Qualcomm Says It's Fighting For The Little Guy, While Really Blocking Patent Reform That Would Help The Little Guy

from the a bunch of crap dept

Last week at CES, I had the honor of “moderating” a panel on what was next for patent reform, that kicked off with a short speech from US Patent and Trademark Office Director Michelle Lee, who notes that she’s the first ever director of the Patent Office to attend CES (which is crazy). Before Director Lee was appointed to the full job, back when she was just the interim director, I noted that she was the first head of the patent office I’d ever seen who seemed to have a more accurately nuanced view of patents, and recognized how in some cases they could be harmful rather than helpful. She’s continued to make that clear since taking over the top job full time, and you can see that in her speech. She, unlike so many in government jobs related to copyright or patents, actually pointed out the full Constitutional clause, and how patents need to be for the promotion of progress, and not just “to help inventors get paid.”

But Lee is a good politician and didn’t say anything all that controversial on either side of the debate. The real fireworks came afterwards on the panel discussion itself, where my “moderation” consisted of asking a single question (other than asking the panelists to introduce themselves), after which the panel turned into a somewhat heated argument over the patent system in which I never had a chance to speak until the end when I had to cut things off. The question I asked: what is the one thing that you think most needs to be fixed in the patent system?

Three out of the five panelists — Kate Doerksen, Lee Cheng and Brian Mennell — represented victims of patent trolls. Kate and Brian both have experienced the perils of being a small startup and getting hit with patent lawsuits that have the potential to destroy their businesses. You can read Kate’s story here, in which she’s being sued by a large company trying to keep her startup from competing altogether. It’s even reached the point where Kate agreed to something of a deal with the devil: Erich Spangenberg. As we’ve discussed, Spangenberg, who was one of the most aggressive patent trolls, recently shifted his business into being a sort of reverse patent troll, where he makes deals with small companies like Kate’s, taking an ownership stake in the company in exchange for “helping” the company deal with patent trolls, usually by seeking post-grant review to invalidate the patents being asserted against the startups.

Mennell has the classic patent troll story of running a startup and getting hit by a patent troll that undermines the ability of the company to stay in business (and also notes that the Supreme Court’s Alice decision made him lose a business method patent, though he doesn’t seem to see that as problematic).

Lee Cheng is Newegg’s General Counsel, and someone we’ve covered for years as an aggressive fighter against patent trolls.

And yet… down at the end of the panel row was Laurie Self, a top Qualcomm lawyer. Qualcomm has been a longterm fighter against patent reform — which isn’t all that surprising, as a big part of Qualcomm’s business has been licensing its patents. Many people have argued that Qualcomm, in particular, has been the driving force behind blocking patent reform. It’s funded think tanks and front groups pretending to “represent inventors.” If you see a big patent conference where all of the speakers are basically in favor of expanding the patent system and against reform, there’s a better than even chance that the top sponsor of the event is Qualcomm. And so it was little surprise that she presented herself as arguing for “the little guy” on the panel, despite the fact that Qualcomm is a $70 billion company

Meanwhile, the concerns of the three actual representatives of small companies on the panel — who are actually dealing with patent trolling on a regular basis — were completely dismissed by Self. When Newegg’s Cheng challenged Self to come up with a single specific example of how to stop abusive patent trolling, she came up with nothing, except ideas to expand the powers of patent holders to go after companies. Every time people brought up abuse, Self more or less threw up her hands and said “how can you possibly tell what’s abuse and what’s not” and so, the implication was: why even try to stop abusive trolling?

The other representative on the panel was Rep. Darrell Issa, who among other things is the chair of the intellectual property subcommittee of the House Judiciary Committee, and thus a key person in actually moving forward with patent reform. And, if you watch the panel, you can see his visible frustration with Qualcomm and Self basically being a key player in holding up any progress on that front. He also revealed that, like the other three non-Qualcomm panelists, he too was a victim of a patent troll, back before he was in Congress. It’s well known that Issa ran a successful car alarm business before going into Congress and holds a number of patents himself, but less known is the fact that his company was apparently sued by someone holding a ridiculous and vague expired patent.

Issa pointed out, quite clearly, that Self was being very misleading in claiming that there was no way to determine what was abusive. He explained a variety of abusive practices, and noted how those specific practices could and should be targeted. Cheng similarly highlighted just how broken things are, and the total failure of Qualcomm to point out any way to deal with the trolls, instead focusing on ways to undermine earlier patent reform efforts. Issa also mocked Self’s claim about Qualcomm not suing others for patent reform “in several years” noting that the company doesn’t need to, because it just threatens companies with its giant patent portfolio and “like Clint Eastwood with 100 machine guns” tells companies that it’ll find something that they must violate:


The reason you haven’t sued anyone is you have a huge bundle of patents, and you assert them all at once. And the question is, like Clint Eastwood, with a hundred machine guns, ‘you might beat one bullet, but are you going to beat them all?’ That versus individual pleading of specific claims, is one of the innovative parts of this bill. We want companies to have to say, specifically, what did you infringe, give it with some specificity, ‘we’ve got enough patents, that you’re going to infringe something, and if you go down this road of not taking a license, we’re going to get you.’ That kind of technological omnibus is pretty good when you’ve got A&T and Qualcomm and Apple and Broadcomm all trading patents. But for the startup, that cannot necessarily afford to buy a portfolio even if they believe they don’t fall under it, it can be devastating.

The whole panel is an interesting, if frustrating discussion — and shows a big part of why patent reform still hasn’t gone anywhere. Giant patent holding companies like Qualcomm are pretending that they “represent the little guy” and are doing everything possible to muddy the waters and block real reform that targets abuse.

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Companies: ditto, newegg, qualcomm

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Comments on “Qualcomm Says It's Fighting For The Little Guy, While Really Blocking Patent Reform That Would Help The Little Guy”

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55 Comments
Anonymoussays:

Re: Re:

Could you cite one?

Of course, and I’m happy to discuss any of it. She argues for the harmonization of claim construction. I think she’s right. Why should the same claims be interpreted differently in a PTAB proceeding vs. in a district court? If you think they should, then can you explain why?

As a side note, one theme I’ve seen many times, including with your panel, is this: The people saying the patent system is broken almost always point to a small subset of the patent system, business methods and software patents. Those who think it functions well, but could be improved, focus on the system as a whole, which is a lot more than business methods and software patents. The concerns expressed by Laurie, and which I hold myself, are that the “fixes” argued for by reformists would apply across the board. That is, they aren’t sufficiently targeted. Laurie is not anti-reform, and it’s childish to say she’s anti-small inventor. Her concern is that these broad reforms will hurt all inventors, small and large.

Mike Masnicksays:

Re: Re: Re:

First off, would you like to disclose whether or not you work for an organization funded by Qualcomm?

She argues for the harmonization of claim construction. I think she’s right. Why should the same claims be interpreted differently in a PTAB proceeding vs. in a district court? If you think they should, then can you explain why?

I don’t have any problem with harmonizing claim construction. But, let’s me serious, that’s a pretty small issue overall and NOT what’s holding up reform.

The issue I was raising is that Qualcomm is clearly throwing everything and the kitchen sink out in order to try to sink the reform effort. Self’s biggest load of bullshit was when she basically threw up her arms and said “sure there’s some abuse, but how can you tell” or when she tried to focus on how some people define a patent troll.

The bill is targeted at abusive practices, which you can distinguish, contrary to her claims, and has nothing to do with how you define a troll.

As a side note, one theme I’ve seen many times, including with your panel, is this: The people saying the patent system is broken almost always point to a small subset of the patent system, business methods and software patents. Those who think it functions well, but could be improved, focus on the system as a whole, which is a lot more than business methods and software patents.

1. I’ve pointed out regularly that I disagree with those who are looking to single out software or business method patents. Especially because I think hardware trolling is on the rise. The changes I’ve suggested for the patent system should apply across the board.

2. But calling that “a small subset of the patent system” suggests a near total lack of awareness of reality. Software related patents make up approximately half of all patent grants and the vast, vast majority of litigated/threatened patents these days. To argue it’s a “small subset” is to suggest you don’t know what’s going on.

Laurie is not anti-reform, and it’s childish to say she’s anti-small inventor.

That’s not even in the realm of reality. If you’ve watched anything having to do with the patent fight (and I know, you’re new to the area…), you’d know that Qualcomm has basically done everything possible to block any patent reform. I didn’t say she’s anti-“small inventor” because the whole focus on “small inventors” is a cute little story that has nothing to do with patent reform. She’s doing everything possible to kill patent reform that would help STARTUPS.

Anonymoussays:

Re: Re: Re: Re:

The issue I was raising is that Qualcomm is clearly throwing everything and the kitchen sink out in order to try to sink the reform effort. Self’s biggest load of bullshit was when she basically threw up her arms and said “sure there’s some abuse, but how can you tell” or when she tried to focus on how some people define a patent troll.

That’s simply not true. Qualcomm opposes overly-broad reforms (like the Innovation Act), but it supports targeted reforms (like the TROL Act). It’s not that she or Qualcomm are anti-reform, they’re just against reform that goes too far, hurting the rights of all patent owners. She acknowledges that there are some bad actors. She also acknowledges that the majority of patent owners aren’t trolls, and anything to curb abuse by trolls shouldn’t hurt the good-acting patent owners. Her views are way more nuanced than you report them to be.

I didn’t say she’s anti-“small inventor” because the whole focus on “small inventors” is a cute little story that has nothing to do with patent reform. She’s doing everything possible to kill patent reform that would help STARTUPS.

Small inventors have everything to do with patent reform, and it’s because the broad reforms you and the rest of the anti-patent crowd would prefer will hurt the patent rights of small inventors. It would weaken those rights so corporations larger than Qualcomm can minimize their input costs to maximize their bottom lines. If you want to see the sorts of reforms Qualcomm supports, see this: http://innovationalliance.net/about-us/our-principles/ They’re not anti-startup. They’re not anti-small inventor. The corporations you support are. She and Qualcomm are against reforms that throw out the baby with the bathwater. You’re not.

Ninjasays:

Re: Re: Re: Re: Re:

U mad bro? I’m not going to single Qualcomm here because many other huge players do the exact same but most of the attacks against any meaningful reform come from these big players. And it is interesting that 1- you ignore the startup guys in the same panel that are proving you wrong (not even mentioning Mike’s longstanding career in the technology field) and 2- their stated goal may not be anti-startups or whatever but actions speak louder than words and so far the big players are doing the exact opposite.

Mike Masnicksays:

Re: Re: Re: Re: Re: Re:

BAWK.

Every. Single. Time.

Ah, right. After a busy day I came by to see if you wrote something worth responding too, and now I see you’ve (thankfully) reminded me that you’re not worth the time to respond to.

And to think, I was actually trying to engage with you again. When will I learn? You’re nothing but a troll.

Anonymoussays:

Re: Re: Re: Re: Re: Re: Re:

Ah, right. After a busy day I came by to see if you wrote something worth responding too, and now I see you’ve (thankfully) reminded me that you’re not worth the time to respond to.

And to think, I was actually trying to engage with you again. When will I learn? You’re nothing but a troll.

Sorry you feel the need to make an excuse rather than engage on the merits. I’m happy to discuss these issues whenever you want.

Davidsays:

Why have you all missed the most important part?

Seriously folks, Laurie Self as a lawyer. Regardless of working for Qualcomm but just her name is worthy of some really awful puns.

The business standard ‘Note to Self’ leads to many complications. I had to read one sentence twice “were completely dismissed by Self”. Of course I immediately went down the rabbit hole.

But nobody else was there.

Whateversays:

A couple of things

First off, I gotta laugh when a guy funding a think tank (aka, mouthpiece) like Copia would even mention Qualcomm putting money up for think tanks. Heal thyself!

Second, Qualcomm has been a huge player in getting us to where we are in the tech world. They have invested heavily and moved technology forward. I would suspect that more than half the people reading this have Qualcomm based electronics working for them right now. They are big, they have been successful, and they have defined the market. Why should they not have patents on the technologies they have developed? They are clearly not a “non practicing entity”, they are huge and active and constantly investing. Ragging on them for doing a better job than the next guy is pretty lame.

Perhaps you can open a think tank about success too… no experience required!

techflawssays:

Re: A couple of things

And there you are again, rooting for the assholes. No surprise there.

Hey moron, for all those great technolgical advances bringing mankind forward that of course just couldn’t have happenend without Qualcommm, they got properly compensated, being a 70 billion company, no?

Since you were so busy slurring Mike, you of course completely forgot to explain why in the hell they should have the power to impede anyone else from moving manking forward using their own technology.

Whateversays:

Re: Re: A couple of things

“And there you are again, rooting for the assholes. No surprise there.”

Stop being a troll.

That said, let’s make it clear: I support them because I like the end product. Qualcomm in particular has gone over and above and beyond to bring us amazing products and to be part of amazing advancements in a very short period of time. I don’t have a problem with them because they are a practicing entity who are bringing us the things we need or desire.

The advances MAY have happened with Qualcomm, and without the major investment one day. But for now, enjoy your Iphone and all the stuff around you and remember, it happened for a reason. The proof is in the results, and the results are here.

“why in the hell they should have the power to impede anyone else from moving manking forward using their own technology.”

Quite simply, because they got there first, and others are attempting to build on their shoulders and claim to be giants. Patents are for a relatively short amount of time, and I personally am willing to trade certain possible innovation after the patent because it’s quite possible the underlying technology wouldn’t get developed or not as quickly without a strong business environment and a business case for making the investment.

You cannot stand on the top of a tower if nobody built the tower. I like the towers, I don’t worry about the guys trying to stick small flags on the top of the tower claiming to be tall.

Mason Wheelersays:

Re: Re: Re: A couple of things

Quite simply, because they got there first, and others are attempting to build on their shoulders and claim to be giants.

You cannot stand on the top of a tower if nobody built the tower.

You say that as if Qualcomm didn’t get there by standing on a whole tower of giants of its own…

Mike Masnicksays:

Re: A couple of things

Second, Qualcomm has been a huge player in getting us to where we are in the tech world. They have invested heavily and moved technology forward. I would suspect that more than half the people reading this have Qualcomm based electronics working for them right now. They are big, they have been successful, and they have defined the market. Why should they not have patents on the technologies they have developed? They are clearly not a “non practicing entity”, they are huge and active and constantly investing. Ragging on them for doing a better job than the next guy is pretty lame.

No one said they shouldn’t have patents. You’re just making that up.

The problem is not how well Qualcomm has done in creating products. The problem is that they’re actively blocking patent reform against abusive practices.

naschsays:

Re: Re: A couple of things

Yeah, this particular comment is pretty much completely divorced from reality.

Things Whatever claims Mike said that he didn’t say:

– Funding think tanks is bad
– Qualcomm didn’t invent anything
– Qualcomm shouldn’t have patents
– Qualcomm shouldn’t be rewarded for their successes
– Qualcomm is a patent troll

Accurate claims that Whatever made:

um… I can’t find anything.

That One Guysays:

Re:

Yeah, you really can’t defend the idea that a company should be able to send out a letter threatening someone for patent violation without stating what the patent violation is.

The only possible explanation I can think of for that is so that the target isn’t able to fight back by pointing out that no, as a matter of fact, they aren’t violating the patent in question. If the target has no way of knowing however what the patent in question says, then they have to take it to court to find out, which is an expensive proposition, win or lose, and that’s something the trolls bank on, that it’s more expensive to fight, even if you win, then it is to simply pay their demands.

OGquakersays:

Re: Re: Re: Some house, somewhere

Happens all the time where i live.
I’ve been handcuffed and locked in the back of a patrol car a dozen times, ‘We got a report of…’ ‘We see you have a warrant…’ ‘Look like the…’ Nothing.
One day, after two quick explosions, 14 LAPD cars rushed buy the house, Air Unit circled a few blocks away. After 5 minutes, they left; the Space Shuttle was landing at Edwards!

naschsays:

Re: Re:

Yeah, you really can’t defend the idea that a company should be able to send out a letter threatening someone for patent violation without stating what the patent violation is.

I would think such a law would have to be very carefully crafted to pass first amendment scrutiny though. Unless there are restrictions on legal threats that I’m not aware of.

That One Guysays:

Re: Re: Re:

If you’re going to threaten someone for violating a law, in this case patent law, makes perfect sense to me to require that the threat be accompanied by details of how they’re in violation, given that allows people to determine whether or not they actually feel they’re guilty or innocent, and the odds of being able to win in court.

naschsays:

Re: Re: Re: Re:

If you’re going to threaten someone for violating a law, in this case patent law, makes perfect sense to me to require that the threat be accompanied by details of how they’re in violation

I agree, it makes perfect sense, but that doesn’t make it constitutional. I’m hoping someone who knows more about law will jump in.

Anonymoussays:

Many people have argued that Qualcomm, in particular, has been the driving force behind blocking patent reform. It’s funded think tanks and front groups pretending to “represent inventors.” . . . And so it was little surprise that she presented herself as arguing for “the little guy” on the panel, despite the fact that Qualcomm is a $70 billion company

This is pretty silly, Mike. The reason Qualcomm opposes some of the proposed reforms is because they will weaken the patent rights of all inventors across the board. Many of these reforms are backed by huge, multi-national corporations that are bigger than Qualcomm, and the reason they want to weaken patent rights is because it benefits their bottom lines. Huge corporations are trying to weaken the patent rights of small inventors, and Qualcomm is standing up for them and every other patent owner. You really should spend more time trying to understand the other side before attacking it.

naschsays:

Re:

What I want to know is, how does that not count as prima facie evidence of extortion, which is a federal crime?

It’s not blackmail:

https://www.law.cornell.edu/uscode/text/18/873

I don’t think it would fit under the interstate communication or mailing threats sections of extortion law:

https://www.law.cornell.edu/uscode/text/18/875
https://www.law.cornell.edu/uscode/text/18/876

So I would say, though I am not a lawyer, it’s not extortion because the way the extortion statute is written it doesn’t cover this activity.

Mason Wheelersays:

Re: Re:

875(d) Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.

Seems like it fits to me…

Ninjasays:

The question I asked: what is the one thing that you think most needs to be fixed in the patent system?

Much like you can’t really fix someone with a bad genetic disease you can’t fix a system that’s flawed at it’s foundations. The bright news is that while you and I would make serious efforts to make the genetic diseased person’s life better by mitigating the symptoms with surgery or medication you can kill the patent system and start over.

The way I see it now, trying to fix it is like adding another dead appendage to Frankenstein. The piece may be awesome but the body is already dead.

OGquakersays:

Re: Uh?

As a troll, i was unwilling to type up a non-sequitur until i read the lost soul above.

I spent 6 hours at the PTO 2013 ‘America Invents’ webcast & traveling circus at the LA central library.
The room was full of lawyers, i was the only inventor IN THE ROOM.
You can now be issued YOUR patent if one of three conditions are met:
The ‘inventor’ refused to sign over his invention to you, your call.
The ‘inventor’ can not be found, your call.
The ‘inventor’ may be dead, your call.

Thanks PTO, now I’m worth more dead.

My Pop patented a dozen things in the 1950 and 60’s when the first digit was a 2.
TRW told him, in reply to specific notice of potential infringement, ‘Not our problem, sue the DOD.’
Mitchell Camera said ‘Nice patent, we’ll use it if we want to.’
Hazeltine (RCA) offered a flat $600, said ‘We have more lawyers than you do’
Senator Percy, Republican candidate for President, bought him lunch after letting his boys destroy Pop’s first article.
Librascope paid off 360,000 in 1960 dollars for probable infringement, and Pop built a 35 thousand sq ft research building at 2323 Teller Road, Newbury Park.
Northrup gave him a check for $100 on a laser high-energy gun patent in 1979, plus a paycheck.

The Big Boys have always subscribed to patents like ‘New Homes and Gardens’; lots of free ideas.
Also many new ideas will injure their archaic toll position and need killing.

Patents are only one thing: the right to sue. In the present legal climate, Musk has the only solution if you have a great new technical improvement; get your billion before you start and patents are for chumps.

The Inventor is dead, long live The Inventor!

lies and more lies

‘Qualcomm Says It’s Fighting For The Little Guy, While Really Blocking Patent Reform That Would Help The Little Guy’

Blah-blah-blah…so say Chinese and large multinational invention thieves. Don’t believe their lies. Look deeper and you’ll find their supposed ‘little guys’ are just store front token small entities designed to dupe the public and Congress. Inventors suspect ol’ Mikey is squarely in their pockets.

For more information please visit us at https://aminventorsforjustice.wordpress.com/
or, contact us at tifj@mail.com

Familiar patterns

I think of two brilliant examples. Some time ago, Clare Enders (who was Strategy Director of EMI Music earlier in her career) wrote an analysis of Napster – back when it was being sued to death – looking at the end result if it was left alone. Conclusion was that increased exposure in the music industry benefited every single constituent in that industry with one sole exception; the top 10 acts of each of the top 5 record labels. 50 people (or small groups) worldwide.

Recently Paul McCartney tried to justify increased copyright terms by saying he feared for the new artist trying to make a living. This is factual bullshit and in fact completely self serving – just like this Qualcomm inference that they care about ‘the little guy’.

Lies, damned lies, statistics and false controversies…

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