Lawyer Stupidly Sues EFF For Defamation After It Called His Stupid Patent Stupid

from the seems-like-a-stupid-move dept

Wed, Jun 3rd 2015 8:29am — Mike Masnick

There are certain general rules about who not to attack that you should generally stick to: You should never get involved in a land war in Asia. You should never pick a fight with people who buy ink by the barrel. And perhaps now we can add: never sue the EFF for defamation for calling your patent stupid. But that appears to be exactly what Scott A. Horstemeyer is doing.

Back at the end of April, the EFF featured a patent held by Horstemeyer in its monthly "Stupid Patent of the Month." We actually reposted it ourselves. You can go back and read those original posts detailing how and why the patent is stupid. But Horstemeyer isn't happy. It apparently hurt his feelings for his little patent to be called out among all the stupid patents for extra special treatment. So he had a lawyer send a threat letter claiming that the post included "false, defamatory and malicious statements."

The letter lays out three such claims. First, saying that it's "false" to say that "patent applicants attorneys have an ethical obligation to disclose any information material to patentability." Yes, that's really a battle they want to fight: To argue that they have no ethical obligation to do so, and that to claim otherwise is somehow defamatory. This is wrong on all sorts of levels. Next, they claim that saying that "Horstemeyer has not made any genuine contribution to notification 'technology'" and that "he has shown advanced skill at gaming the patent system" is defamatory because it "impugns" him. That's not how defamation works, but okay. Finally, they object to the claim that "It appears Horstemeyer hoped the Office would not notice [the Alice] decision and would simply rubber-stamp his application."

None of these statements comes even remotely close to being defamatory. They are all either statements of opinion or, at best, hyperbole. To argue that these are defamatory is simply ridiculous.

But rather than just do the initially dumb thing of sending a threat letter, hoping it would lead the EFF to pull its story down (ha!), Horstemeyer took it a step further and had his lawyer file an actual complaint in a Georgia county court. The lawsuit repeats, verbatim, the complaints in the letter. And it goes even further, ridiculously arguing that because Mark Cuban and Markus "notch" Persson donated hundreds of thousands of dollars to EFF, with Cuban's money going to form the "Mark Cuban Chair to Eliminate Stupid Patents" (a position currently held by Daniel Nazer, who wrote the original EFF post), it shows that the "defamation" was done "with malice" and "for their own selfish financial benefit and profit."

This also makes absolutely no sense. Nazer doesn't make any additional money by calling out Horstemeyer's stupid patent for being stupid. The whole thing is nuts.

The EFF has responded by sending a letter, noting that Horstemeyer knew they were responding and still rushed to the courthouse. As the EFF rightly notes, nothing in the article is even remotely defamatory.

The Article is opinion that is absolutely protected by the First Amendment to the United States Constitution and state law, including that of Georgia and California. As your Letter does not identify any specific statement of fact that is provably false, it instead appears that your client takes issue with EFF expressing its belief that: Mr. Horstemeyer sought and was granted a "stupid" patent, - U.S. Patent No. 9,013,334 (the "'334 Patent"); that he appeared to "gam[e] the patent system" in doing so; and he may have acted unethically. While you may disagree with this opinion, it is not actionable.

It then walks, point by point, through the complaint and details why none of the claims are even remotely actionable. Following this, it notes that if Horstemeyer does not decide to drop the suit, the EFF will (quite reasonably) seek anti-SLAPP rulings, including the awarding of attorney's fees under Georgia's and California's anti-SLAPP laws:

Further, assuming that your client is able to establish personal jurisdiction over EFF and Mr. Nazer, EFF will move for an immediate determination of whether the Article is protected speech, and will further move for its attorney's fees, under the applicable anti-SLAPP statute and/or under Fed. R. Civ. P. 11. See. e.g., Cal.Civ.Proc.Code § 425.16 (California anti-SLAPP statute); 0.C.G.A. 9-11-11.1 (Georgia anti-SLAPP statute); Hindu Temple and Community Center of High Desert. Inc. v. Raghunathan, 311 Ga. App. 109 (2011) (awarding fees); Koly v. Enney, 269 Fed. Appx. 861, 36 Media L. Rep. 1513 (11th Cir. March 7, 2008) (award of attorney's fees required under Fed. R. Civ. P. 11 because allegations that conduct of corporate officers were examples of "impropriety" and a "serious conflict of interest'' were personal opinions based on the facts set out in a corporate communication to other directors).

It also notes, of course, that continuing with the lawsuit is likely to:

bring further publicity to his actions with regards to the '334 Patent, specifically his failure to disclose Judge Wu's decision to the PTO as well as his apparent belief in this and other patent applications that he is under no duty to disclose adverse court decisions regarding substantially similar patents.

You don't say...

150514 Eff Letter 1 (PDF)150514 Eff Letter 1 (Text)

Horstmeyer v Electronic Frontier Foundation Complaint (PDF)Horstmeyer v Electronic Frontier Foundation Complaint (Text)

Eff Ltr to Sanford J Asman Esq 5 29 15 (PDF)Eff Ltr to Sanford J Asman Esq 5 29 15 (Text)

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Filed Under: anti-slapp, defamation, opinion, patents, scott horstemeyer, slapp, stupid, stupid patents
Companies: eclipse ip

35 Comments

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Reader Comments

The First Word

“

Re: Need some serious research here...

What "law" school is turning out these lawyers?

What law schools are failing to stop letting these lawyers be turned out? Why aren't the good lawyers all doing the Ken "Popehat" White thing and hunting these jerks down? How can good lawyers stand it that their hard work and dedication has to fight uphill against the horrible reputation all the ambulance chasers have given their profession?

Why did it take so long for the judges' righteous indignation to finally well up and focus on Prenda?

Why aren't the good lawyers declaring open season on these bums and cleaning up the mess? It happens in just about every other profession. Why not in the legal profession?

—tqk

”

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Violynne (profile), 3 Jun 2015 @ 7:54am

Stupid lawyer.
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- Anonymous Coward, 3 Jun 2015 @ 8:55am
  
  Re:
  On the planet Ajuris 5 they got rid of their lawyer problems by making lawyers face the same punishment as the defendants if they lost. I think that may have some applications here.
  [ link to this | view in chronology ]
TheResidentSkeptic (profile), 3 Jun 2015 @ 8:17am

Need some serious research here...
What "law" school is turning out these lawyers? From the Prenda team to our favorite hole-digger - and now this guy?

This school needs to be found and shut down.
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- Anonymous Coward, 3 Jun 2015 @ 9:01am
  
  Re: Need some serious research here...
  All of them.
  [ link to this | view in chronology ]
- tqk (profile), 3 Jun 2015 @ 9:13am
  
  Re: Need some serious research here...
  What "law" school is turning out these lawyers?
  
  What law schools are failing to stop letting these lawyers be turned out? Why aren't the good lawyers all doing the Ken "Popehat" White thing and hunting these jerks down? How can good lawyers stand it that their hard work and dedication has to fight uphill against the horrible reputation all the ambulance chasers have given their profession?
  
  Why did it take so long for the judges' righteous indignation to finally well up and focus on Prenda?
  
  Why aren't the good lawyers declaring open season on these bums and cleaning up the mess? It happens in just about every other profession. Why not in the legal profession?
  [ link to this | view in chronology ]
  - Anonymous Coward, 3 Jun 2015 @ 2:24pm
    
    Re: Re: Need some serious research here...
    'Good' (used under advisement) lawyers don't want bad lawyers to go away, because it makes them look better.
    
    PLUS if the majority of lawyers are bad, then the good(as in reasonable ability not as in nice) ones have a much bigger chance of being set against one in a case and therefore giving them a thorough and complete drubbing.
    [ link to this | view in chronology ]
  - Bergman (profile), 5 Jun 2015 @ 2:44am
    
    Re: Re: Need some serious research here...
    Probably from one of the 'schools' run by Axact.
    [ link to this | view in chronology ]
- Gwiz (profile), 3 Jun 2015 @ 12:35pm
  
  Re: Need some serious research here...
  What "law" school is turning out these lawyers?
  
  My guess would be the Thomas M. Cooley Law School.
  
  I heard somewhere that Suing Your Critics 134 is a pretty popular class.
  [ link to this | view in chronology ]
Anonymous Coward, 3 Jun 2015 @ 8:58am

There is no legal remedy for butthurt.
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wereisjessicahyde (profile), 3 Jun 2015 @ 9:04am

I've always found "never eat yellow snow" to be sound advice.
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- DannyB (profile), 3 Jun 2015 @ 10:21am
  
  Re:
  You sound rather convinced and closed minded about this.
  [ link to this | view in chronology ]
  - wereisjessicahyde (profile), 12 Jun 2015 @ 2:15pm
    
    Re: Re:
    Unless it's snowing outside a lemon factory with a leak, then yes I am committed.
    [ link to this | view in chronology ]
- Anonymous Coward, 3 Jun 2015 @ 2:26pm
  
  Re:
  Personally I enjoy pineapple snowcones..but to each their own....
  [ link to this | view in chronology ]
David, 3 Jun 2015 @ 9:10am

It's a sign of a failing patent system
when somebody too stupid to find his head in a barrel is able to get a patent awarded basically by just hitting the "Send" button.

I have to admit that the EFF might have done him injustice by claiming that he has been gaming the system.

If you don't watch your step when entering the patent office, you'll get pelted with patents. That's not "gaming the system" since the system is working exactly like it has been set up to work. Patent examiners have a quota to fulfill, and they don't get a bonus for spending a significant amount of time on examining patents, particularly not if they are going to reject them.
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- Anonymous Coward, 3 Jun 2015 @ 9:34am
  
  Re: It's a sign of a failing patent system
  They're gaming the stated purpose of the system, to promote the progress of the sciences and useful arts.
  [ link to this | view in chronology ]
  - David, 3 Jun 2015 @ 9:46am
    
    Re: Re: It's a sign of a failing patent system
    Well, then voters are gaming the voting system (the stated purpose of which is democratic control of the Republic's principles) by voting for one of the major parties interested in subverting the Constitution's privacy provisions.
    [ link to this | view in chronology ]
    - mcinsand, 3 Jun 2015 @ 10:14am
      
      subverting the constitution
      David,
      
      I hate to break it to you, but subverting our Constitutional protections is a fully bipartisan effort. For every Mitch McConnell on one side, there is a Dianne Feinstein on the other. My firm belief is that we won't improve until voters start falling for the parties' BS when they try to claim that one has different goals from the other.
      [ link to this | view in chronology ]
      - David, 3 Jun 2015 @ 12:43pm
        
        Re: subverting the constitution
        What about "by voting for one of the major parties" did you not understand?
        [ link to this | view in chronology ]
    - DannyB (profile), 3 Jun 2015 @ 10:24am
      
      Re: Re: Re: It's a sign of a failing patent system
      If you believe the problem is either party then you have fallen right into their trap.
      
      Google for this video: ted talks lesterland
      
      Short summary: the rich people control which candidates you get to vote for long before you ever get to vote.
      
      "I don't care who does the voting as long as I get to do the Nominatin'"
      [ link to this | view in chronology ]
      - nasch (profile), 3 Jun 2015 @ 1:05pm
        
        Re: Re: Re: Re: It's a sign of a failing patent system
        See above: https://www.techdirt.com/articles/20150602/19485031201/lawyer-stupidly-sues-eff-defamation-after-it- called-his-stupid-patent-stupid.shtml#c277
        [ link to this | view in chronology ]
Blah Blah, 3 Jun 2015 @ 10:34am

Author is Stupid
EFF is getting sued for saying Horstemeyer knowingly withheld information, unethically, to gain the system and provided incorrect facts to support that claim then posted as "news." The author is obviously one sided.
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- Dirkmaster (profile), 3 Jun 2015 @ 11:02am
  
  Re: Author is Stupid
  Care to support that with a single example? And since all the source documents are right there, and most of us enjoy reading the details, did you really thing you'd get any traction with such baseless statements, troll?
  [ link to this | view in chronology ]
  - Blah Blah, 3 Jun 2015 @ 11:45am
    
    Re: Re: Author is Stupid
    It's all in the legal complaint genius. No where does it say Horstemeyer is suing EFF because they called him stupid.
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- Anonymous Coward, 3 Jun 2015 @ 11:17am
  
  Re: Author is Stupid
  Someone certainly is one sided, but everyone else can clearly see it is you.
  [ link to this | view in chronology ]
- That One Guy (profile), 3 Jun 2015 @ 12:06pm
  
  Nothing 'one-sided' about presenting the facts
  Probably because he did. In fact in the email itself, first page, he argues that he doesn't have an obligation to provide information relevant to a patent, making it abundantly clear that he absolutely did, knowingly, withhold information that could have impacted the acceptance of the patent in question.
  [ link to this | view in chronology ]
- nasch (profile), 3 Jun 2015 @ 1:06pm
  
  Re: Author is Stupid
  Which of the EFF's statements do you believe is defamatory?
  [ link to this | view in chronology ]
- Anonymous Coward, 3 Jun 2015 @ 5:52pm
  
  Re: Author is Stupid
  Rudyard Holmbast, that you?
  [ link to this | view in chronology ]
- techflaws (profile), 3 Jun 2015 @ 10:20pm
  
  Re: Author is Stupid
  and provided incorrect facts
  
  A fact by definition is correct, otherwise it wouldn't be a fact, moron!
  [ link to this | view in chronology ]
Anonymous Coward, 3 Jun 2015 @ 11:34am

Yo Scottster
I understand you have taken exception to the EFF saying "[you have] shown advanced skill at gaming the patent system". I'm sure they're very sorry. I ask you to note that they did not call you an ass-carnivore, depraved patent troll, or a low-born gutter slut. But they did say "advanced skill". No escaping that. Would the great taste of a Charleston Chew candy bar make everything better for you?
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HoleTurth, 3 Jun 2015 @ 12:53pm

This is odd. Lawyers and girlfriends are the only two groups we know of that never overreact.
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Anonymous Coward, 3 Jun 2015 @ 2:26pm

"Mark Cuban Chair to Eliminate Stupid Patents"
I haven't been a fan of Mark Cuban.

Until now.
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RENTNdotORG (profile), 3 Jun 2015 @ 6:16pm

gaming the system
I would like to point out that I was sued for the phrase "gaming the system" over a year before the EFF was. Therefore, I contend I hold the SLAPP copyright to this statement and am entitled to the resulting victim-hood and all the resulting benefits.(Or maybe I mean trademark. Patent? When I have the opportunity, I call an opportunistic lawyer and find out.)

https://www.techdirt.com/articles/20140320/12195726638/property-management-company-files-1-mill ion-defamation-lawsuit-against-critic-former-tenant.shtml
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Spaceman Spiff (profile), 3 Jun 2015 @ 7:06pm

It seems...
It seems that some idiots insist on being public idiots even once their idiocy is so clearly illustrated in public... Oh well. I guess that once an idiot, always an idiot!
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madasahatter (profile), 3 Jun 2015 @ 8:24pm

Dumb shyster
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Lawrence D’Oliveiro, 5 Jun 2015 @ 6:07pm

The Case Has Been Dropped ...
... and the loser claims victory while limping off the field ...
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