My Software Patent Troll Veto ( BrightEdge )

 

I love patents – I think allowing true inventors some protection for their efforts is a wonderful thing

e.g. Cats Eyes were an amazing invention that I am glad were so widely adopted in the UK.

I am not even totally against software or business process patents – I think it is possible to come up with something which is more innovative than “do it on a computer” or “automate it more” patents.

e.g. PageRank

I am on the fence regarding the Apple/Samsung wars with design patents & FRAND patents. I own both Android & iOS devices.

Patents also have some “social proof” value from a marketing perspective and are interesting from a research perspective (for us search/marketing geeks).

However just the thought of needing to register “incremental” & “derivative” patents (which are the vast majority of software patents) purely for defensive, M.A.D. (mutually assured destruction) purposes is a huge drain on resources for startups & stifles innovation. If things go legal even more so.

Fred Wilson has written many posts on the effects of software patents on startups and there is a great community on Stack Exchange aimed at invalidating software patents with prior art.

On balance, whilst I feel there can be some merit to software patents, they do more harm than good.

As Fred says:-

I believe that software patents should not exist. They are a tax on innovation. And software is closer to media than it is to hardware. Patenting software is like patenting music.

Whatever your flavor of online marketing, SEO, direct response, “growth hacking” etc, the majority of “new” ideas are incremental, built on the shoulders of others and the rest is design & execution.

Yesterday a tools provider in the SEO space decided to use some of their many patents “offensively”, and it filled me with anger & rage. Or it probably would have done if my emotional state was anywhere close to normal/balanced (more on that soon). Suffice it to say it has motivated me to write something.

I have decided the best way to deal with patent trolls and companies in the online marketing space who use trivial patents in the marketing space offensively is to ostracize them.

ostracize definition

It seems Google no longer credits anyone for definitions https://www.google.com/search?q=ostracized+definition

How To Ostracize A Startup

Remove Their Voice

  • Don’t follow them or their employees on social media
  • Don’t read their blog
  • Unsubscribe from their mailing lists
  • Leave their marketing email in your spam folder rather than rescue it
  • Avoid their guest posts
  • Don’t link to them in blog posts, reviews etc
  • Don’t recommend them to friends/colleagues
  • Add them to an “ostracize” list & tell people why
  • Don’t attend any conference where they are a primary sponsor or speaker
  • Don’t accept them as advertisers
  • Block their corporate IP Address
  • Add their company name to badword lists for comment spam

Remove Their Oxygen

  • Don’t use their software / service directly (it would certainly be a material reason to break long-term contracts)
  • Express displeasure to your service provider
  • Don’t work as a consultant for any companies using their software / service
  • Be extremely wary of using any software / service that has been funded by the same investors
  • Be wary of accepting investment from the tainted investors
  • Don’t work for companies that have the same investors
  • Remove access to data from your own APIs
  • Remove integration of data from their APIs
  • Remove access to use of your own tools (autoresponder etc)

This might seem hard on VCs, but ultimately they are shareholders and should have a voice of restraint in taking such action. If data suggests they might be encouraging patent wars then startups connected to them will suffer.

Support Competitors

  • Follow them & their employees on social media
  • Read their blog
  • Join their mailing lists
  • Promote their guest posts
  • Link to them in blog posts, reviews etc
  • Recommend competitors to friends/colleagues
  • Attend any conference where they are a primary sponsor or speaker
  • Give them cheap advertising deals

From now on I will take appropriate “ostracization” steps against startups I believe have in some way “crossed a line”. The line is as poorly defined and biased as Google’s for paid links.

Startups Ostracized

BrightEdge 6th March 2014

It seems BrightEdge is taking aggressive action against SearchMetrics as reported by Search Engine Land

Patents

Correlating web page visits and conversions with external references US 8577863 B2

Opportunity identification and forecasting for search engine optimization US 8478700 B2

Operationalizing search engine optimization US 8478746 B2

Operationalizing search engine optimization US 8135706 B2

I have had a brief look at the patents

They are all based around

  • Scraping Search Results
  • Attributing conversions to keywords used in search

Search Engine Optimization specialists have used various data collection methods including scraping Google’s results pages for over a decade, e.g. Web Position Gold. It intrigues me that someone would patent something that relies on breaking Google’s terms of service. All Aaron Swartz was doing when arrested was scraping JSTOR – effectively a similar terms of service violation.
I know Web Position Gold 2 was available in 2002 – my history of it and similar tools doesn’t go back any further.

Attribution of exact keyword used for search to conversions (early hack) was certainly possible in Google Analytics in 2006, and I can’t remember what kind of attribution to ecommerce and conversion goals were possible in 2005/2006. Once you had data you could also export it and use it in Excel.

Thus BrightEdge “innovation” in these patents really isn’t anything new. What they may have done well is implementation of an efficient toolset to do tasks that were already being done.

From Crunchbase they have the following investors – all of these are now partially guilty by association. Just because Insight Venture Partners also invested in Twitter who pioneered the “Innovators Patent Agreement” back in 2012 doesn’t give them a “get out of jail” card. All it takes is one bad apple.

TOTAL $61.9M
FUNDING TOTAL $61.9M
Series A, 8/2008 1
Illuminate Ventures
Series B, 3/2010 2
Illuminate Ventures
Battery Ventures
Altos Ventures
$6.5M
Series C, 3/2012 3
Intel Capital
Battery Ventures
Altos Ventures
Illuminate Ventures
$12.6M
Series D, 6/2013 4
Insight Venture Partners
Intel Capital
Battery Ventures
Altos Ventures
Illuminate Ventures
$42.8M

Read more: http://www.crunchbase.com/company/brightedge#ixzz2vETPURUQ

Apparently 20,000+ SEOs use their software and over 8.000 clients, so whilst I can’t cancel a current software license this action could have a negative effect on my future income, and I am happy with that decision.
As an innovator within the SEO and marketing space I certainly wouldn’t want to be “exposed” to their proprietary technology.

Russ (CTO of Virante) has asked them to stop trying to sell him stuff because he doesn’t want to pay them money that isn’t earmarked for future innovation.

Hopefully Bill will do a more detailed analysis of the search patents but ultimately I don’t care if they have some potential level of merit in a court of law. Their existing patents have been used offensively and the ideas within the patents are hardly earth shattering.

These aren’t BrightEdge’s only patent applications and if everyone in online marketing patented everything and then went on the legal attack there would be a lot less innovation and sharing.

I don’t class BrightEdge as a “patent troll” – they make stuff, but I don’t support incremental software patents being used in an offensive manner.

Future Additions & Updates

This is intended to be a dynamic list of companies I believe are behaving badly & I feel is an appropriate response to software patent trolls and companies using trivial & incremental software patents in an offensive manner. It is possible to be removed from the list by taking appropriate retroactive & sincere measures.
Ostracization measures undertaken by their nature will be incremental but in many cases permanent. Who can predict what kind of butterfly effect one voice can have?

I know I have been absent and a little disconnected over the last couple of years so I may have missed similar situations and companies who should be added to this list. Please let me know in the comments.

 

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Comments

  1. says

    Hey, Andy! A pleasure to see you at your keyboard!
    First disbelief, then rage were my reactions to the news, too – some directed at BrightEdge, a fair share at the idiots that grant such patents to begin with.
    Afraid I differ with you on one thing, though. I DO see BrightEdge as a patent troll in this instance. They know damned well they’ve done nothing innovative in that regard. They just put a different wrapper on the package.

    • says

      I think our opinions on their level of innovation are aligned.

      I tend to think of patent trolls as companies that just have a portfolio of patents which they try to leverage who don’t do anything besides that.

      So I wouldn’t class Apple as a troll with a patent for round corners, even though I think the patent is pretty daft.

      I don’t class Technicolor/Thompson and Fraunhofer as a patent troll though I think they are greedy with their mp3 licensing
      http://mp3licensing.com/royalty/
      e.g.
      if you make $100,000 a year and publish a podcast using mp3s, you should be paying them $2000+ a year
      or
      If you create some music software and want to encode mp3s, you might have to pay them $5 per unit sold – that was probably the only factor that prevented a 7 figure deal for me 13 years back.

      MP3 will be free of patents in 2017

      I have no problems with Dolby making lots of money from licensing even though that was a similar situation (I have a brother who now works for them too).

      What I would love to see is a requirement that at some due diligence phase in the patent proceedings, any potential companies who are thought to be in the same business space are proactively contacted for comment and potential objection.
      I also think a patent should have to go through a reevaluation by the patent offices with opportunity for 3rd party objections before any legal prosecution can be started.

  2. says

    Hey Andy!

    Good to see you breaking radio silence.

    I’m more hard line than you. I’m barely surprised and I’ve run out of outrage at patent abuse and the patent Office’s willing collusion with it. I don’t think patents are valueless on the whole, but in tech and software, the harm they do so far vastly outweighs the good.

    This isn’t limited to patents either, trade marks are being used in the same way by the same actors now as well.

    • says

      I understand it from lots of directions.

      I just mentioned mp3 in my comment to Doc
      http://andybeard.eu/3895/patent-trolls.html#comment-454468

      An mp3 encoder could be in hardware, some kind of programmable ROM, or in software.

      It is an ISO standard so the technical details are all public

      2 large companies have been making a fair chunk of change licensing encoding and decoding and file use.

      They are charging far more than the much more modern h264

      If there wasn’t the patents, they might not be able to charge anything for the software versions or for media.

      I always thought they were greedy and in many ways that stifled innovation – I would have welcomed licensing similar to h264 when it most concerned me, but I never expected to pay nothing.

  3. Rob says

    Wow – good to see you Andy! I did a double take when I saw the email notification on the post! :0)

  4. Terry Van Horne says

    The scraping patent is kinda like a hammer company patenting driving a nail and going after carpenters. Ludicrous A. That is patentable B. that they are now suing another SERP scraper… for things that have been done before Web Position…. they were just the first to monetize it. I’m sure every web developer of the era had a go at that ;-)

    • says

      I had websites as far back as maybe 97 but really wasn’t up on SEO until 2005. A few minutes googling found me a review of Web Position Gold 2 from 2002 which I felt was sufficient proof that even then it was fairly deep rooted.

      My initial research suggests BrightEdge are more integrated with the Enterprise SAAS scene than with SEOs other than a couple of people. The majority of their employees seem to have no interest in SEO based on Twitter data.

      It is interesting that in the old days a slow loading widget (and similar misdemeanors) from someone like MyBlogLog could cause an uproar from tons of bloggers, but in this situation so far I have seen only 3 other voices raised in a blog post. SEL and Russ from Virante, and later a post from SEW.

  5. says

    Hi Andy

    Now, only this was left for SEOs to deal with. I am wondering why such kind of patents get approved by anyone. Patent process is total shamble from the eyes of small time SEO and other person. For they just can’t fight back such a tyrannical (not in certain cases where a person is granted patents for really unique innovation etc.) structure for its cost and other factors.

    I think this profession will soon become a game of biggies like Google, Microsoft etc. who will do SEO and algo wranglings on their ownself.

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