Is Soverain Software a patent troll? Yes

I was reading about the US Supreme Court declining to hear Soverain v. Newegg when I saw someone ask if Soverain Software was a patent troll.

I started with Wikipedia’s article on Soverain Software. I’m a big Wikipedia fan, but articles about little-known companies run the risk of getting more attention from the company’s friends than from the wider Wikipedia community, so I decided to verify the statements. The article says:

Soverain’s enterprise software product Transact has been in use for nearly 18 years, and has been used by over 1,000 customers in over 25 countries, including companies such as Time-Warner, AT&T, Sony, Disney, BusinessWeek and Reuters.

This made me raise two eyebrows. The left one because “software product” could be a weasel word for patent licences, then the right one because those numbers are imprecise and written in a promotional, un-Wikipedia style. I check the source, and it’s a Gene Quinn article on IP Watchdog. Now, I read Gene’s writings sometimes, and there can be useful pointers in there, but he’s very pro-patent. I wouldn’t rely on him to check figures which are being used to justify the actions of someone asserting their patent rights.

So I go to Soverain Software’s own website. They seem to focus more on their patents than on their software, but let’s not jump to conclusions. I decide to check archive.com, to see what their website looked like 18 years ago when people started using their software. Oh. The soverain.com website didn’t exist 18 years ago. It only exists since September 2003, and until December 2003 it just displayed an “under construction” image. Ok, slow start for a pioneering e-commerce innovator, but let’s keep looking.

In January 2004 they put text and images on their website, and here’s what the intro paragraph says: “Soverain’s products have been deployed to customers in over 25 countries globally“. Hmm, same number, and note how their statements from 2014 and 2004 both use the past tense.

Some more searching leads me to Amazon’s testimony at a 2006 US Congressional subcommittee on the topic “Patent trolls: fact or fiction?“:

And, last year, for $40 million, we settled with the owner of a host of E-commerce patents, nearly two dozen of which were purchased for less than $2 million. Soverain had alleged that a few of these patents tread on our use of the virtual shopping cart and other features on our Web site.

In 2007, Amazon was on Soverain Software’s list of “licensees”. I wonder if the others on the list were also targets of infringement allegations (the others were FTD.com, Inc., Gap, Inc., Intershop Communications, Inc., and Johnson & Johnson).

So where did Soverain buy these patents? They bought them in 2003 from Divine, Inc., who went broke after trying to license patents they’d bought in 2001 from Open Market, which as an e-commerce company that went broke when the dot-com bubble burst.

But, is Soverain Software a software company? Their website boasted a version 5 back in 2004, then 6, then 6.5, now it’s version 9. That makes it look like someone’s developing software, right? Ok, I’m convinced! I’ll buy it! Oh. Their products and services pages mention no prices, no phone number, no email address… Wait a second! This pioneering e-commerce company’s products can’t be bought via their website!? Of course, their patents page has link for IP Inquiries, with an address and email. But their software products and services pages don’t. Why didn’t I notice that an hour ago!? I could have skipped writing this article. Well, at least I got to prove to myself that I was right to be sceptical of Gene Quinn’s figures.

Case closed. Soverain Software is not a software company. They don’t make any effort to sell software. They are a company that bought patents at rock bottom prices during bankruptcy and has spent ten years using these to attack software and web service companies. That’s a patent troll, clear as day.

Annex

I had one last piece of evidence, but I put it aside because I don’t know how to confirm it. When Soverain Software (unsuccessfully) petitioned the US Supreme Court to review the Soverain v. Newegg ruling, the parties submitted amicus briefs (as did three third-parties). In Newegg’s brief, they say:

In 2001, Open Market, unable to succeed, sold its assets to Divine, Inc. (“Divine”), which, despite its efforts to license the patents-in-suit itself, went out of business and filed for bankruptcy. A1854-55, A13002. Petitioner’s limited liability corporation was then specifically created to acquire the Open Market assets from Divine in 2003, including all rights to the patents-in-suit and the Transact software product. A1822.

Petitioner generates tens of millions of dollars in income solely through patent litigation settlements and some de minimis residual maintenance and service fees from a few legacy Transact customers that Open Market originally licensed. A1828-30, A1848-50, A1911-12. Petitioner has not licensed a single new Transact customer. A1853.

Despite the source being biased, I find this credible because lying to the Supreme Court in an amicus brief is not smart. But I put it aside because I don’t know where to check those “A1853″ references. Anyone?