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Judge Bans The Term 'Patent Troll' -- And The History Of Patent Sharking...

from the not-in-my-courtroom dept

Tue, Oct 16th 2007 2:43am — Mike Masnick

As I've mentioned in the past, I'm no fan of the phrase "patent trolls," though it sometimes does serve a useful purpose. It does seem unnecessarily biasing -- and without a clear definition many people jump to the use of the phrase when it's really not appropriate. Thus, it should come as little surprise to hear that a judge (in East Texas, of course) has told a defendant he may not refer to the plaintiff suing him as a "patent troll." This actually is quite reasonable for a variety of reasons. Obviously, the term has extremely negative connotations without a clear definition, opening it up to serious misuse. Also, there isn't anything illegal about being a patent troll anyway (yet). It is bad for innovation and it's bad for the patent system -- but the reason such actions are so popular is that, for the most part, they are perfectly (if ridiculously) legal. With that in mind, focusing on name calling clearly isn't the best way to get out of the lawsuit. Still, it is rather amusing that things would reach such a level that this would even merit a judge ruling on the term.

Speaking of what to call folks who buy up dormant patents and then use them to sue actual practitioners, a friend just sent me a fascinating research paper looking at an eerie parallel to patent fights in the 19th century, when so-called "patent sharks" (seriously) bought up a bunch of dormant patents on farm equipment and then went around suing farmers who were unknowingly infringing. Yes, the similarities are striking. In fact, the parallels go even further. Right before this happened, there had been some changes in what the patent office considered patentable (just as business models and software have only recently been considered patentable). Also, other industries outside the farm equipment industry fought back to prevent any real patent reform from being enacted -- just as others outside the tech industry are now fighting against today's patent reform. Based on all of this, the paper recommends that history teaches us the way to get rid of patent trolls is the same way that the government got rid of patent sharks: get rid of the patents they prey on -- meaning (in this case) getting rid of software and business model patents.

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Filed Under: east texas, patent troll

22 Comments

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Mike F.M, 16 Oct 2007 @ 3:58am

Fair enough
The judge no wanting the use of that word is fair enough.

Although, I do disagree on one point. About there not being a clear definition of what a patent troll is.

For example:

http://en.wikipedia.org/wiki/Patent_troll

This gives a very clear picture of what is considered to be a patent troll, and is the first place a large percentage of people would look for such a definition.

I'm not going into the whole Wikipedia debate, but if it is drawn up this clearly on such a mass-used site, I would consider that a definition.
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CHRIS, 16 Oct 2007 @ 4:00am

How is this not a blatent violation of freedom of speech? It's not liable, and the defendant is simply refeering to the prosecuter by a slang terminolgy. Unprofessional certianly, but to outright restrict the usage of the term has to be illegal in itself. If such actions are permitted than the RDC calling John Kerry a "Flip-flopper" should have been banned as well by a judge, as the terminology does seem unnecessarily biasing -- and without a clear definition that has extremely negative connotations without a clear definition, opening it up to serious misuse.
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Anonymous Coward, 16 Oct 2007 @ 4:23am

That paper was actually readable, amazing. Don't agree with it all, but it was an interesting parallel.
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Craig, 16 Oct 2007 @ 4:25am

OK...fine
"Patent hobgoblin" and "patent weenie" are still fair game, no?
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Wolfger, 16 Oct 2007 @ 5:00am

Re: OK...fine
How about "patent-flinging monkey"? I think it's a much more apt analogy.
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Anonymous Coward, 16 Oct 2007 @ 5:14am

What about cheese-eating patent monkey?
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Jeff, 16 Oct 2007 @ 5:43am

To Chris
Sorry Chris, but Freedom of Speech is not applicable in a court of law. Judges can, and frequently do, impose restrictions on what attys and the various parties say and how they say it, especially if what they are saying causes unrest and disorder in the court room. As for what other judges required in other court room, it doesn't matter in this case. If the judge considered "patent troll" to be disruptive, it was his right..and even duty to forbid its use in the court room. And you are correct, the term may not be libel, but again... Judge = God...his court, his rules (to a point).
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RandomThoughts, 16 Oct 2007 @ 5:46am

For someone who isn't a fan of the term, you sure use it a lot.

That being said, a patent on a business model is not a good idea. Software probably could be covered via copyright, but not sure if that improves anything.
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Anonymous Coward, 16 Oct 2007 @ 5:48am

Number 2. Liable? How about libel?
seriously.

oops, did I just infringe on your right to be illiterate?
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Copyright, 16 Oct 2007 @ 5:51am

Cease and Desist order
Please cease and desist from using my copyrighted (c) term "Patent Troll" in all further emails, blog entries and verbal and non-verbal communications. Further use will incur a $10,000 fine per use.

Thank you,
Mr. Shark, ESQ
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Strofcon, 16 Oct 2007 @ 6:49am

Re: Fair enough
Also wanting to avoid the whole Wikipedia debate, I think it's worth mentioning that no matter how good a reference we consider Wikipedia to be, it is not a good reference to a judge or the general public. First, the judge won't consider it a professional, reliable source, regardless of how legitimate it may actually be. Second, though Wikipedia's traffic is immense, I'm not sure it's safe to say that "a large percentage of people" would look there for the definition, especially considering the non-technical professional world who would, much like the judge, likely consider Wikipedia an unreliable or false source.

In short, Wikipedia's definitions are rarely considered "official" documentation of anything, and thus, are unfortunately unlikely to be taken seriously in a courtroom.
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angry dude, 16 Oct 2007 @ 6:50am

Not that simple, dude
Hey, Mikey,

I almost forgot that this is techdirt when I started to read your post - the first part is entirely reasonable.
True, the term "patent troll" is being applied to pretty much each and every non-manufactoring plaintiff in patent cases.
That means that everyone without a manufactoring facility in China is a troll, or will become a troll shortly when his domestic manufactoring business becomes unprofitable
(I am talking about high-tech here, you know "Proudly designed by Apple in California, Made in China" ipoddish type of things...)
Besides, the man who came up with this "patent troll" nonsense, Peter Detkin, is now a troll himself, a megatroll, I should say...

But the second part of your post speaks volumes about your ignorance...
Dude, I am no fan of patents on "one-click" etc. but you just can't eliminate "software" patents because they are impossible to define.
Any definition will just lead to an enourmous legal loophole taking down a huge chunk of (hardware) semiconductor patents and countless other fields.
It is equivalent to the complete distruction of the patent system.

Just read this FAQ:
http://www.ipjur.com/01.php3

This is as close as you can get to the truth.
And it was written by a real lawyer, BTW, not a techdirt junky...
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chris (profile), 16 Oct 2007 @ 7:07am

the legal basis for the term troll
in the case "gruff, gruff, and gruff vs. troll" the term troll was clearly defined as a someone who "impedes the progress of another for the sole purpose of profit".

for those of you unfamiliar with the case, the gruff brothers (tree of them) mr. troll sought to exact a toll for crossing a bridge that for which his property rights were unclear.

not only was the patent case thrown out of court, mr troll was also thrown off his bridge and into the creek by the eldest brother gruff.
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Overcast, 16 Oct 2007 @ 7:29am

Isn't it wonderful to see more and more speech banned?

Is 'Judicial Troll' a legit term now?
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Anonymous Coward, 16 Oct 2007 @ 8:15am

The Patent Sharks haven't been around since the Patent Jets muscled them out.
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Joe Smith, 16 Oct 2007 @ 9:06am

Re: Not that simple, dude
Come on angry dude: that article has clangers like:

"On the other hand, the primary source of value of a computer program is its behaviour or functionality, not its text."

The primary source of value in a program like Excel or Word or any accounting package is not any fancy algorithms that were invented to make it work but in the grunt work of generating millions of lines of relatively error free code that someone took the time to write.

If we are going to have a real debate about the extent to which algorithms or programming ideas should be patentable, if at all, then we are going to need something much much better than the article you link to.

On the main point raised by the Techdirt article:

I wonder if the Plaintiff or its lawyers have been referring (as Mr. Riley and angry dude routinely do in these cases) to the Defendant as a "thief" who has "stolen" the Plaintiff's property. If so, then the Defendants should be permitted, if they so choose, to use the appropriate reciprocal term and refer to the Plaintiff and its lawyers as "extortionists" who are trying to "shakedown" productive, successful companies.
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angry dude, 16 Oct 2007 @ 9:24am

Sorry Joe, you are not qualified in this area
Joe wrote:

"The primary source of value in a program like Excel or Word or any accounting package is not any fancy algorithms that were invented to make it work but in the grunt work of generating millions of lines of relatively error free code that someone took the time to write."

Come on, Joe,
Don't you realize that you simply can't write a crap like MSWord without someone first doing all the necessary preparatory work, a lot of it,,
like coming up with all those sorting and hashing algorithms, linked lists, object oriented programming, compilers, GUI elements, etc .etc. etvc.
Who did all of this work ? MShit and Billy Gates ?
Guess not
They only hired a bunch of code monkeys to make them a few billions
Better yet, expoit all those open-source junkies to write your valuable millions of junk code for free, as IBM does
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Tin Ear, 16 Oct 2007 @ 10:09am

Re:
Facts straight first. Libel is written, slander is vocal.

If the judge was tired of hearing the term 'patent troll' in his courtroom he can order the people involved to stop using the 'slanderous' term in his presence.
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JoeSmith, 16 Oct 2007 @ 10:37am

Re: Sorry Joe, you are not qualified in this area
Don't you realize that you simply can't write a crap like MSWord without someone first doing all the necessary preparatory work, a lot of it,,
like coming up with all those sorting and hashing algorithms, linked lists, object oriented programming, compilers, GUI elements, etc .etc. etvc.

I know that there are a whole body of standard programming tools that are used, which are all old (and many were old before I started programming in 1973) and were in the public domain from the start. To say that the value resides in those standard building blocks and not in the finished product is a bit like saying that value in Shakespeare's MacBeth is in the phrase "damn spot" and not in the work as a whole.
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Chuck Norris' Enemy (deceased), 16 Oct 2007 @ 12:43pm

What is wrong with trolls
I always thought trolls were cute and their hair was so fun to play with.
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Jim Nourse, 17 Oct 2007 @ 7:33am

"troll" is too mild
I like what Joe stated. That these monsters are nothing more than extortionists on the same par with the old big-city Mafiosa's of the past (and some in the present) that would terrorize ligitimate small businesses by demanding protection money. The only difference is that, instead of hiding behind corrupt city governments, these hide behind a massive corrupt legal system perpetrated by thousand of filty corrupt lawyers who stand to gain even more from the victims of there extortion.
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patent troll, 17 Oct 2007 @ 8:11am

Re:
Oh yeah

I am a monster with a big hairy dick

Bend over, little jim, i'm gonna f*** your remaining little brains out
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