Abolish The Patent, Vanquish The Troll

Filed in Cloud Industry Insights by Alan Schoenbaum | April 12, 2013 10:10 am

We’ve been vocal in our opposition of patent trolls and their attempts to extort settlements from businesses that actually create value. And we’ve done more than talk—in the past month, we fought a troll in court, and won[1], and we turned the tables on another, suing them in Federal Court[2].

It is sad, but true, that Rackspace is just one of many companies dealing with endless suits over dubious patents. It’s a never-ending game of whack-a-troll. What is different, though, is that we have decided to break the silence and shine a bright light on these patent-powered parasites.

Recently, we were sued by a Patent Assertion Entity (PAE) called Rotatable Technologies. Rotatable owns a patent that it claims covers the screen rotation technology standard in just about every smartphone. You know, when you flip your device sideways and the screen shifts orientation from portrait mode to landscape mode? Like nearly all the apps in the Apple and Android app stores, Rackspace uses standard functionality provided by Apple’s libraries and Android open source software to provide this display feature in one of our mobile cloud applications.

Rotatable provides a textbook case of patent extortion. One court identified how to spot patent extortion: a patent troll will file a series of “nearly identical patent infringement complaints against a plethora of diverse defendants.” (Eon-Net, 653 F.3d 1314.) Trolls do this to cast as wide a net as possible. They purposefully include companies that aren’t prepared to engage in patent litigation.

Rotatable didn’t just sue us; they’ve sued a number of companies[3] including Apple, Netflix, Electronic Arts, Target and Whole Foods Market.

Patent trolls then follow each filing with a settlement demand “at a price far lower than the cost to defend the litigation.” (Id. at 1326.) This allows trolls to use the high cost of litigation as a club against operating companies. Patent litigation typically costs defendants between $1 million and $5 million[4] just to stay in the fight.

When Rackspace contacted Rotatable to ask for a routine extension of time to answer their complaint, Rotatable admitted their trollish motives. Unprompted, they told us they had been instructed by their client to offer a settlement of $75,000 to anyone who contacts them asking for an extension of time. And that the number was negotiable.

As patent settlements go, that is very cheap. We also believe it is completely unacceptable.

Rackspace has decided to stick up for ourselves, the open source community, app developers and every other company in the mobile applications world. Today we filed a challenge to Rotatable’s patent in the patent office (see the petition[5] here). It’s called an IPR, or Inter Partes Review[6]. It’s a new proceeding made available under the America Invents Act[7]. It gives us a chance to show why the patent is invalid and should not have been issued in the first place. Once we file the IPR, the patent holder can file a response. From there, a board of patent reviewers has a year to decide whether the patent in question is valid.

When it comes to fighting this particular troll, we believe an IPR is our best option to have this patent abolished at its source – eliminate the root, destroy the weed. We are optimistic that the patent office will agree with our petition and invalidate the patent, stopping Rotatable from attacking businesses in hopes of pilfering their hard-earned money and hindering app developers and the open source community from bringing their best every day.

IPRs can be risky and costly. We know this IPR will cost us more than the $75,000 that Rotatable wanted to extort from us. But we are not just fighting for us; we are fighting for all the app developers who are also in the line of fire. As the noted software engineer and blogger Joel Spolsky wrote[8], “Life is a bit hard sometimes, and sometimes you have to step up and fight fights that you never signed up for.”

Endnotes:
  1. we fought a troll in court, and won: http://www.rackspace.com/blog/mathematics-cannot-be-patented-case-dismissed/
  2. we turned the tables on another, suing them in Federal Court: http://www.rackspace.com/blog/why-rackspace-sued-the-most-notorious-patent-troll-in-america/
  3. number of companies: http://www.webpronews.com/apple-sued-over-rotating-windows-on-ios-devices-2012-05
  4. between $1 million and $5 million: http://www.patentinsurance.com/iprisk/aipla-survey/
  5. the petition: http://a3ba8a9e733f0f48e083-34c21d0cbf24e519af797fddd23e1832.r18.cf1.rackcdn.com/Documents/Petition.pdf
  6. Inter Partes Review: http://www.uspto.gov/aia_implementation/bpai.jsp#heading-1
  7. America Invents Act: http://en.wikipedia.org/wiki/Leahy-Smith_America_Invents_Act
  8. wrote: http://www.joelonsoftware.com/items/2013/04/02.html

Source URL: http://www.rackspace.com/blog/abolish-the-patent-vanquish-the-troll/