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Patent Holders Trying To Drag 3rd Parties Into Patent Disputes

from the troll-expansion dept

Fri, Aug 12th 2011 4:07am — Mike Masnick

If you thought bogus patent lawsuits were crazy now, just wait and see what might happen if a court rules the way two companies are arguing they should. The EFF has filed an amicus brief in two cases in which patent holders are arguing that they can drag third parties into patent lawsuits if those third parties do one part of a claim, while someone else does the rest. If you think about this, and are aware of current patent lawsuits, this is a horrifying prospect. Think Lodsys on steroids, where individual consumers could be sued for patent infringement, merely for making use of what a service provider offers. For example, in one of the two cases, Akamai is claiming patent infringement, and the issue is one claim in the patent. All of the steps of that one claim are handled by a third party... except for "tagging," which is done by users. If Akamai's argument holds, then users of Limelight's services who do "tagging" could be liable for patent infringement without having any idea at all that they're at risk, and without them even violating the vast majority of what's claimed in the patent.

While the patent holders are claiming that without this the patents would be unenforceable, the EFF filing reasonably argues that the problem is that the patents were drafted poorly, and patents should make clear that when they list out a series of steps, those steps are performed by a single party. The arguments by the patent holders would put almost everyone at risk of being directly liable for patent infringement without them realizing it. We see broad patent claims asserted against various internet companies all the time. Imagine if every user of those services could suddenly be sued for infringement as well, just because clicking on a button, adding a tag or whatever, helped "infringe" on the patent in question in combination with the service provider?

As the filing notes, there is simply no social benefit to imposing liability on such third party users. They're hardly in a position to stop the infringement (let alone even know that it's going on). All they're doing is using a service that is offered to them.

Not surprisingly, one of the companies making this argument, McKesson, is using copyright law to back this fundamentally new interpretation of patent law. Specifically, McKesson cites the Supreme Court's terrible Grokster decision on third party liability, and is trying to extend it to patent law. Of course, McKesson does not even properly cite Grokster, falsely claiming that Grokster claims "a defendant's decision to profit from infringement 'while declining to exercise a right to stop or limit it'" makes one liable. That's simply not the Grokster rule at all. Grokster set out a specific set of criteria under which a third party would be liable, but "declining to exercise a right to stop or limit" is not nearly enough.

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Filed Under: infringement, patents, third parties
Companies: akamai, limelight, mckesson

26 Comments

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That Anonymous Coward (profile), 12 Aug 2011 @ 4:18am

It appears our greatest innovation is now finding new ways to use laws to sue each other.
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The Old Man in The Sea, 12 Aug 2011 @ 4:37am

Hand a man a rope and he'll try to hang everyone with it.
Modern Man - Doomed to extinction?

As has been said many times by many people - be very careful what you wish for.

They do say Summer is The Silly Season. I think it has now got to change to This Century is The Silly Season.

So many stories showing that when fools rule, foolishness follows.

Nothing against Jews or Moslems, but modern-day lawyers are making Rabbi's and Imam's look like complete tyros when it comes to extending law into every crooked corner of life.

It is starting to sound like the worst days of the Roman Empire (Nero and his ilk), Nazi Germany (Hilter and his ilk) and Communist Russia (Stalin and his ilk) all rolled into one.

Bring on 1984. The End is Nigh, The End is Nigh. (Nearer than you think)

Live Long and Prosper.
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Jose_X, 12 Aug 2011 @ 4:47am

So are they going to sue Mr. Prior Art?
when 90% of the claim repeats the state of the prior art
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Jose_X, 12 Aug 2011 @ 5:03am

The Founding Fathers
clearly intended for your friendly neighbor to be judged guilty of patent violation in order to protect that helpless inventor.

This is why the next propaganda film on American Inventors will not feature billion-dollar money men and their courtroom's load of lawyers working overtime and bribing in an effort to crush the protagonist inventor. Instead it will feature ordinary school kids "perhaps in your own backyard" hauled away by federal marshals for assembling a model airplane and other such contraband.

Bad boys bad boys.. What ya gonna do?
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Anonymous Coward, 12 Aug 2011 @ 5:14am

Why stop there? Why not go for 4th, 5th, 6th, Nth party liability?

The patent troll had the hard work of buying the patent, therefore it should be paid for each time anyone uses or even mentions anything related to the patent.

It's only fair.
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iptrolltracker, 12 Aug 2011 @ 5:22am

"reasonably argues that the problem is that the patents were drafted poorly,"

This is why, once again, the work that Article One Partners is doing is so valuable. You have to stop this nonsense at the lowest common denominator: the patent itself.

Disclaimer: I do not work for Article One. I think they have a brilliant idea and it speaks to the (one of the) heart(s) of the matter, which is poorly drafted patents.
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Kevin (PaxSkeptica) (profile), 12 Aug 2011 @ 5:39am

I keep coming back to this:
Nanolaw with Daughter
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anonymous, 12 Aug 2011 @ 5:57am

Re:
stop talking absolute crap, please!
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Some Other AC, 12 Aug 2011 @ 6:11am

Re: Re:
There was obvious sarcasm in the post(Anonymous Coward, Aug 12th, 2011 @ 5:14am). Was it crap? Yes. Was it meant seriously? Not likely. Not all ACs post in here to the benefit of corporate America.
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Anonymous Coward, 12 Aug 2011 @ 6:17am

Re: Re: Re:
I was merely poking fun at the absurdness of the situation by suggesting an even more absurd similar situation, with a side dish of sarcasm.

It was meant to be crappy. Most things that involve patents are, anyway.
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Howard the Duck, 12 Aug 2011 @ 6:29am

Patent,Trademark, Copyright, License
A 12 year old girl opens a lemonade stand, and uses a picture printed from a Google search of lemonade. The photo shows a bottle of Mike's next to a lemon. The girl sets up her stand, copying the layout from the Sunkist site, and using her parents Iphone, she advertises the stand hours on Craigs List. A sex offender sees the ad and comes by, the parents tell him to move on.
The police come and shut down her stand for not having a license, then discover the Mikes picture and the Craig's list ad and prosecute Mike's Hard Lemonade executives and her parents for child endangerment. It makes the local news. Mike's takes note and her parents are sued for trademark violations. Patent and copyright lawyers from Sunkist subpoena the parents for business process patents and copyright violations.The prosecutor decides that Craig's list should be criminally liable for endangering the 12 year old and goes after them as well, when they discover someone has commented about the 12 year old advertising with her parents account, the user is summoned to court to testify on computer fraud, hacking, and the parents are hauled off to jail. Later the user that commented arrested for contributory negligence. HTC is sued by Apple for no reason. HTC sues HP for no reason.
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The Devil's Coachman (profile), 12 Aug 2011 @ 6:35am

It's time to address the root of this problem!
The root of this problem, of course, is the lawyers. They all need to be beaten with iron bars, and then hung up in gibbets until the crows peck out their eyes. That should teach them the error of their ways. I'm just here to try and help.
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Howard the Duck, 12 Aug 2011 @ 6:41am

Re: Patent,Trademark, Copyright, License
Later, Google is sued by the world in a class action for suggesting "Obama" in a search using "Hope and Change".
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Anonymous Coward, 12 Aug 2011 @ 6:57am

Re: Re: Patent,Trademark, Copyright, License
You forgot that the FBI, CIA, NBA (what? they have a 3 letter acronym too) and the TSA were given special powers that allow them to arrest at will without a warrant. For the children!
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Skeptic, 12 Aug 2011 @ 7:22am

Re: So are they going to sue Mr. Prior Art?
That's not how claims work. You have to look at the claim in its totality to judge it. Everything is built on top of existing stuff, so no claim can be 100% new.

It's likely the 10% not in the prior art is the "non-obvious" part or "inventive step".
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Captn. Patent, 12 Aug 2011 @ 8:15am

IPew
This reminds me of a lecture I attended titled "Pushing the boundaries of exhaustion", not for the sake of extortion, rather for the appearance of legitimacy in extorting companies to purchase products and support. The mantra went something like this: "let's put the F in FUD" and it dominated boardroom banter.... I witnessed first hand.

Companies like MS, BAS, PS and Oracle (to name a few) began suing each other's enterprise clients for patent infringement. The strategy seemed to work at first then indemnification became standard and so, the usual patent truce locked out innovative startups.
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MrWilson, 12 Aug 2011 @ 8:40am

Re: Re: Re: Patent,Trademark, Copyright, License
And ICE seizes the websites of all involved, including the FBI and local police websites since they allegedly contributed to the infringement.
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STJ, 12 Aug 2011 @ 8:55am

If you are going to be under a constant threat of lawsuits, then why pay to buy it? You're going to be sued anyway.
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Anonymous Coward, 12 Aug 2011 @ 11:14am

Ignorance of the law is no excuse.
users of Limelight's services who do "tagging" could be liable for patent infringement without having any idea at all that they're at risk

Ignorance of the law is no excuse, freetards.
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Anonymous Coward, 12 Aug 2011 @ 11:19am

Re: Re: So are they going to sue Mr. Prior Art?
Everything is built on top of existing stuff, so no claim can be 100% new.

Sounds like a good reason to get rid of patents, then.
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Jose_X, 12 Aug 2011 @ 11:44am

Re: Re: So are they going to sue Mr. Prior Art?
>> It's likely the 10% not in the prior art is the "non-obvious" part or "inventive step".

Right. You focus the lawsuit (and I'm not justifying a patent or the general court procedures) on the person responsible for the inventive step (if anyone can be called out on this) and not on any/all who built up pieces, that likely by themselves are unpatentable.
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ossdave (profile), 12 Aug 2011 @ 1:06pm

Patent Holders Trying To Drag 3rd Parties Into Patent Disputes
oh my more lawsuits everyone is sueing everyone
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Skeptic, 12 Aug 2011 @ 6:19pm

Re: Re: Re: So are they going to sue Mr. Prior Art?
Find out how much of Einstein's work was based on existing work, and then try to make the argument that he contributed almost nothing.
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Anonymous Coward, 12 Aug 2011 @ 10:51pm

Re: Re: Re: Re: Patent,Trademark, Copyright, License
Meanwhile, Chinese officials look at all this in open-mouthed amazement. They pause occasionally to shake their heads and smirk at each other. They also make that little hand gesture which means that someone has gone mad.
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Just John (profile), 13 Aug 2011 @ 6:29am

Facebook users arrested!
Correct me if I'm wrong, but since Facebook has photo tagging, wouldn't that put them in the same boat?

So, everyone who uses Facebook can now be found to infringe.

Glad I stopped using Facebook. How many people are on there again?
Their lawyers are going to have a field day.
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patent litigation, 23 Aug 2011 @ 5:42am

inducement
There already exists a way to sue 3rd parties -- for "inducement" of patent infringement; in this scenario, the claim steps don't all have to be performed by one party. The difference, however, between this and the situation you explore in your post is that, if I understand it correctly, the so-called "inducing" 3rd party must exercise substantial control over the actions of the main infringer.
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