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War on Error

Eugene Kaspersky, patent troll killer

Defeating patent trolls (disambiguation: patent asserting entities) in court has been a rare event in the tech industry but security firm Kaspersky Lab seems to be making a habit of it. Its latest scalp is the notorious Lodsys, which last week withdrew a claim against the firm for claimed infringements of four patents dating back to 1992.

One could pick open the absurdity of the claim made by Lodsys for patents relating to feedback mechanisms on networks (for instance ‘reporting an error’) so generic it is hard to grasp why they were ever granted in the first place, but that’s probably a mechanism of time. General ideas that sound uninteresting turn out possibly decades later to be quite useful after all even if the original filing could never have anticipated this.

The more interesting part of the story is that Lodsys filed claims against 55 firms, including Atari, Symantec and Estee Lauder, the ,majority of whom decided to pay up to the tune of $5 million (£3.5 million). Only Kaspersky Lab resisted as far as the court room, just as it did in the IPAT troll case of 2012 where 35 security firms named in the original suit paid up. Again, only Kaspersky Lab held out until the case was dismissed.

Eugene_Kaspersky.jpgThe bigger question is why so many well-resourced firms pay up and, conversely, why Kaspersky Lab most definitely does not. 

Answering the second part first, as far as one can tell, Kaspersky Lab tells the trolls to get lost because its well-known founder and CEO Eugene Kaspersky just hates those guys on a point of principle. How about this for a quote:

“Our position is firm. No concessions to the trolling scum and IT racketeers. We call on all other IT companies to keep on fighting and not give up. Only then will it be possible to get rid of the patent parasites once and for all,” said Kaspersky.

It’s not often the word ‘scum’ makes an appearance in a corporate press release.

So why did so many others give up even when the chances of success were reasonable, more so if they’d co-operated? The answer seems to have something to do with the complexity of co-ordinating lawyers and arguments across so many companies in a court system that requires clarity and speed or response. Kaspersky’s counsel said as much:

“The process was difficult to manage for different reasons: Firstly, many co-defendants had their own opinion so it was hard to coordinate the case on the defendant side and secondly, the troll’s patents are very abstract and the first fight to be won is that about terms and claim constructions,” said Kaspersky’s chief IP counsel, Nadia Kashchenko.

The fact that trolls often file in Texas, a state which processes suits at speed, doesn’t help matters, she said.

But you could argue that the trolls are not to blame for taking advantage of a system that regularly entertains sometimes quite trivial patent claims from and between the industry’s largest vendors. Too many use the system as a business tactic and sometimes accept paying license fees as just part of the business model. The trolls stand out because all they do is pursue patent claims. But are the numerous battles between large firms really any more principled just because they also make products sold to flesh and blood customers?

Lodsys is not the only firm with patent lawyers that spend their time scouring files looking for work. As perverse as it sounds big firms are happy to pay out to the occasional Lodsys if it preserves a system that can be mighty useful at other times.

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