Patent Law

No Surprise

By Gary Odom and Jordan Kuhn

Rick Frenkel's setup for blogging always seemed a bit queer - anonymously blogging voyeuristically, by supposedly peeking behind the curtain of non-practicing patent holders quietly enforcing their patents, as if anyone should care about that ipso facto. That the blog name was Patent Troll Tracker was a dead giveaway to the author being a serious case of IP arrested development. That he did so anonymously was the silly irony: wanting to unmask while staying masked.

Frenkel started his blog "mainly out of frustration."

I was shocked to learn that a huge portion of the tech industry's patent disputes were with companies that were shells, with little cash and assets other than patents and a desire to litigate, and did not make and had never made any products. Yet when I would search the Internet for information about these putative licensors, I could find nothing. I was frustrated by the lack of information, and also by the vast array of anti-patent-reform bloggers out there, without a voice supporting what I did believe and still believe is meaningful reform."

Frenkel was shocked to learn that licensing companies enforce patents for inventors without generating much publicity. Apparently Frenkel never bothered to consider why patent holders couldn't just get a license for their patents from companies practicing their inventions without resorting to litigation. We're talking about Cisco's IP Director. Earth to Frenkel, come in....

Why did Frenkel blog anonymously in the first place? If you knew that Frenkel was who he is when you read his blog, maybe you'd discount the content, figuring it tainted by the messenger. Since you knew, by the very title of the blog, that the author had an axe to grind, maybe you'd discount the content, figuring it tainted by the messenger. That's quite an echo.

In his self-outing yesterday, Frenkel cites fear:

Why blog anonymously? For one, I really didn't want the publicity. Second, I feared that someone would claim to have the patent on blogging, and I might face a retaliatory lawsuit.

It brings to mind replicant Roy Batty's line in Blade Runner: "Quite an experience to live in fear, isn't it? That's what it is to be a slave."

While Frenkel and I may agree on an important part of the big picture: patent quality is important; we appear to disagree on devilish details. I think that patents are a commodity, and that the patent system ought to be a level playing field, as practically as that can be achieved for the "sport of kings." Frenkel seems to have a different perspective.

Which is why I hope Frenkel will keep blogging - because complex issues ought to be looked at from every angle. Now that the mask is off, hopefully Frenkel will come clean and do a better job of explaining his views, rather than just picking on trolls.

By way of comparison for blogging motivation, Patent Hawk took the opposite tack of Rick Frenkel, albeit irony still romps. I started The Patent Prospector, among other motivations, as a publicity vehicle for my practice.

What I didn't think I'd do was self-immolate by spouting opinions inimical to my business self-interest. Companies like Intel, Oracle, and Cisco are my natural client base.

But I wear naked self-interest like a hair shirt. And integrity isn't something worn on the sleeve and sent to the laundry when it gets a little soiled, to be scrubbed clean and put back on for display. I accept that ubiquitous corruption constitutes human existence, but that doesn't mean I shouldn't squeak about it in my own small voice.

While Gary Odom, Patent Hawk proprietor, plays many roles in the patent game, Patent Hawk's bread-and-butter business is helping litigation defendants by invalidating asserted patents. The client feedback consistently received is that Patent Hawk is the best in the business on that score. Rick, if fending off pesky patent trolls is part of your frustration, make a smart move by picking up the phone and enlisting Patent Hawk's assistance. Comity does not preclude airing disagreements, at least in my book. While I don't mind publicly slapping you upside the head when you are not a client, I'd also be tickled to help you out, Rick; and keep my mouth shut about it when you are a client. (206) 529-5146.

Full post as published by The Patent Prospector on February 24, 2008 (boomark / email).