The conversation starts the usual way. Business owner comes in to talk about a patent predicament. Usually with a cease and desist letter in hand, the business owner has discovered that there is a patent out there that covers some feature of their product or service and the business owner is mad. This patent is "stifling innovation." Or to quote Kent Walker General Counsel of Google on Google's own patent predicament, "patents are Gumming up innovation."
The mandatory non-disclosure and confidentiality agreements are signed before the real conversation begins. The business owner never looked into patents when they started their new internet or software juggernaut. Patents are boring and hard to read. The process of building the company was hard enough, there was no time to dig into patents, there were products to release, investors to find, customers to sell to, accountants to meet, Tweets to write, conferences to go to. Now the business owner is mad that some "troll" is coming along and trying to extort money from their hard work. Oh, and here's a copy of my EULA that has language protecting the company's intellectual property. Make this go away. Then comes the phrase I always wait for, "THIS ISN'T FAIR."
Let the hunt begin - that quest for prior art that will kill off the patent that has become the fly in the ointment of business growth, the patent that is stifling innovation.
If you want to hear how this conversation usually goes down across the intellectual property landscape, the check out the latest podcast at This Is My Next. At around the 50 minute mark the conversation turns to patents, Google's pouting about how it's not fair that the guys who own patents are coming after Android and the rest of the technology patent wars. Joshua Topolsky and Nilay Patel go at it. Imagine Joshua Topolsky as the disgruntled business owner and Nilay Patel as the patent attorney (he really is a patent attorney) reasoning with his client. It's an anecdote to all the patents are terrible patents are stifling innovation vitriol out there. The patent spat is enlightening and rest of the podcast is worth a listen too.