eBay v. MercExchange - from a patent troll’s perspective

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.

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