Thursday, July 09, 2009

Mullin's "Prior Art" blog tries to smoke Ebert

On July 8, Joe Mullin, in an article titled Good Magazine Goes Bad: The Ethics of Patent Trolling leveled criticism against an article in "Good Magazine" on Erich Spangenberg, described by Mullin as one of the most successful "patent trolls."

The Mullin article does not name the author of the Good Magazine piece, but does state:

I know the writer was aware of my blog ["The Prior Art", TPA], and TPA posts alone could have provided her with plenty of leads to the litigation record, including the Wisconsin opinion where Spangenberg was found shuffling his patents around to repeatedly sue the same defendants, and where a judge found Spangenberg had engaged in witness tampering (that case is noted in the comments of the Good story, which are universally negative.)

[IPBiz notes that the author/poster of the piece The Patent Troll is Heather Skyler. IPBiz notes that the comments to Skyler's piece are largely negative, including one linking to TechDirt: I’ve never heard of Good before, but if this is the standard of the site I’ll steer well clear of it.Read this for some more comments: A comment by David was NOT negative: “this guy” contributes to society by participating in the patent market as a buyer. Most inventors don’t have the resources to sue the big corporations for patent infringement and win. So they to sell to a patent troll. At least they make some money whereas without him they would get stiffed.]

In the text cited by Mullin, Mullin is effectively saying: Gee, she knew about my stuff, which was highly relevant, but she didn't include it. That's really bad. Ironically, Mullin's invocation of "awareness" becomes relevant later on.

Specifically, LBE comes in for a drubbing in the text:

(Some folks, like patent lawyer Lawrence Ebert, have criticized the fact that I continue to mention the presence or lack of copying allegations. Those criticisms are out of touch with reality. Copying and "stealing" are terms used constantly in discussions of patent disputes, and that's why I write about that.)

If one criticizes Mullin for pointing out that evidence of copying is IRRELEVANT to an assertion of patent infringement, he will respond "I know that," but the rest of Mullin's line is a long non sequitur.

Patent infringement is strict liability. It simply does not matter if the patent infringer was "aware" of the patent (or of Mullin's blog). If the accused infringer has a product or process that falls within the scope of a claim, it is over, case closed. The worst thing that can happen to an infringer is an injunction: the infringer is shut down, all happening without awareness of the patent. If there were awareness, damages might be enhanced for willful behavior, but the infringer can put forth a defense of a legal opinion, saying "my lawyer said it was all right." If the accused infringer's lawyer has created a reasonably credible argument, that is usually the end of the willful (aka copying) part of the story. If you are a patent holder, which part of the infringement allegation are you most interested in, the "strict liability" part or the copying part? It's a no-brainer. Arguably, Joe Mullin, who is not a patent lawyer, is out of touch with the nuts and bolts of patent litigation. Without ever bringing up copying (evidence for which can be hard, and defenses numerous), the patentee just says "it fell within the scope of my claim" and gets damages and an injunction.

In pushing the "copying and stealing" angle, Mullin has been recycling ideas from Mark Lemley, and in effect serving a conduit role as Lemley's publicist. Returning to Mullin's initial point about the awareness by Skyler of Mullin's blog items on trolls, one notes that Lemley was likely aware of Kesan's earlier studies on troll litigations, but never cited them. Mullin didn't mention that, and likely never will.

Which brings up a final point. The reason patent infringement is strict liability is because the patent system is designed to encourage people to read patents, which reading makes such people "aware" of what is going on and which reading will guide them NOT to be infringers. The reason for having a patent system is public disclosure of information, to avoid continued
re-discovery of wheels. Perhaps because Lemley hasn't figured that out (eg, Rational Ignorance), Mullin hasn't figured it out either.

See also

Joe Mullin on copying

On Kesan and Lemley ==>
"Trolls on top?" or how not to cite relevant work?
which includes the text:

What one won't find in the SSRN paper (posted 21 May 09) is a reference to work by Gwendolyn Ball and Jay Kesan on troll litigations which appeared earlier than that of Lemley et al. [Refer to the March 2009 IPBiz post
Patent law academics make troll studies a growth industry]

On troll studies ==>
Patent law academics make troll studies a growth industry
, which includes the text:

The convenience of not remembering history when discussing patent reform, noting the irony that many patent reformers, who criticize the USPTO for not finding prior art, tend to ignore prior art themselves. [Recall Emerson: the louder he talked of his honor, the faster we counted our spoons.]

Mullin's writings may raise spoon-counting to a new art form.

**Update, from Mullin on 15 Sept 09

Troll Tracker [Frenkel] defamation case goes to trial -- opening statements heard


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