One Comment

There are a lot of errors and misconceptions in Curtis’s talk. Just a few:

– He argues that defendants should fight the infringement, not the patent. That might work in his case, where there was (apparently) no infringement, but frequently there is infringement, and overturning the patent is the best option.

– His cost estimates are all messed up, particularly when he states that it is cheaper to fight infringement than to fight the patent, and when he estimates a successful patent defense would cost $2M over 18 months for Yahoo or other large companies. It is true that against a small company, in a completely meritless case, a defense could sometimes be made for that sum. But against larger defendants, the discovery costs alone would quickly reach that. Patent litigation can easily cost $1M per month, albeit depending on the case. Remember as well, that most patents are not as simple to explain as the newsreader one: infringement in a case where the technical details require training and experts dramatically increase costs and randomize the outcomes.

– FARK was in a very unusual situation in its patent defense because it was able to publicize its defense and probably help its public image by doing so. Curtis never states what the actual costs he spent fighting the lawsuit were, and whether they were cheaper than settling early would have been, discounting any positive publicity to his site.

– Like most people, Curtis sometimes uses “patent troll” for “patent plaintiff”; sometimes for “non-practicing entity (NPE)”; and sometimes for “plaintiff in a meritless lawsuit.” Even the notion of “meritless” is unclear here, as sometimes he seems to mean “legally meritless” and sometimes “meritless from the point of view of common sense.” The $.5E12 number, for example, probably alluded to patent plaintiffs, not NPEs.