Before Filing Patent Infringement Lawsuit, Please Make Sure The Patent In Question Has Been Granted

from the premature-litigation dept

Fri, Oct 19th 2007 3:40am — Mike Masnick

Apparently some patent holders simply can't wait to get their lawsuits going. A shell company that appears to not do anything went and sued Cisco on Tuesday of this week for violating its patent. There was just one little problem. The patent wasn't granted until Wednesday, so the case was quickly dismissed. Of course, the company refiled with a new date, but it's still pretty amusing that the patent holder was so anxious to get the lawsuit going (and shows that the company isn't particularly interested in trying to license the technology -- suing is apparently much more lucrative). Perhaps they want to make sure the lawsuit gets in before the Supreme Court (or Congress) crack down on ridiculous patent abuse.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: patents
Companies: cisco

16 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Chris, 19 Oct 2007 @ 4:45am

Wait a minute...
INAL, but wouldn't Cisco's work that now violates this patent be considered prior art if it was in place BEFORE the patent was granted?
[ link to this | view in thread ]
Judicious Distance, 19 Oct 2007 @ 4:56am

Let em sue
Patents are about ideas, the process suppresses the deep ones (a physicist I know says) and my own book of them immediately is useless because the ease of which others can lift and spin then sue me, unless I play patent games instead of idea games.

Do not make securing a valid patent harder, make it easier, and make a prototype go with the application, working.

The "renaissance" is being held back till 2012 so everyone can go through the multi-year infringement legal process once before applying. Just for "Practice".
[ link to this | view in thread ]
Nathan, 19 Oct 2007 @ 5:07am

The facts are clear - the VAST majority of life-changing (and economy changing) innovations come from individuals and small companies. Patents are the great equalizer and allow individuals and small businesses to compete - that's why large corporations secretly hate them and have spent hundreds of millions to attempt to discredit them and to lobby Congress to ruin the US patent system. The patent system gets in the way of large corporations, such as Wal-Mart, Microsoft, Intel, Cisco, et al., from ripping off the small guy. These are simply the facts - nothing more.
[ link to this | view in thread ]
Chronno S. Trigger, 19 Oct 2007 @ 5:15am

Re:
"The patent system gets in the way of large corporations, such as Wal-Mart, Microsoft, Intel, Cisco, et al., from ripping off the small guy. These are simply the facts - nothing more"

Yeah I'm sure Cisco would back you up on that claim. /sarcasm

The problem that we are seeing, that you don't seem to see, is that the little guy, in this case ESN, is using an obviously invalid patent to sue the big guy, Cisco, for a product that was there before the patent was granted.
[ link to this | view in thread ]
kneeL, 19 Oct 2007 @ 5:44am

System is flawed
Someone saying the patent system has been created for helping the little guy, maybe you were correct in how it was CONCEIVED to be. For example, the Family Court system. Was created to help mothers.
The system over the past 50 years though, has/had become flawed, allowing mean mothers to steal children from good fathers and take all their money (can you tell I am in the middle of a custody battle? :)

Anyway the point is, the above poster is correct in maybe why the system was created and invented, but it has been bastardized from what it was created to do, over the years, and now is just used to exploit, deceive, and suck money from legitimate idea holders. It is getting to be a worthless system altogether if they don't change it soon.
[ link to this | view in thread ]
Alex (profile), 19 Oct 2007 @ 6:05am

Re: Wait a minute...
Cisco's work would only be prior art if it predated the "date of invention" claimed on the patent. This would be some time before the patent was granted. [In a first-to-file system, it would have to be before the patent application was made, a later date than any claim of invention, making bad patents easier to bust.]
[ link to this | view in thread ]
angry dude, 19 Oct 2007 @ 6:22am

Mike is patently ignorant, as usual
Hey, Mikey,

Why do you keep writing all kinds of nonsense about patents ?

You don't know shit fella, just shut up and listen

The lawsuit in question was filed so early apparently to avoid Cisco filing a Declaratory Judgement lawsuit against patent holder in any other place other than Texas
This tactics apparently didn;t work in this case cause Cisco still filed DJ in Connecticut, as far as I know
It's a dog-eat-dog world out there by corporate design, young fella
Cisco is a known patent thief and predator, stealing technologies right and left from small patent holders - independent inventors and startups
Just like they stole 56-k modem technology from Dr. Townshend back in late 90s, and then dragged their feet in courts for years and years before paying a dime (if they ever paid anything , not sure about it)
And their chief legal councel - Mark Chandler is a big lying piece of corporate shit, BTW
Kepp up good work mikey, your big corporate sponsors must be happy
[ link to this | view in thread ]
Barrenwaste, 19 Oct 2007 @ 7:19am

Re:Re: Wait a minute....
And if people don't see how rediculous that is, they deserve to get swindled.

Now, excuse me while I go patent the wheel and fire. I'm in the money, I'm in the money...
[ link to this | view in thread ]
Mike, 19 Oct 2007 @ 7:22am

Isn't it strange?
Isn't it strange that republicans want to make it impossible to sue a doctor who cripples you (so called "tort reform"), but Bush threatened to veto any attempt to place limits on patent infringment litigation?
[ link to this | view in thread ]
Alex (profile), 19 Oct 2007 @ 7:28am

How ridiculous what is? Obviously there is going to be a delay between filing of a patent application and the application being granted or rejected, while it is being examined. The plaintiff clearly jumped the gun by suing before the patent was actually granted, but it is reasonable that the novelty of a patent should be based on the prior art in existence when the patent was originally filed, not that when the patent examiner gets round to making a decision.

Not that I know anything about the details of this particular patent case. If it follows the standard script for hi-tech patents, then the patent is bogus but this would be difficult to prove, and Cisco could well end up settling simply because that makes most business sense :(
[ link to this | view in thread ]
angry dude, 19 Oct 2007 @ 7:56am

idiots
Just read the original complaint, retards

http://www.patentlyo.com/patent/law/ESN.Complaint.pdf
[ link to this | view in thread ]
nedu, 19 Oct 2007 @ 9:24am

Court clerk (allegedly) alters docket
The real news is in the followup post: “ESN Convinces EDTX Court Clerk To Alter Documents To Try To Manufacture Subject Matter Jurisdiction Where None Existed”

IF true, then I believe that Cisco should contact the U.S. Attorneys office in Texas. Of course, Cisco may know something about corruption in the E.D. of Texas that I don't. Maybe they should just contact the Attorney-General in D.C.
[ link to this | view in thread ]
Mike (profile), 19 Oct 2007 @ 5:59pm

Re: Mike is patently ignorant, as usual
Angry dude,

Always great to hear from you though, I still find it amusing that you come by and insult us and when we point out where you're wrong or ask you directions you clam up.

I've already pointed out to you that we don't do advocacy for any of our clients, we don't do any work on patent stuff right now and most of our clients are small companies, not the large tech companies who want patent reform. I've already asked you to refrain from making false and defamatory statements implying otherwise. And what do you do? You repeat those same false statements, along with insults and profane language.

In the meantime, as for the specifics of the case at hand, I like how you don't respond to the main point: which is that you cannot file a patent infringement lawsuit when there is no patent.

I also like how you insult companies you don't like, calling them "thieves" when they're accused of infringing, not stealing.

As for calling someone a liar, that's seem rather low when we've caught you lying in the past about your own patents (claiming you had one, and then many months later admitting that you had only just received one), and when we confronted you about it, you just called us more names. You've also lied repeatedly in saying that we get paid for advocacy when we do not. You've also lied repeatedly in claiming that we take money from companies to promote a position on patents, which we do not. In fact, as far as I know, we have yet to have a single client who agrees with our position on patents and we have publicly written negative things about our clients when they've done things we disagree with, especially on the patent front.

You know this because we've made it clear to you in the past. Yet, you continue to lie and assert that are motives are different.

For you to then call someone else a liar with no proof whatsoever is rather sad.

Come back when you learn how to actually back up a statement so that maybe someone out there will take you seriously.
[ link to this | view in thread ]
angry dude, 19 Oct 2007 @ 6:19pm

thanks for invitation, but no, thanks
Mike said:
"Come back when you learn how to actually back up a statement so that maybe someone out there will take you seriously."

Thanks, but no thanks, Mike....

I will back up my statements with documents and court depositions of key witnesses in some other place called "jury trial", not here for sure
Just venting out here, Mike, nothing personal
[ link to this | view in thread ]
Mike (profile), 19 Oct 2007 @ 6:38pm

Re: thanks for invitation, but no, thanks

I will back up my statements with documents and court depositions of key witnesses in some other place called "jury trial", not here for sure

So, instead you'll just defame me and others and when we point out you're wrong, refuse to apologize?

Very professional of you.
[ link to this | view in thread ]
angry dude, 19 Oct 2007 @ 6:54pm

Re: Re: thanks for invitation, but no, thanks
Aren't we touchy today ? :)

Relax, dude, I can even apologize for calling you a corporate stooge - I have no hard evidence on you indeed..
I do have hard evidence on "others"
Just remember, Mike, that juries have all the facts before they can reach a decision

Back to the subject of your article - Cisco...
He-He-He...
[ link to this | view in thread ]