06:41
TED2012

Drew Curtis: How I beat a patent troll

Filmed:

Drew Curtis, the founder of fark.com, tells the story of how he fought a lawsuit from a company that had a patent, "...for the creation and distribution of news releases via email." Along the way he shares some nutty statistics about the growing legal problem of frivolous patents.

- Web entrepreneur
Drew Curtis is the founder and administrator of Fark.com. Full bio

Last January, my company, Fark.com, was sued
00:15
along with Yahoo, MSN, Reddit,
00:19
AOL, TechCrunch and others
00:22
by a company called Gooseberry Natural Resources.
00:25
Gooseberry owned a patent
00:28
for the creation and distribution
00:30
of news releases via email.
00:32
(Laughter)
00:35
Now it may seem kind of strange that such a thing can actually be patented,
00:38
but it does happen all the time.
00:41
Take something already being done
00:43
and patent it for an emerging technology --
00:45
like phone calls on the internet
00:47
or video listings for TV shows
00:50
or radio but for cellphones,
00:53
and so on.
00:55
The problem with these patents
00:57
is that the mechanisms are obscure
00:59
and the patent system is dysfunctional,
01:01
and as a result, most of these lawsuits end in settlements.
01:03
And because these settlements are under a non-disclosure agreement,
01:06
no one knows what the terms were.
01:09
And as a result, the patent troll can claim
01:11
that they won the case.
01:13
In the case of Gooseberry Natural Resources,
01:16
this patent on emailing news releases
01:18
had sort of a fatal flaw
01:20
as it pertained to myself,
01:22
and that was that in the mainstream media world
01:24
there is only one definition for news release,
01:26
and it turns out that is press release --
01:29
as in P.R.
01:31
Now my company, Fark,
01:33
deals with news, ostensibly,
01:35
and as a result
01:37
we were not in violation of this patent.
01:39
So case closed, right?
01:41
Wrong.
01:43
One of the major problems with patent law is that,
01:45
in the case that when you are sued by a patent troll,
01:47
the burden of proof that you did not infringe on the patent
01:50
is actually on the defendant,
01:53
which means you have to prove
01:55
that you do not infringe on the patent they're suing you on.
01:57
And this can take quite a while.
02:00
You need to know that the average patent troll defense
02:03
costs two million dollars
02:06
and takes 18 months when you win.
02:08
That is your best case outcome
02:11
when you get sued by a patent troll.
02:13
Now I had hoped to team up with some of these larger companies
02:15
in order to defend against this lawsuit,
02:18
but one-by-one they settled out of the case,
02:20
even though -- and this is important --
02:23
none of these companies
02:25
infringed on this patent -- not a one of them.
02:27
And they started settling out.
02:30
The reason they settled out
02:32
is because it's cheaper to settle than to fight the lawsuit --
02:34
clearly, two million dollars cheaper in some cases,
02:36
and much worse if you actually lose.
02:39
It would also constitute a massive distraction for management of a company,
02:41
especially a small eight-man shop like my company.
02:44
Six months into the lawsuit,
02:47
we finally reached the discovery phase.
02:49
And in discovery phase,
02:51
we asked the patent troll to please provide
02:53
screenshots of Fark
02:55
where the infringement of their patent
02:57
was actually occurring.
02:59
Now perhaps it's because no such screenshots actually existed,
03:01
but suddenly Gooseberry wanted to settle.
03:05
Their attorney:
03:07
"Ah, yes. My company's having a reorganization on our end."
03:09
Never mind the fact
03:13
that the address led to a strip mall somewhere in Northern L.A.
03:15
with no employees.
03:17
"And we'd like to go ahead and close this out.
03:19
So would you mind giving us your best and final offer?"
03:21
My response:
03:25
"How about nothing?!"
03:27
(Applause)
03:29
We didn't have high hopes for that outcome.
03:34
(Laughter)
03:36
But they settled.
03:38
No counter offer.
03:40
Now, as mentioned before,
03:42
one of the reasons I can talk to you about this
03:44
is because there's no non-disclosure agreement on this case.
03:46
Now how did that happen?
03:48
Well during the settlement process, when we received our copy, I struck it.
03:50
My attorney said, "Nah, no chance of that working."
03:53
It came back signed.
03:56
Now why? You can call them.
03:58
They're not under NDA either.
04:01
Now what did I learn from this case? Well, three things.
04:03
First of all, if you can,
04:06
don't fight the patent, fight the infringement.
04:09
Patents are very difficult to overturn.
04:12
Infringement is a lot easier to disprove.
04:14
Secondly, make it clear from the beginning
04:17
that either you have no money at all
04:19
or that you would rather spend money with your attorney fighting the troll
04:21
than actually giving them the money.
04:25
Now the reason this works
04:27
is because patent trolls
04:29
are paid a percentage of what they're able to recover in settlements.
04:31
If it becomes clear to them that they cannot recover any money,
04:34
they become less interested in pursuing the case.
04:37
Finally, make sure that you can tell them
04:40
that you will make this process
04:42
as annoying and as painful
04:44
and as difficult as possible for them.
04:46
Now this is a tactic that patent trolls are supposed to use on people
04:49
to get their way.
04:51
It turns out, because they're paid on contingency,
04:53
it works really, really well in reverse.
04:55
Don't forget that.
04:57
So what does all this mean?
04:59
Well to sum up,
05:01
it boils down to one thing:
05:03
Don't negotiate with terrorists.
05:05
(Applause)
05:08
Patent trolls have done more damage to the United States economy
05:13
than any domestic or foreign
05:16
terrorist organization in history
05:18
every year.
05:21
And what do they do with that money?
05:24
They plow it right back into filing more troll lawsuits.
05:27
Now this is the point in the Talk
05:31
where I'm supposed to come up with some kind of a solution for the patent system.
05:33
And the problem with that
05:36
is that there are two very large industry groups
05:38
that have different outcomes in mind
05:40
for the patent system.
05:42
The health care industry
05:44
would like stronger protections for inventors.
05:46
The hi-tech industry
05:48
would like stronger protections for producers.
05:50
And these goals aren't necessarily diametrically opposed, but they are at odds.
05:52
And as a result, patent trolls can kind of live in the space in between.
05:55
So unfortunately I'm not smart enough
05:59
to have a solution for the patent troll problem.
06:01
However, I did have this idea,
06:04
and it was kind of good.
06:07
And I thought, "I should patent this."
06:10
(Laughter)
06:12
Behold, patent infringement via mobile device --
06:15
defined as a computer which is not stationary.
06:20
My solution: award me this patent
06:24
and I will troll them out of existence.
06:26
Thank you.
06:28
(Applause)
06:30

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About the Speaker:

Drew Curtis - Web entrepreneur
Drew Curtis is the founder and administrator of Fark.com.

Why you should listen

In 1993, while a student in England, Drew Curtis began sending links to his friends. Over time that grew until he founded a website for the links: Fark.com. The site has now grown into one of the largest, and most irreverant, news aggregators on the web.

Along with managing Fark.com, Curtis speaks on behalf of other entrepreneurs targeted by "patent trolls" -- an epithet for companies or law firms that file aggressive, broad patent lawsuits against other companies.

Download a .zip file of Drew Curtis and Fark's court documents >>

More profile about the speaker
Drew Curtis | Speaker | TED.com