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

from the bad-for-innovation dept

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.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Anonymous Coward, Oct 10th, 2012 @ 12:19pm

    Missed one option

    11. Do not have any contact with the USA.

     

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    Anonymous Coward, Oct 10th, 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.

     

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      identicon
      Anonymous Coward, Oct 10th, 2012 @ 12:52pm

      Re: Wrong, wrong, wrong

      That's ignoring a pretty big market, wouldn't you say?

       

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      •  
        identicon
        Anonymous Coward, Oct 10th, 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.

         

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          Anonymous Coward, Oct 10th, 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.

           

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            Anonymous Coward, Oct 10th, 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.

             

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              Anonymous Coward, Oct 12th, 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.

               

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        That One Guy (profile), Oct 10th, 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.

         

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      gorehound (profile), Oct 10th, 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.

       

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        Anonymous Coward, Oct 10th, 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.

         

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    DMNTD, Oct 10th, 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.

     

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      Anonymous Coward, Oct 10th, 2012 @ 12:53pm

      Re:

      If you rephrase that in English it will be easier to understand.

       

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        Anonymous Coward, Oct 10th, 2012 @ 1:43pm

        Re: Re:

        He's just speaking in his own English dialect that no one else can really understand.

         

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        DMNTD, Oct 10th, 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?

         

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          Anonymous Coward, Oct 10th, 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."?

           

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            DMNTD, Oct 10th, 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.

             

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    Anonymous Coward, Oct 10th, 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.

     

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      Anonymous Coward, Oct 10th, 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.

       

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        Anonymous Coward, Oct 10th, 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.

         

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      Prisoner 201, Oct 10th, 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.

       

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  •  
    identicon
    Anonymous Coward, Oct 10th, 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.

     

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    Anonymous Coward, Oct 10th, 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.

     

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      Anonymous Coward, Oct 10th, 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.

       

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        Anonymous Coward, Oct 11th, 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.

         

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          Anonymous Coward, Oct 12th, 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.

           

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  •  
    identicon
    Anonymous Coward, Oct 10th, 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.

     

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    The Amazing Sammy (profile), Oct 10th, 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.

     

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      identicon
      Anonymous Coward, Oct 10th, 2012 @ 2:57pm

      Re: Or...

      How?

      Name it "Mafia-Connected Murderers LLC"?

       

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        That One Guy (profile), Oct 10th, 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.

         

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          John Fenderson (profile), Oct 10th, 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.

           

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            That One Guy (profile), Oct 10th, 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.

             

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    cm, Oct 10th, 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.

     

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    relghuar, Oct 11th, 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!

     

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    vic Kley, Oct 11th, 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.

     

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    identicon
    Don Sauer, Oct 11th, 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?

     

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      Vic Kley, Oct 12th, 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.

       

      reply to this | link to this | view in chronology ]


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