Promote the Progress

We've been having a bit of fun with the eBay v. MercExchange case over at IP Memes, the Technolawyer newsletter that I write with Steve and Doug. A few weeks ago, we posted a tongue-in-cheek look at the case from a patent troll's perspective. In this week's edition of Memes, we present the case from an infringer's point-of-view.

The folks at Technolawyer are kind enough to allow me to reproduce this particular meme below. If you'd like to read the newsletter regularly, head over to Technolawyer to sign up for your free account and select the 'IP Memes Newsletter' when configuring your account.

We hope you're able to laugh as much as we have at these brief interludes of humor. Comments are open...so let me know if you laughed or cried. Enjoy!



eBay, from an infringer's perspective

The setting is a telephone interview between a beat reporter looking for a few "money quotes" from an infringer following the Supreme Court's decision in eBay v. MercExchange.

Ring ... Ring ...

Reporter: C'mon ... please pick up, don't send me into voicemail again ...

Infringer: Hello?

Reporter: Ah ... hello Mr. Bin. My name is Jones, Cub Jones. I'm with the Times ... I've left you several messages over the last several weeks. I'd like to ask you a few questions about the recent Supreme Court decision in eBay v. MercExchange. Do you have a few minutes?

Infringer: Oh, yeah. Sure. I did get your messages and have been planning to call you back. Sorry. It's just been so hectic around here. I'm the Chief Operating Officer of this outfit, and I've been a little busier than normal since that decision was announced.

Reporter: Busier? How so?

Infringer: How so? Oh man, if only you knew. I had marathon meetings with the lawyers immediately after the decision was announced. Two days later, I signed off on no less than six (6) memoranda ordering plant retoolings and general ramp-ups in production for projects that were, ummm, on hold.

Reporter: What do you mean by "on hold?"

Infringer: Um ... let's just say that they're not on hold any more. Do the math, kid.

Reporter: So, eBay comes out, and several projects are "not on hold anymore." Is my math correct? Can I quote you on that?

Infringer: Yep. 2+2 is 4. And, yes, you can quote me. After all, it's the law of the land.

Reporter: You seem pretty confident. Seems odd, since eBay doesn't explicitly give anyone permission to infringe. I don't get it.

Infringer: They must not teach you journalists the math that they gave us in B school. Here goes ... It's not about permission ... it's about the penalty. Listen up ... those six projects ... they each had, um, patent issues, let's say. We didn't want to retool and ramp-up because the patent holder might have been able to shut us down with a pesky injunction. Infringement wasn't crystal clear, but the threat of the injunction was scary enough that we didn't want to invest the cash in new equipment and people only to lose the investment in that product later. Get the math now?

Reporter: I do. Thanks for the lesson. But you could still be found guilty of infringement and have to pay damages, right? Doesn't that concern you?

Infringer: Ahhh ... the math lesson is not complete, grasshopper. Damages we don't care too much about. We've done a risk assessment on the infringement issue for each project. The projects that get a, uh, high score have a hidden royalty priced into the product. We build a war chest, so to speak. When, er, I mean if we're found guilty of infringement, we just write a check from the chest. No skin off our back. But the shut-down ... now that peels skin off of our back. It hurts, bad.

Reporter: How so?

Infringer: Believe me, I've had to explain to some of your colleagues about plant shut downs and layoffs, all while ducking questions about executive compensation. That, my friend, is not fun. Like I said ... it hurts. Do Not Quote Me on That!

Reporter: Got it. I appreciate your candor. Time for a couple more questions?

Infringer: Sorry, kid. I can't stand around and teach you business math all day. I've got those six projects rolling, and two new ones have surfaced. The lawyers told me they "walked away from the bargaining table" with some patent holder and that "we've got the green light" on those projects as well. Not sure what it means yet, other than I've got to write two more retooling orders, higher another several hundred people to manufacture the things, and ask the Chief Financial Officer to open another coupla chests.

Reporter: Ok ... thanks. I'll be sure to show you the article before it goes live.

Infringer: Don't bother, kid. I'm too damn busy. We're making stuff, here.

Posted by J Matthew Buchanan at 06:54 AM | Permalink | Comments (2)

One of my side projects is writing Technolawyer's IP Memes newsletter with fellow rethinkers Doug and Steve. In this week's issue, we had a little fun with the eBay v. MercExchange decision. Don't get me wrong...we presented a serious analysis of the case, too. But, we thought it would be fun to look at the case from the perspective of a patent troll (we had to use our completely subjective definition of the term since we haven't seen a universally-accepted working definition yet).

The result, we think, is the best example of humor in patent law that we can find (don't forget that we are somewhat biased here).

I have reproduced this meme below. If you'd like to read our memes regularly, sign up for your free Technolawyer account here and pick the IP Memes Newsletter when configuring your account . As incentive, we're planning on presenting the case from both the infringer's and the district court judge's point of view in future editions. Now those will surely be hilarious.

So here it is - eBay, from a troll's perspective.



Ugh! I went and spent thousands of dollars on this freakin' patent in a bankruptcy sale and now what do I have? Nothing!

I thought I was making a smart investment. It surely wasn't easy ... I did a lot of due diligence upfront. I researched the validity of the patent (I made a judgment call on that - ya never know, of course). I also researched the market and potential damages involved (I made a judgment call on that, too ... not every company is a public company). Then I really got to work. I researched the question of infringement (I made a huge judgment call here, heck, I might even call it an educated guess; "you never know how the court will read the claims" is what the lawyers have told me thousands of times).

Then I got ready to beg. I began the search for a law firm to take the inevitable lawsuit(s) on contingency. Much to my surprise, this part was amazingly easy (think of the commercial with the surprised home owner hosting several bankers in her living room, all of whom are bidding on her one refinancing loan). Finally, I felt I was ready. Armed with all of my hard work and a modest checkbook, I went to the fire sale with my fingers-crossed, hoping to be the highest bidder. I got a huge surprise - nobody else showed up! I was the only bidder on the damn thing! No way.

My initial surprise quickly gave way to self-doubt, though. I began to question the soundness of my research. "I must be way off," I told myself.

But then it came to me...lightning struck, so to speak. A flash of genius hit me - I was the only one who did the research. Whoa ... the next thought was even bigger. I could make a business out of this. Hmm. Secretly, I also wondered if I could patent the idea .. hmm.

Anyway, back to reality.

I spent a lot of time and a lot of money (well, ok, not so much money) on this thing and now I've got nothing. eBay ... damn eBay. How ironic is it that the company that made good little capitalists out of every housewife in the country has killed my business idea? Justice Kennedy and his comrades granted every district court judge in the country permission to shine a flashlight up my you-know-what when I try to obtain the right that this thing is supposed to give me - the right to exclude.

I can hear the line of questioning now:

Q: "Did you ever try to make this thing?"

A: "Uh, no, I'm not a manufacturer, I'm an investor."

(I can hear my lawyers yelling at me for that answer, but what the heck, it's the truth.)

Q: "Was your first contact with my client, the infringer, an attempt to extract licensing fees?"

A: "Uh, yeah. I want money. Ain't that the American Way?"

(Now my lawyers are waving their arms at me.)

Q: "So you want money ... that we can give you. Money is no problem ... we've made millions off of the invention covered by your patent. But this exclusion thing ... why in the world do you want to deny the public the ability to purchase our beautiful, albeit infringing, product?" (I smell something fishy on that one. Must be bait. I'll take it.)

A: "I want more money. Moooooorrrrre Moooonnnnnnnnneeeeeeyy. The only way to get more money from you cheap bastards is to threaten you with a shut down. Don't you get it?" (Uh oh, now my lawyers are actually screaming at me. Did I do something wrong? We're on the same team here, guys, it's a contingency case ... it's more money for you, too. What the heck?)

Ugh. No way I want to go through that. Forget this whole patent thing. I guess I'll go look into a Dunkin' Donuts franchise or something easy like that. Maybe I could start selling troll dolls on eBay. Hmm ... there's an idea. I heard something about rapid prototyping .. maybe I could do some good with that. Hmm.

...

Think it's funny? Not so much? Any other comments? E-mail me.

Posted by J Matthew Buchanan at 10:07 AM | Permalink | Comments (1)

Law.com is running an article of mine on the eBay v. MercExchange case, argued before the Supreme Court this morning, in its IP Law Practice Center. You can view the article here (you'll need a law.com subscription), but I can send you a .pdf if you ask for it.

Posted by J Matthew Buchanan at 12:45 PM | Permalink

A .pdf of my retrospective article on patent law and policy in 2005 is now availble on the Dunlap, Codding & Rogers firm web site. You can view and/or download a copy of the article here.

I'm still not going to give away the punchline on the blog. I will, however, give a few more hints about my top story of the year. It has nothing to do with infringement that occurs partially in Canada, the patentability of drugs in India, the fate of software patents in Europe, or Ireland's new-found status as an intellectual property tax haven. Previous hints at the top story revealed that it has nothing to do with patent reform and is only partially connected with the United States.

Curious? Read the article...and send comments my way.

Posted by J Matthew Buchanan at 08:45 AM | Permalink

A "year in review" and "biggest story of the year" article of mine has been published on American Lawyer Media's Law.com. You can read Patent Law and Policy in 2005: Plenty of Drama, but How Much Change? here (registration required).

So what is my biggest story of the year? For now, you'll have to read the article to find out. But, I'll drop a couple of hints. First, it has nothing to do with patent reform. Second, it is only partially connected to the United States.

If you have any comments on the article, feel free to send me an e-mail.

Posted by J Matthew Buchanan at 07:26 AM | Permalink