Heartland decision restricted rights for all patent owners. “Because it changes the ability to file for all patent owners,” Mossoff responded. Again, Mossoff brought the individual inventor angle to the hearing through the example of Malone, who now has to file suits in districts where allegedly infringing entities are located and not in Texas, where he actually lives. This imposes additional costs on top of the $12 million which Malone has already invested into his patent infringement cases. Chien later added that the decision essentially shifts the turf advantage on the venue rule from the plaintiff to the defendant.

Chien also spoke to the question as to why Eastern Texas was seen as favorable to plaintiffs in patent cases. She noted that, while the substantive law doesn’t differ in that district, the district has procedural differences which results in 101/Alice or stay motions from not being heard. Thorne noted that he had recently heard that patent plaintiffs were increasingly looking to the U.S. International Trade Commission (ITC) and German courts as friendly venues.

Rep. Nadler asked if it would be helpful if Congress made a rule that certain districts should hear all patent cases or if there was any value in concentrating patent cases in one district. Thorne responded that he was a fan of the Patent Pilot Program but in terms of district concentration, he noted that different judges will have different experiences and that it was the location of the evidence important to the case which should have a more important impact on venue.

An interesting viewpoint was expressed during questioning from Rep. Andy Biggs (R-AZ), who asked Chien what does the court’s decision mean for companies like Culver’s. “I personally don’t believe that they should be dealing with patent litigation assertions,” Chien said, adding that the company was a retail business and not a traditional developer. “They’re adopting technology but they’re not on the cutting edge of developing it,” she said. Of course, given the fact that a patent is supposed to give someone the right to exclude others from using the technology, and thus adopting a technology is as much infringement as the sale of that technology, Chien’s statement here evinces a lack of understanding of patent rights. Biggs then asked Mossoff what the “sweet spot” was between protecting patent holders and preventing frivolous lawsuits.  Again, he noted that the definition of “patent troll” employed by Chien, United for Patent Reform and others includes individuals, startups, universities and licensing operations. “Licensing has been a key component of what has been the success of the U.S. patent system in driving our innovation economy for well over 200 years,” he said. Mossoff noted that one important point was that there are no actual rigorous studies following standardized norms providing statistical analysis to conclude that there has been widespread abusive litigation. He also pointed out that the current “troll” definition would apply to famed American inventors like Thomas Alva Edison and Nikola Tesla. “I never thought I’d hear Edison called a troll before Congress,” Issa said, chuckling in response. He also got a good laugh to hear Mossoff later cite his own study of 1,700 patent applications which received patents in Europe and China but not in the U.S. “I’ll now note that I’ve now heard that China is the country we’re gonna base the high mark of [laughter] of patent tolerance on,” Issa said. (This exchange comes at about 1:21:40 of the archived webcast of the hearing.)

Near the end of the hearing, Issa displayed the first patent issued by the U.S. Patent Office, a method for making potash which was signed by George Washington and Thomas Jefferson. “Anytime someone wants to talk about 101 and Alice, it’s a 227-year-old standing of what Jefferson believed it should be,” Issa said. Issa asked if the U.S. system of innovation has worked well under that standard for 227 years, a statement to which Chien and Thorne agreed. Mossoff pointed out that the patent for a method for making potash was likely unpatentable subject matter under recent Supreme Court decisions. “I think even Patent No. 5, the improvement of rye whiskey distillation, probably would still be patentable,” Issa responded.

The Author

Steve Brachmann

Steve Brachmann is a writer located in Buffalo, New York. He has worked professionally as a freelancer for more than a decade. He has become a regular contributor to IPWatchdog.com, writing about technology, innovation and is the primary author of the Companies We Follow series. His work has been published by The Buffalo News, The Hamburg Sun, USAToday.com, Chron.com, Motley Fool and OpenLettersMonthly.com. Steve also provides website copy and documents for various business clients.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 26 Comments comments.

  1. Anon June 18, 2017 8:20 am

    Thanks for the excellent recap.

    Sadly, the number one thought that reverberates in my mind is that Issa simply needs to go.

    He seems intent on “not getting it” with such comments as “patent trolls, in my opinion, are the scourge of the patent world. We have time and time again attempted to stop patent trolls while in fact being objected to by genuine innovators who feel that they will be trampled in our effort to stop the worst of the worst.

    Drunk from the Efficient Infringer “boogyman” of “Tr011s,” Issa should be sat down with the likes of Ron Katznelson and learn just where the propaganda of “patent Tr011” came from, just whom benefits, and just why the system in total is being trampled to stop this mythical scourge (as opposed to simply applying other laws already in place to stop bad actors).

  2. Steve Brachmann June 18, 2017 12:49 pm

    @Anon – I didn’t have this thought during the write-up, but maybe I’ll leave it here and see if it starts a discussion. Issa says that “patent trolls” are the scourge of the patent system. Mossoff points out that the definition of “patent trolls” includes individual inventors, small businesses and universities. By the transitive property, doesn’t this then mean that Issa believes that individual inventors, small businesses and universities are the scourge of the patent system? Some food for thought.

  3. Bemused June 18, 2017 5:50 pm

    Issa believes everyone, other than his paymasters at Google, of course, are patent trolls…

  4. angry dude June 18, 2017 10:10 pm

    “doesn’t this then mean that Issa believes that individual inventors, small businesses and universities are the scourge of the patent system?”

    yes, he does!!!
    any (tech) patent of any value not immediately assigned to one of his (SV) corporate campaign donors is the scourge on the patent system
    Absolutely yes
    And Issa himself is the scourge on the US Congress
    I WANT HIM OUT

  5. Silicon Valley Inventor June 19, 2017 10:45 am

    A most excellent write-up. The Issa comments at the end show the enormity of his ignorance and uncaring — where, presented with the idea that America’s greatest inventors would now be considered patent trolls and the idea that China now has greater patent protections, he unravels in sarcasm.

  6. Poesito June 19, 2017 11:39 am

    It might be valuable to know how many patents might have issued to Mr. Issa, his former company, Directed Electronics, or it’s employees during his tenure as head of the firm. The sale of DEI has purportedly made Mr. Issa one of the wealthiest members of Congress if not, at times, *the* wealthiest member.

  7. Poesito June 19, 2017 11:45 am

    Forgot to mention that I have heard Mr. Issa complain about how the sale of cheap foreign-made “knockoffs” hurt his company.

  8. Silicon Valley Inventor June 19, 2017 12:14 pm

    @Poesito, that info is not hard to find. Issa is named as inventor on four patents issued (not including a separate foreign patent), assigned to Directed Electronics, which has a total of 43 patents (not sure how many duplicates or foreign assets this includes).

  9. Ben June 19, 2017 2:31 pm

    “Mossoff points out that the definition of “patent trolls” includes individual inventors, small businesses and universities. By the transitive property, doesn’t this then mean that Issa believes that individual inventors, small businesses and universities are the scourge of the patent system?”

    Chihuahuas can fit in a purse. The set of Chihuahuas includes members of the species Canis familiaris. Therefore, by the ‘Brachmann transitive property’, all members of Canis familiaris can fit in a purse.

  10. Tiburon June 19, 2017 4:39 pm

    It’s unfathomable that an American innovator such as Google is the target of so much vitriol. Take a closer look at their numerous innovations and technological advancements in their relatively short lifetime. These advancements have advanced America’s interests on the world stage. Yet innovative American corporations like Google face a huge number of parasites on a daily basis – by parasites I am referring to the lawyers who contribute nothing to society such as technological advancements. Yet on this site we see no reference to these parasites and only attacks against the innovator. Telling.

  11. Silicon Valley Inventor June 19, 2017 5:11 pm

    @Tiburon, I agree that at one time Google was innovative–when they were a small startup developing the best search engine and monetizing it with market ad revenue. Note that this is still their overwhelming (arguably sole) source of revenue and success. Since then, they have been anything but innovative. Their approach to product dev is to throw all ideas on a white board and see what sticks; they have no real sense of what the consumer wants and feel they know better. Their horrible track record on protecting consumer privacy is one manifestation. As Google grows in power, the individual loses their rights.

    Google’s attempts to transition into hardware or other areas of innovation have been mostly disastrous and involve them buying up or stealing from more innovative startups (I can cite numerous examples and go in depth if you really want to have this discussion). For their Calico pharma venture, they onboarded some of the stodgiest figures in that industry. By definition, large established firms and figureheads are not innovative.

    Aside from using its ad revenues to swallow up startups, Google (Alphabet) has been heavily lobbying Congress to prevent startups from disrupting them because if one figured out how to supplant Google’s search engine with a more effective way of indexing the internet, it would be lights out at Google. The company has the manpower, motive and money to fight against innovation, and we are seeing this manifest in the IP space. We know that the cozier large business gets to government, the greater the likelihood of corruption–not innovation. And the Obama’s administration’s revolving door relationship with Google is prime evidence.

    In terms of its global track record, Google is said to be facing a record fine by the EU at the end of August for anti-trust rigging of search results. But if your point is that it hires fewer Americans and more non-Americans or anti-Americans, you may be on to something.

  12. Eric Berend June 19, 2017 5:43 pm

    “…Culver’s fully supports the ability for legitimate inventors to bring claims…”, “…appropriate reform can protect innovators…”

    What a pile of boilerplate, lawyer-crafted BULL$H*T.

  13. Eric Berend June 19, 2017 5:45 pm

    I see that Culver’s has “…fully supprt[ed]” legitimate inventors…NOT.

    A worthless disclaimer that is a fatuous lie, serves to amply illustrate the illegtimacy of this whole process. What a FARCE. Were ANY inventors at the table?

  14. Tiburon June 19, 2017 5:55 pm

    Silicon Valley Inventor:

    You are contradicting yourself in numerous ways. On the one hand you say they aren’t innovating yet acknowledge that they have grown (a sign of success).

    Your comment on “protecting consumer privacy is one manifestation”, while perhaps immoral or undesirable by society, it is a sign of change – which itself may be considered advancing.

    Your comment on “Google’s attempts to transition into hardware or other areas of innovation have been mostly disastrous” is very specifically a sign of innovation – to try things. Failure is not a sign not innovating – but rather a sign of innovating.

    Regarding their purchase of startups “involve them buying up or stealing from more innovative startups” – how is buying a startup harmful?

  15. Anon June 19, 2017 5:59 pm

    Tiburon,

    You are so far off the mark, both in your original response and in your reply at 14, I scarcely know where to begin.

  16. Silicon Valley Inventor June 19, 2017 8:15 pm

    Tiburon @14, thanks for the opportunity to clarify my points and show that that are fully supporting the fact that Google cannot be considered an innovator anymore. Their ad revenue has grown. That is a sign of market success (or domination, anti-trust violations or monopoly, according to the EU). It is not a sign of innovation. When it first disrupted the way people search for news, literature, products, etc., that was innovative.

    The invasion of consumer privacy is not innovative; one reason is that everyone is doing it, including Facebook and Apple. It is a sign of change insofar as the regulatory climate permits that change, and consumers continue to feel ok about exchanging privacy for convenience. This is a regulatory issue, not an advance (certainly not an innovative advance).

    You make a good point about failure being a sign of innovation. However, that failure is usually made by the startup prior to being acquired by Google. The technology has to show signs of success before Google onboards it; whereupon it is often doomed to Google’s backward approach to product development.

    And let me qualify my statement about “buying up or stealing from more innovative startups” by saying that the only way Google buys a technology it doesn’t have is if it’s cheaper than infringing/stealing. You are correct that buying a startup is a good outcome, but that only occurs if Google can’t steal its technology without paying a licensing fee. Therein lies the reason Google tries to weaken patent protections, and the reason so many who care about those protections despise Google and its army of IP attorneys and lobbyists.

  17. angry dude June 20, 2017 9:26 am

    @Tiburon

    what ???

    google acquired all those startups

    very little came out of google itself

    just like facebook acquired oculus etc

    this is the only good thing they do – buy startups

    but not all startups are that lucky

  18. Night Writer June 20, 2017 10:49 am

    Rep. Bob Goodlatte (R-VA) AKA “Mr. Google Bucks.”

    Goodlatte and the others looking to “reform” the patent system get most of the money from Google.

  19. Night Writer June 20, 2017 10:52 am

    @14: Tiburon You are contradicting yourself in numerous ways. On the one hand you say they aren’t innovating yet acknowledge that they have grown (a sign of success).

    Another vermin. Growth is not necessarily a sign of innovation. Google’s revenue is now about 90 from the ads generated by searches. So, in terms of revenue they are getting it from where they started. The business community are the ones that most critical of Google’s inability to innovate.

    Google is a monopoly with their advantage being the massive user base and infrastructure. Google admits their biggest fear is a start-up coming and taking their search service (90 percent of revenue) overnight. And what better way to prevent that then remove patents.

  20. Night Writer June 20, 2017 10:55 am

    @14: Tiburon Yet on this site we see no reference to these parasites and only attacks against the innovator. Telling.

    1) Google is not innovative. They either fail or buy something that is successful (or copy it). They are remarkably unsuccessful for a company with so much money and talent.

    2) We talk about Google in this way because that is their focus on patent law. All the settlements against all the companies do not match one year of profit for Google. Google goes after patents because their business model is monopoly and take everything they can from anyone they can get it from.

    You have to wonder if their attitudes at the top haven’t prevented the innovation at the bottom. Something is very, very wrong with the innovation engine at Google and maybe it is the patents.

  21. staff June 20, 2017 12:00 pm

    from the Mossoff testimony:

    ‘Admittedly, there are some bad actors in the patent system, just as there are in all areas of the legal system. But systemic changes that weaken patent rights for
    millions of patent owners nationwide, most of whom are innocent producers and
    commercializers of innovation, has pernicious effects on the innovation economy.’

    As to inventors and other small entity patent owners, we are aware of no ‘bad actors’. If any do exist they are so infrequent as to be of no consequence. The reasons are many, such as it costs millions to enforce a patent and small entities just don’t have that kind of money to risk.

    As to infringer bad actors, they are legion. The reasons are patents for us are now far to hard, expensive and slow for us to get and enforce. It is now child’s play for our large competitors to rob and crush us. And they are. For us the patent system is all but dead. That’s why small entity shares of patents and applications are now only about 1/10th of what they have been historically. The patent system is now a sport of kings, if not thieves.

    Yet all these changes to patent law trying to address these fictional or insignificant issues asserted by large multinational infringers have crushed inventors. Don’t be duped by the Chinese style propaganda of thieves. All their proposed changes do is legalize theft, allowing them to rob and crush their small competitors. These thieves have been playing some in Congress and the courts like a cheap fiddle. There is where the House cleaning needs to begin.

    For our position and the changes we advocate (the rest of the truth) to truly reform the patent system, or to join our effort, please visit us at https://aminventorsforjustice.wordpress.com
    or, contact us at aifj@mail.com

  22. Silicon Valley Inventor June 20, 2017 12:14 pm

    @20 Night Writer, “Something is very, very wrong with the innovation engine at Google and maybe it is the patents.”

    I think their patents are very good, and so is their underlying technology and (as you pointed out) their money and talent. All stellar. But from the top down they lack the ability to make good products because they refuse to approach technology from the consumer/user point of view. It’s just hubris. They think they know better than the user what the user needs. The entire organization is beholden to R&D. To arrive at a product, these geeks sit around a very fancy whiteboard and see what features they can champion. This can sometimes work with software (particularly software that automatically pushes and pulls data to and from the user without much user input or awareness), but it can never create great hardware.

    Contrast this with a company like Apple (also not innovative anymore, but at least they know how to make good products). The product development is headed by the marketing organization. Product mgrs define up front what space on SWOT maps the product needs to occupy for maximum value to the user. They then define what features can be combined to achieve that value. Only then do they work with R&D on the technologies to support those features. Like all landmark technology, it’s driven by the needs of the user–a concept Google scoffs at.

  23. Night Writer June 20, 2017 1:56 pm

    @22 SVI: I agree part of their problem is product management. I was a product manager in another life and an software engineer before that. I couldn’t believe some of the Google software that was developed, e.g., their document interface is horrible. It is as if they don’t even have walk-through scenarios to test the software.

    Anyway, I think you are right that that is part of the problem. Still, let’s not forget Karma. Google is about taking what others do and not paying for it. Do they do that internally? That is the opposite of a good patent system set-up in-house.

  24. Commentariat June 20, 2017 1:59 pm

    If we REALLY want to get rid of trolls, we have to go to the heart of the matter. We have to find away to make it impossible for trolls to operate, while still allowing for operating companies to have strong (and fungible/alienable) patent rights.

    So we have to do something like: make a working requirement; make damages $0/disallow enforcement unless the patent owner is practicing the invention; or make damages $0/disallow enforcement unless patent owner is a bona fide competitor vs the accused infringer in the area to which the patent applies.

    TC Heartland, Alice, etc make things more difficult for trolls–but also weaken patents for operating companies. And, unless we come up with a fundamental and direct solution, the trolls are smart and they will always just adapt / find away to make $$$.

  25. Night Writer June 20, 2017 1:59 pm

    (And, I have had lots of fights with engineers. I’ll never forget one arguing that numbers instead of words for commands was better. And, he insisted on keeping the number system as a back-up.) I remember another one that simply told us that something couldn’t be built at a particular size (consumer electronics.) We went out and bought a competitor’s product and he said, well I’ll be.

  26. Anon June 20, 2017 9:09 pm

    Commentariat,

    Back away from the “Tr011s” kool aid pitcher, and start critically thinking about how the very foundations of the US patent system were built to ensure that the patent property was fully alienable and that yes – this leads to the natural occurance of the so-called “Tr011s,” which are really anti-mega corp MAD strategy defeatists (and that’s a good thing).

    Working requirements are one of the worst suggestions out there.