Tag: Patents

Patents – non-conventional warfare?

“But if patents are non-conventional warfare, even these measures of “quality” become largely irrelevant. A “quality” patent is one that manages to frighten targets enough that they pay up. Nothing more, nothing less.”

PATENTS AS NON-CONVENTIONAL WARFARE

In a previous essay (Patents — conventional warfare?), Timo Tokkonen considered patents to be type of warfare between companies. By and large, this is probably the best way to think about patents.  What Timo described is the “conventional warfare” aspect of patents: going to court, and getting a “real value” for the patent.  Maybe it’s possible to extend to analogy:

What if the “non-conventional warfare” part is equally important?

By that, I mean value gained without ever going to court — by settlements and agreements that are made quietly outside the court system. Do we have any way of knowing how important this “hidden” side of the war is?

To put in another way: What if the “real” value of a patent is in how much money it can rake in without ever going to court? One way of quantifying the question is to ask: “How much are companies paying for patent license costs where the underlying patent is spurious, but cannot be invalidated without taking excessive legal risks?”

An economist would say that the question is nonsense, because a contract is a contract, and if someone agrees to pay, then  nothing illegal has happened. Perfectly true, if the two sides are evenly matched. Not so true, if one of the parties has an unfair advantage. (Again a term that no economist accepts. But as we have discussed earlier, non-practicing entities do have an asymmetric advantage over companies that produce something. These contracts may be narrowly  legally acceptable, but there is no reason to accept them ethically).

This is not a very comforting idea, because it would make it even more difficult to estimate the value/risk of a patent. Academics are making efforts to predict the “quality” of individual patents by looking at external parameters such as number of prior art references, a huge number of claims, a large number of later patents referencing the patent,  and so on (see for example  Shresta 2009, Allison et al 2010). The sole definition of “quality” here is “what wins in court”.  These efforts are valuable, because if successful, they would make it at least slightly easier to estimate risk.

But if patents are non-conventional warfare, even these measures of “quality” become largely irrelevant. A “quality” patent is one that manages to frighten targets enough that they pay up. Nothing more, nothing less.

If one considers this non-conventional aspect, then some of the claims of the pro-NPE camp (for example McDonough 2006) become a little suspect. Those authors are looking at what happens in the courtrooms. But what if all the real action is happening outside the courtrooms?

Can this issue even be studied academically? Perhaps. Bessen and Meurer 2012 used surveys as well as public legal data to estimate the direct costs from NPE litigation. They came up with a ballpark minimum figure of 29 billlion USD in 2011. They estimated that about one third of this cost came from cases that never went to court (i.e. our “non-conventional warfare”). This is 10 billion USD, much of it from small and medium-sized companies.

Since there are indirect costs associated with legal assertions, Bessen and Meurer suggest that the real figures could be twice as large. To give some scale: the total R&D spending in 2011 was 247 billion USD. The non-conventional costs would then be in the ballpark of 5-10% of R&D spending. One has to remember, of course, that this is not money that is “robbed” as such; some of the cases may be completely valid. Nevertheless, this is real money.

We have been trying to look for credible first-hand material on the Internet about people or companies that would actually have been harassed by trolls. However, the material tends to be second-hand or generic.The EFF has collected material on cases that would seem to fall into this category, but it is still anecdotal.  Even the various anonymous anti-troll web sites tend to focus on litigated cases. The unlitigated cases exist in a shadowland.

Anyone who is under active targeting will almost certainly remain quiet under his lawyer’s recommendation. And if a settlement is reached, non-disclosure tends to be required. Thus, it is likely that we will never hear of these cases through normal routes.  Any information on anonymous web sites should be treated skeptically at best.

We think Project Troglodyte might actually provide a service in this direction. We already have a fundamentally unconventional view into these issues. We inhabit a kind of twilight zone: not quite hardcore IPR professionals (though hangaround members perhaps), not quite average “persons trained in the art”.

If a patent frightens and confuses us, it will certainly frighten and confuse an average person. A patent attorney can take away a lot of of the confusion by explaining what the patent (possibly) means. But the attorney cannot take away the fright part.

Unconventional warfare calls for unconventional methods perhaps?

Acknowledgements: This posting benefited heavily from arguments raised by Niko Porjo.

Patents – conventional warfare?

“After all a patent is only what it is claimed to be under its claims, nothing more, nothing less. And even those are eventually validated in courts, not in patent offices. So in real life, nobody knows what has been patented until it has been tried in a court. …. It is only about patent strategy and tactics. If you don’t have one, your competitor might have. It is war after all.”

WHY ARE PATENT APPLICATIONS SO COMPLEX AND HARD TO UNDERSTAND?

[Edit: See also Part 2: Patents — non-conventional warfare]

Writing a patent application is a skill honed to the extremes over the last two centuries. It is a mumbo-jumbo-techy-legal text that needs great expertise to understand what its actually being said. I have often heard from colleagues that they do not recognize nor understand. But what is that they don’t understand? The draft patent application they are asked to comment that is written based on their original idea. They don’t recognize the idea anymore nor find it in the written text. They can read the words but do not understand the sentences.

What is behind this all then?

Filing and receiving patents is also a game blown to the extremes. Individual patents have very little value as such. It is easier to understand the text if one tries to understand them through the system. It is like politics, lot of words but less concrete actions. Although there are agreements signed here and there now and then, they too are valuable only as long as everyone respects them.

Patents can have real value in several ways. An individual can show in his CV how many patents he holds and thus is inventive or where his interests lie. A company or an (academic) institution may have protected and published their new results as patents. Sometimes it is deliberately chosen not to patent and rather publish the results so nobody can claim those in the future. Quite often very important ideas related to manufacturing are not patented at all. It is better to keep a secret and not show competitors how things are done. If someone later receives a patent for the same idea, a company may be able to prove they’ve done it for years and keep using it.

But the ultimate question is if someone infringes your patent – what are you going to do about it? If you do nothing, your patent is just gathering dust. You must have the capability to protect your rights as well. Be ready to fight and have the resources and willingness to do so. In some cases it is not beneficial to attack the small fish but rather wait for the more lucrative cases to emerge and only then hit – being a shark. The old term of Shark has been turned into Troll when someone does not produce anything but just owns patents and actively seeks compensation for its rights. According to our laws and practices it is legal to do so and there are no clear boundaries when one could not protect his rights.

The real value of a patent is settled when it is sold or a court decides a company must pay another for infringements. Before the actual tried case, nobody can exactly say how valuable an individual patent is. Just like in military, one can only plan strategies and gather equipment, but the value of preparedness and tools are measured only in real use.

There is a heated cold war going on in several industries where companies are fighting for market position and revenues. Some technological areas rise in importance and 10-20 years later the original and subsequent patents become of value. In some areas standardization and games played there adds another aspect. Consider these as being equivalent of UN when compared to warfare. And patents are the needed tactical weaponry one might need one day – uncertain is only which and when. Enter patent portfolios that try to enumerate tactical advantage with numbers over quality. An individual patent is relevant only when backed up with other patents in the same and other areas. The patent costs are not so important as you have to have the army in any case to be taken seriously.

Only when you cannot afford to keep an army does the situation change. Well of course companies actively prune their patent portfolios by trying to understand and focus on the important, strategic ones. Old patents can be discarded or sold to someone else, perhaps to NPEs (sharks, trolls, non practicing entities). But overall I would claim most smaller companies do not understand the strategic role of the patents. They either over- or underspend resources, but when a company and an idea is growing, nobody knows what eventually will result. Patent strategy for a start-up may be a shot in the dark that may be prematurely required by the investors. Of course this is not a general rule, but I’ve seen this happen.

So there are reasons why the patent system is like it is, but why are the patent texts then so hard to understand? Can’t one just say what one means and has done?

Of course, but… For a patent to have some value and merit, it usually should not be too restrictive. For example if one protects a door opening mechanism with one hinge, another company may show why a two hinge mechanism is so much better and bypasses the original idea. To be generic enough but still have some merit and validity in other areas as well is one of the reasons why the descriptions are so hard to understand. A patent should have Generalizability.

There are processes and technicalities to be followed when filing patents – one may amend the original application given it has been covered in the original application. Thus from one perspective it is good to cover a lot in the first explanation as it can be used to alter the claims later. If something is not described in the original,  no later changes are possible, as a general rule. Another reason to describe the idea broadly is to have the patent text itself act as prior art for future development. Patents are far from the only form of prior art. Future technical development is a question mark for everyone, so it is better if your patent is not tied only to the current implementation. Sometimes a very narrow patent is the best thing to have, but it may be hard to think about all the circumstances that the future may hold. Patents can be amended and used to describe prior art covering more than the patent itself.

Those are some of the easy reasons and excuses for the mumbo-jumbo-techy-legal aspect. It is possible that the application is deliberately written to be hard to understand. If you don’t understand it, the chances are the competition does not know what you are after. Some have speculated that being vague enough is a tactical move to get a patent granted. The patent examiner gets overwhelmed and is buried in prior art so that it is actually unclear what the idea is – it is claimed and seems to be new and innovative thus patentable. Patent text can be used to distract not just the competition but also the examiners.

In some cases the text may be written as a strategic weapon, thinking ahead what type of litigation may be waiting ahead. “Yes, we have independently come to that conclusion, please see our original patent application preceding the date…” and the like. Patent applications can be used to show and prove a point or any point.

Then there must be all the other reasons as well that one just cannot think of that somebody else does. It is a system and it acts like a system with its rules and weaknesses built in. But it is the system we have right now.

After all a patent is only what it is claimed to be under its claims, nothing more, nothing less. And even those are eventually validated in courts, not in patent offices.

So in real life, nobody knows what has been patented until it has been tried in a court. Different countries and courts may decide differently. And of course some patent applications take those into account during writing and filing as well. It is only about patent strategy and tactics. If you don’t have one, your competitor might have. It is war after all.

Troglodyte Driverless vehicles 5

 

SYSTEM AND METHOD FOR PREDICTING BEHAVIORS OF DETECTED OBJECTS

“Majority of the description text could be condensed to: autonomous vehicles should mimic the behavior of human drivers.”

The purpose of Project Troglodyte is to hunt for bad patents and to show what went wrong. For more information, please see the web page.

This patent is the fifth in a series of Google autonomous vehicle patents/applications analysed to get an understanding of the level of their inventions and the state of the autonomous car project.

 

Figure 1.

 

TIER 1: SUMMARY

It appears that the main purpose of the application is to expose a lot of prior art in one document, to make sure that it is easily found and public. This conclusion is made as there are about 12 000 words in the description but the claims only touch a very small part of it and much of the description text is obviously obvious to anyone skilled in the art, or misquoting from the application: “…understood by those of ordinary skill…“.

The actual idea that protection is sought for is changing how the vehicle is controlled based on detecting an object, classifying the object and based on the classification predicting the behavior of the object. And as Google is involved, creating a massive cloud based database of said behavioral data and sharing it around.

Majority of the description text could be condensed to: autonomous vehicles should mimic the behavior of human drivers. The description explains that processing of the object related information can be done at a location external to the car, this is also mentioned to be possible for the processing related to vehicle control decisions. This might open an interpretation that any controlling of traffic based on information originating in behavior prediction of single vehicles would fall under the protection of this patent. It would mean that any system arbitrating route decisions between vehicles to lessen traffic jams might need to license this.

Being able to predict behavior of nearby objects based on common experience is a valuable feature and will make traffic flow faster and safer. It isn’t mandatory for every autonomous vehicle though and thus wouldn’t likely block competitors from entering the field.

 

TIER 2: AVOIDING LICENSING

It seems that the possibility of using predictions of object behavior of nearby objects observed by other vehicles (or systems) is not mentioned. This would be useful in case large objects create shadows preventing direct observation. Using direct or network based vehicle to vehicle communication might be bandwidth limited in transferring the whole awareness of another vehicle. It would also be wasteful in use of processor resources as the same data would have to be analysed several times, so it would be prudent to  transfer only information deemed important for other vehicles.

If the classification scheme is left out it makes it possible to implement simpler threat prediction based on observed speed and direction. It would still be possible to use context dependent database to predict that for example vehicles in the left lane are more likely to transfer to the right lane during a certain time window at a certain time. This would likely be good enough for autonomous vehicles, but it would be less optimal as the classification scheme will lower the number of times the vehicle needs to alter it course to accommodate other vehicles. Vehicle without the classification ability would likely appear more selfish but if all vehicles are eventually  automated this would have less of an impact as it would now when all the drivers are humans.

 

TIER 3: TECHNICAL ANALYSIS

As stated above, major part of the description just portrays how humans approach driving. Context sensitive behavior prediction of classified objects is what humans are good at. But sharing the accumulated experience between humans is cumbersome. With this invention autonomous vehicles could share automatically on a massive scale. The invention here is not mind boggling, but they usually aren’t. I didn’t do a proper prior art search so it could already be out there, but generally this type of thing (essentially an optimization of a more general approach) is less likely to pop up in science fiction than most of the other stuff in the description.

The description is mostly useless. If the patent system worked, most of the stuff would have to be cut. If there is need to create prior art to stop trolls, write a white paper and publish it somewhere. For the price of a patent attorney it is probably possible to buy enough space in some regional newspaper to show the whole 12 kwords. On the other hand the description of the invention itself is very shallow in detail. Much more should have been given regarding possible ways to implement it, how to handle false identifications, how to handle different sensing abilities, who is responsible if bad data leads to accidents etc. Of course if the patent office doesn’t require this then it would be foolish for anyone to give it. Writing it down might have given a good patent engineer the chance to claim more and could have made this patent more valuable.

The claims only use a small portion of the text but cover that part fairly well. They are almost understandable, although the last one is complex enough that reading it requires more uninterrupted concentration than is usually available when the kids are around.

Troglodyte: Cleantech 2

“As inventors ourselves, we think this was already trivial somewhere around the year 1900 (the invention of radio).”

The purpose of Project Troglodyte is to hunt for bad patents and to show what went wrong. For more information, please see the web page.

SYSTEMS AND METHODS FOR REMOTE IRRIGATION CONTROL

[Writers: Jakke Mäkelä and Niko Porjo]

On June 5, 2012, a patent was granted (US8193930) named  “Systems and methods for remote irrigation control”.  The patent holder can now claim to own the following invention: someone has a rain sensor standing in a field; that rain sensor sends rain data to someone over a wireless network; and that information is used to control water sprinklers.

If we were to summarize our understanding of the patent, we would say it consists of saying in a complex way: “Remove the wire and insert equipment to make a wireless connection”. As inventors ourselves, we think this was already trivial somewhere around the year 1900 (the invention of radio). In the Appendix, we try to show this in much more detail.

We take a clinically analytical perspective here. We might not personally like this patent, and we see potential risks in it, but it is entirely up to the patent owner what happens with it. As we pointed out in The Trolling Triad, not everything is a patent troll that is called a patent troll.

Disclaimer: we are NOT talking about legal issues. In the patent world, it is the claims that are argued about in court. We are interested in the technical descriptions, that is, the new information that society gained by granting the patent. After all, that is the whole tradeoff behind the patent system; in exchange for a temporary monopoly to the patent holder, society gets full disclosure of what was invented.

We see nothing new here, hence no benefit to society.

The main risk we see with this patent is the precedent. In the wrong hands, this patent is broad enough to cause problems to anyone dependent on irrigation.  The main group at risk are small US companies who design or manufacture systems for irrigation control. A Google search with “irrigation control company” quickly brings up such a list.

This patent is spurious enough that it really is difficult to work around.  There are two ways to achieve such a blanket: by being very good, or by being very vague.  The patent certainly does not fall into the category of “very good”.

The deadening effect of spurious patents on the software industry is well known (see EFF). If such practices start to flow into industries that deal with crucial services, such as irrigation or food production, it is a bad precedent.  Innovation in this area will slow, and prices will rise due to the additional licensing costs. This can have a high societal impact in the long run.

 

 

TECHNICAL APPENDIX: IN-DEPTH ANALYSIS OF THE DESCRIPTION

The patent description is written around the figures and the dissection below follows this partition and may thus handle several paragraphs in one go. There is a short plain text summary of the patent text related to each figure, given in italics and followed by our comment. Each figure and its description will be analyzed and it will be shown that the description of the invention offers nothing new, in fact in terms of technology most of the content is positively ancient. It should be noted that many of the examples given as prior art fit more than one part of the description.
The technical field is described as follows “…remotely operated systems, and more particularly to a computerized system for monitoring, reporting on, and controlling remote systems by transferring information signals through a wide area network (WAN) and using software applications hosted on a connected server to appropriately process the information.”
Fig 1. Describes shortcomings of prior systems, the main message is that  wires are required to connect sensor actuators to controllers and further to more remote computers or humans running decision making algorithms and finally to power sources. —–   For example this Skylab Saturn IB Flight Manual describes how a range safety officer could use a wireless connection to trigger destruction of the vehicle based on part on telemetry readings received from the vehicle. Tracking stations forming a wireless network around the world were used to send and receive telemetry data.  —–  Radioisotope thermoelectric generators have been used to power both lighthouses and monitoring equipment on earth. In a less extreme example mobile phones have always been battery powered and since they include a microphone (sensor) and an actuator  (vibrating alert) they can be called a sensor actuator. Thus the problem of wired connections for data and power for remote units has been solved a long time ago by using wireless radio technologies.
Fig 2. According to the text fairly complex network can be constructed with wireless transceivers connecting the sensor actuators through local controllers to a network. Specific software can be run on different nodes, connections can be one way, wireless communications can be established through several nodes if they are in range and data can be gathered by and commands can be sent from computers on the network.  —–  Two abbreviations: GSM and SMS. A GSM network consists of back end infrastructure (computers, wires…) connected to base stations through either wired or in some cases wireless two way data network. Mobile devices are connected to the base stations by a radio frequency link. While in a digital system all information is transferred as digital data, the Short Message System offers an example where the originating data is something else than audio.   —–    Handheld radio transceivers or walkie-talkies have been around since at least WWII, the technical task of integrating one of these with a mobile phone and others with sensors to create a sub network of sensors is straightforward.  —– As mentioned in the description each node of a network can and usually does host application specific software, for example mobile devices with the “Nokia OS” have been sold in their billions.
Fig 3A. Describes for example a subset of functions of a mobile phone.  —– But very superficially.
Fig 3B. Describes for example a more restricted subset of functions of a mobile phone and mentions the emergency call function. —– But very superficially.
Fig 3C. Compared to 3A and 3B an actuator is added.  —– Using a radio transmitter such as a mobile phone or a walkie talkie to control an actuator is a trivial exercise and has been around since the 1960s in the form of RC toys.
Fig 3D. Describes how predetermined codes are coupled with sensor outputs and transmitted to appropriate network nodes.  —– This is a simplified example where a lookup table has only four alternate states. A vocoder offers the same function, information from the sensor (microphone) is coded to relatively few states that then sent over the network.
Fig 3E. Adds a GPS receiver.  —– Mobile phones have included GPS receivers since about 1999 but as will be discussed below aircraft altitude information has been transmitted in wireless networks long before that, replacing the altitude information source with a 3D location source is not inventive.
Fig 4. Describes a generic data processing unit with data connectivity and ability to take actions based on the data it receives. —– It is very generic and could for example represent a computer in a mobile base station.
Fig 5. Similarly to Fig 4 a very generic description of a Wide Area Network is given and it is mentioned that one of the local controllers can be attached to a WAN.  —–  A mobile base station might have a WAN connection and in many cases has a wired connection either over an IP network or for example a telephone network.
Fig 6. Is an application of some of the preceding ideas to a “utility meter monitoring system”.  —– It fails to include the idea of being able to cut the supply in case the bills are not paid. As general technologies for creating exactly this type of networks have been shown above to have existed for a long time this application is not new.
Fig 7. Is an application of the preceding description to automotive fault code transmission. A car with On Board Diagnostics connected to a transceiver for communication.  —– This is again a variation of telemetry. In Formula One these systems apparently surfaced in the early 1990s. As an example 2-way telemetry is mentioned casually in this June 1993 issue of Popular Mechanics. Data transmission from a pit computer through a telephone network using a modem would have been a trivial exercise.
Fig 8. Is an application of the preceding description to an irrigation system. —– It’s a wirelessly transmitting weather station and a remote controlled actuator in the same box while the decision algorithm runs on a remote computer.
Fig 9. As Fig 8 but applied to a parking facility. —– It’s a parking facility with wires replaced by wireless connections.
Fig 10. Introduces a system that monitors and controls all of the applications of Figs 7 through 9, instead of a dedicated monitor / controller for each system. It also says that some of the hardware of co located applications may be shared. —– A network server may be in connection with several mobile phones each connected to a different computer through a BT connection acting as a modem, each of those computers may in turn be controlling a  Mars rover through the Deep Space Network while simultaneously communicating with a different server running World of Warcraft.  ———   On a more serious note, a system or computer receiving interrogation information from several air traffic control radars is monitoring several networks of transponders simultaneously. The basic technology has been around since WWII as can be seen for example from this 1965 issue of Popular Science; for obvious reasons it is wireless. Further as several radars can see the same transponders, several monitoring systems can receive information from the same radars (i.e. civil and military controllers) and the radars can belong to different networks (i.e. be part of networks in different countries) equipment reuse on several levels has also been around for some time.
Fig 11. Describes a message data structure with error indication. —–  See this document for a short description of how morse code messages are formatted. This book gives more general data structures for communication. A short introduction to error correction can be seen here.
Fig 12. Shows several examples of the message structure and explains how the devices can be pinged to check their and the networks health.  —–  Ping has been around since 1983. Almost any digital network requires a message structure to be able to route messages to correct destinations (IP).
Fig 13. Describes a data translator that converts signals in a legacy system to function codes. These codes can then be transmitted through transceiver(s) until they reach a WAN.  —– This is the same as attaching a wireless telemetry module to an existing wired network.
Fig 14. Describes how one of the sensor actuators having a transceiver may be integrated to a ship, plane, car etc. And how this unit can then be used to collect information.  —– Again the reader is encouraged to see Skylab Saturn IB Flight Manual for a description of how telemetry is used in rocketry. For a more recent system see patent 5,890,079.
 

Troglodyte: The trolling triad

“So is Sipco a patent troll? I follow the old adage: ‘If it quacks like a duck and walks like a duck, it probably is a duck.’ Sipco even smells like a duck. You decide.”

The purpose of Project Troglodyte is to hunt for bad patents and to show what went wrong. For more information, please see the web page.

SIPCO LLC

What makes a patent troll truly venomous? In a previous posting I analyzed a spurious patent owned by Sipco LLC. I will now analyze Sipco itself. I use Sipco as a concrete example because it sticks out so nicely. It is also involved in technology areas with a high human and environmental impact. That worries me (see Trolling on the human rights;  The kiss of death of IPR;  Another view; Humanitarian Patent Pool).

The Wikipedia article on patent trolls has a  perfect definition: “Patent troll is a pejorative term used for a person or company who enforces patents against one or more alleged infringers in a manner considered aggressive or opportunistic with no intention to manufacture or market the patented invention.”

The difficult part is the term “considered”.  Bad press by itself means nothing. In my decade of IPR experience I have really learned only one useful thing: trust no one. The press could be wrong, or biased, or even bought off. And blogs… forget it.

Sipco certainly has gotten very bad press. See SmartGridToday,  Green Patent Blog, CleanTech Blog. There’s no doubt that Sipco is litigating aggressively, and doing it proudly and openly (The SmartGridToday article in particular is fascinating, as it describes the company owner’s worldviews in his own words). But that’s not good enough. I believe it’s crucial to be as coldly objective as possible.

The trolling triad

I believe that there are three characteristics that a company needs to have to be considered a truly dangerous troll. The company has a provable history of aggressive litigation; the company doesn’t actually produce anything itself; and the company’s patent portfolio consists of spurious and overly vague patents.  I call this the “trolling triad”.

Two out of three can make a company a nuisance, but I believe that all three are needed  for a company to become the equivalent of a loose cannon.

Flag 1: Aggressive litigation

If a company is heavily involved in litigation, it may be a red flag.  It is not automatic proof of anything. If someone genuinely invests money and time into development, and then finds that someone else is making huge profits on the invention having copied it, the inventor does have a case (legal, and perhaps even moral) for suing the copycat. It’s necessary to look at the context.

(Personal sidenote: I can actually empathize with inventors who go berserk when their ideas are stolen, and go on a litigation rampage. If an inventor spends years of his life working on something, it gets personal.  If he further sacrifices his money, friends, health, and family for the invention, it gets deeply personal).

Sipco’s case is quite clear though. The references above make it amply clear that Sipco is in the business of aggressive litigation, and is proud to be so. Sipco’s own press release in PRNewswire also shows that its main business is licensing. One red flag.

Flag 2: Lack of own production

From Wikipedia again: “The non-manufacturing status of a patent troll has a strategic advantage, in that the target infringer cannot counter-sue for infringement.” When two companies both actually produce something, there is a balance of terror. If one sues the other and tries to halt production, the other can sue back and try to halt production. Many of the highest-profile patent litigation cases, for example in the telecommunications industry, are of this type.

I will now say something that may come back to haunt me: I feel that when two equally big players fight each other, society really doesn’t suffer. If one of the players loses, then the other one will just keep manufacturing and developing the products that were argued about.  For us in the audience, it really is mostly just a game.

However, if one of the participants is actually producing nothing, it can turn deadly serious. The non-practicing entity (NPE), to use the polite term for a troll, cannot be countersued. If the NPE wins, at minimum the cost of the product will rise due to the extra licensing costs. At worst, the NPE can actually prevent the product from even being produced, and can certainly drop further development dead in its tracks.

However much I search, I can’t find anything that Sipco would actually have produced. Absence of evidence is not evidence of absence, and if I run into some actual Sipco product, I will consider retracting the flag. But for now: second flag, bright red.

Flag 3: The patent portfolio

The truly lethal trolls are ones that have overly broad and vague patents in their arsenal. As long as the patents are specific enough, only a limited number of companies can be attacked. But if the patents are too spurious and vague, almost anyone can be attacked on almost any grounds.

(See the EFF’s Patent Busting site for examples. My personal favorite is the patent on taking and scoring educational tests online. It takes real chutzpah to demand royalties on something like that).

Trying to evaluate the “quality” of a patent is difficult and subjective, but I have so far analyzed Sipco’s patent US7739378 on pollution monitoring. I considered it essentially spurious, and it should not have been granted. So far, I’m not aware of litigation over that patent though.  GreenTechGrid discusses several other Sipco patents in the smart grid technology area, which Sipco is in fact litigating on.  Based on a quick look, I am highly skeptical whether those patents have much merit, but I need to analyze them more closely. Somewhat tentatively, a third red flag.

So is Sipco a patent troll? I follow the old adage: “If it quacks like a duck and walks like a duck, it probably is a duck.” Sipco even smells like a duck. You decide.

 

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