Patent Loving East Texas Judge Clips Wings Of Largest Patent Troll

from the go-away-now dept

Fri, Oct 2nd 2015 1:50pm — Mike Masnick

Earlier this year, we noted that patent trolls had struck back, filing a ton of new cases this year. The leading patent troll was a firm called eDekka:

Like many patent trolls, not much is known about eDekka, but it's represented by Austin Hansley, who just happens to represent all three of the top patent troll lawsuit filers in that graphic above: eDekka, Data Carriers and Wetro Lan (you may recall Wetro Lan, for using an expired bogus patent on a basic firewall to troll lots of companies -- and also for its name (say it out loud)). eDekka, though, topped the list with a ton of lawsuits over US Patent 6,266,674, for "random access information retrieval utilizing user-defined labels."

However, in a surprise move, Judge Rodney Gilstrap, in the Eastern District of Texas, has just tossed out 168 lawsuits filed by eDekka, after noting that the '674 patent is not valid under Section 101 of the Patent Act. As recent Supreme Court rulings have made clear, you can't just take a standard thing that people have done for ages, and "do it on a computer" to get a patent. And that's the key problem that Judge Gilstrap notes in his ruling:

As summarized above, the claimed idea represents routine tasks that could be performed by a human. While the generic requirement of a “data structure” is included, Claim 1 essentially describes the common process of receiving, labeling, and storing information, while Claim 3 encompasses retrieving such information.

And thus, the patent covers nothing more than an "abstract idea," which are not patentable under Section 101.

But... that's not all. In this one single order, Judge Gilstrap says that everyone else who has been sued under this patent shall be considered prevailing parties in their lawsuits and then issued a separate order allowing all of the defendants sued by eDekka to jointly file a brief asking for attorneys' fees:

The Court ORDERS Defendants to file a consolidated brief of not to exceed fifteen (15) pages in support of any and all claims for reasonable attorney fees...

As Joe Mullin notes in his story on this (linked above), this is especially surprising from Judge Gilstrap:

Just the invite is a sign of changing times: in his four years on the bench, Gilstrap has never granted attorneys' fees to a defendant.

Indeed, as we've pointed out just recently, Judge Gilstrap had become something of a patent troll favorite down in East Texas. Perhaps that's changing...

Gov Uscourts Txed 159252 100 0 (PDF)Gov Uscourts Txed 159252 100 0 (Text)

Gov Uscourts Txed 159252 101 0 (PDF)Gov Uscourts Txed 159252 101 0 (Text)

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Filed Under: abstract ideas, austin hansley, east texas, labels, patentable subject matter, patents, rodney gilstrap
Companies: data carriers, edekka, wetro lan

31 Comments

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Baron von Robber, 2 Oct 2015 @ 2:07pm

Maybe eDekka forgot to build a public tennis court to go next to Samsung's ice rink?
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Mason Wheeler (profile), 2 Oct 2015 @ 2:07pm

In other news, reports are pouring in of mass hysteria, human sacrifice, cats and dogs living together...
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Anonymous Coward, 2 Oct 2015 @ 2:40pm

Maybe he started reading Techdirt?
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Anonymous Coward, 2 Oct 2015 @ 2:45pm

In totally unrelated news, programmers everywhere have abandoned the use of data structures altogether. "If we can't patent them, what's the point of even thinking about them?" said one particularly-despondent hacker. "I've reverted to Turing machine transition diagrams for all my new inventions." Another said, "if you can't invent something, does it truly exist? Pascal would have said 'no'" There has, however, been a surge in new ventures aimed at supplying computing-grade clay, styli, and portable straw-powered tablet-baking devices.

Also in apparently unrelated news, EFF vigilantes were burning sky-rises and robbing banks with wild abandon, and the Chief Anarch announced plans to hold stock exchange members for ransom.
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JoeCool (profile), 2 Oct 2015 @ 4:23pm

Anyone can have a change of heart
Maybe he was visited by the Ghosts of Lawsuits Past, Present, and Future last night.
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Anonymous Coward, 2 Oct 2015 @ 7:34pm

Someone forgot...
...to contribute to the judge's slush fund.
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Anonymous Coward, 2 Oct 2015 @ 8:48pm

I'm starting to see why Mark Syman hasn't been showing up lately...
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blogagog (profile), 3 Oct 2015 @ 7:08am

my patent
I have patented the word 'the'. Any time you use it, you owe me a quarter.

Ok, the patent is still 'pending', but I want my quarter!
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Guest, 3 Oct 2015 @ 11:22am

Ignorance is bliss
The comments on this site are so ignorant and inflammatory... If the judge denies a 101 he's troll friendly. If he grants one it's because he wasn't bribed correctly. These judges have more knowledge and experience with patent litigation than any in the country. They have developed local rules to expedite jury trials because they believe in the jury system (even in patent cases) whereas defense lawyers believe patent cases should be decided on summary judgment. As clearly demonstrated the judges try to weed out trash cases like these wihere they can. Defendants use back logged venues with judges that hate patent cases to delay trials. Defendants also believe that if you aren't using your patent rights, that it shouldn't matter if they infringe them. I'd like to see how that argument plays out wrt mineral rights or real property rights. It's always easy to claim lawsuit abuse until
you are the one whose rights are infringed. Remember that sheep. And also this man is a federal judge.. What are you? Have you served your country? Show a little respect and use a little independent thought.
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Anonymous Coward, 3 Oct 2015 @ 1:00pm

>Defendants use back logged venues with judges that hate patent cases to delay trials. Defendants also believe that if you aren't using your patent rights, that it shouldn't matter if they infringe them.

Tarring with a mighty broad brush there, aren't you there, M'lud Jeffries?
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Anonymous Coward, 4 Oct 2015 @ 8:46am

Re: Ignorance is bliss
"I'd like to see how that argument plays out wrt mineral rights or real property rights."

I think we've already discussed this in the past. With real property most jurisdictions require owners to pay an annual property tax. Many cities also require owners to maintain the property at least to some extent and ensure it meets city standards.

IP is not really property. It's only purpose should be to promote the progress of the sciences and useful arts and to serve a public interest. It should not exist because you think it's property and people should have a right to it. It's a gift of government and not a right of nature. Like all laws, including real property laws, they should exist only to serve a public interest. Having said that IP is an infringement on my property. It's the government putting limitations on what I can/can't do with my property without permission from a private party. So the argument against IP with respect to real property rights is that IP is bad for real property rights because they infringe on my real property rights. That's how that argument plays out.
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Anonymous Coward, 4 Oct 2015 @ 8:53am

Re: Ignorance is bliss
"The comments on this site are so ignorant and inflammatory... If the judge denies a 101 he's troll friendly."

I think they were jokingly exaggerating. Not ignorant.

"If the judge denies a 101 he's troll friendly. If he grants one it's because he wasn't bribed correctly."

See above.

Also there is very little denying that the current state of IP laws are a result of politicians being bought and paid for. For instance 95+ year copy protection lengths, retroactive extensions, and attempts to negotiate these laws in secrecy with industry interests invited. The very history of IP laws and who advocated for them shows their strongest proponents have always been business interests. Look at all the people that protested against SOPA. There has never been huge groups of people protesting in favor of IP laws. Instead we have Hollywood astroturfing campaigns disguised as grassroots programs pushing for more IP laws. Make no mistake the existence (and history) of IP laws and our current IP laws have very little to do with democracy and a whole lot to do with corporate influence. That's not an exaggeration. It's reality.
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Anonymous Coward, 4 Oct 2015 @ 12:08pm

Re: Re: Ignorance is bliss
So, if I get this straight. I, say, make a movie but it can't be my property, then you buy my movie and suddenly it is your property?
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Guest, 4 Oct 2015 @ 12:17pm

Re: Re: Ignorance is bliss
Yep, got that it was an exageration. But it's also a false stupid comment that comes from someone that doesn't have a clue or actually practice law of any kind. You ask any patent litigator in the country what court they want to be in (outside the company of their defense client) 9 out of 10 say it's edtex. The judges know more about patent law than all the others combined.

You are correct that politicians and special interest run IP in this country and right now big companies are doing everything they can to erode patent protection for patent holders/owners in congress and through very sophisticated PR campaigns--trying to accomplish what insurance companies did to med mal law in the late 90s in Texas. Now it's gone. Somebody leave a sponge in your abdomen after surgery? Ugh... Sorry can't help you. Dr. Cut off the wrong leg? Thank your state senators for the tort reform.

Point is, they threw the baby out with the bath water. Same will happen to patent protection if we let Google, Samsung etc. have it their way. Sure there are some awful patents asserted but that's the judges job not Congress's to take care of it. looks like Gilstrap did just that. Instead of writing ignorant inflammatory comments you should be thanking him for doing a great job.
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tqk (profile), 4 Oct 2015 @ 12:27pm

I'm impressed! :-)
... and then issued a separate order allowing all of the defendants sued by eDekka to jointly file a brief asking for attorneys' fees: ...

Did I misread the filing? Where was the bit about burning them at the stake?

Is East Texas starting to become a court of justice or something? That'd be cool.
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Anonymous Coward, 4 Oct 2015 @ 12:40pm

Re: Re: Re: Ignorance is bliss
I'm not sure where you learned to read.
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Anonymous Coward, 4 Oct 2015 @ 12:51pm

Re: Re: Re: Ignorance is bliss
"But it's also a false stupid comment that comes from someone that doesn't have a clue or actually practice law of any kind."

Disagreeing with you is not the same as not having a clue or not practicing law.

"You ask any patent litigator in the country what court they want to be in (outside the company of their defense client) 9 out of 10 say it's edtex."

and if you asked those same exact lawyers which venue they would choose if they were defending someone from a patent case they would not choose East Texas. What's your point? It's very well known that lawyers venue shop as much as possible and a good lawyer knows which venues to choose for which cases because they know which venues tend to rule in which ways. That says nothing about how knowledgeable the venue is or about the merits of the venue.

"The judges know more about patent law than all the others combined."

Equating being the most pro-patent with knowing the most is ridiculous.

"trying to accomplish what insurance companies did to med mal law in the late 90s in Texas. Now it's gone. Somebody leave a sponge in your abdomen after surgery? Ugh... Sorry can't help you. Dr. Cut off the wrong leg? Thank your state senators for the tort reform. "

Why should the insurance company cover a doctor's or hospital's screw up? Ensuring that a doctor or hospital is liable for their own screw ups will encourage practitioners not to screw up.

"You are correct that politicians and special interest run IP in this country and right now big companies are doing everything they can to erode patent protection for patent holders/owners in congress and through very sophisticated PR campaigns"

The very existence of IP laws is not a result of a democratic effort. There was never protesting in the streets from mass amounts of people declaring they want IP laws to exist and become expanded. The current state of IP laws is a result of business interests buying politicians. Patent laws are often strongly defended by pharmaceutical corporations not mass amounts of people protesting the streets. To deny that is to be intentionally ignorant and dishonest.

"Same will happen to patent protection if we let Google, Samsung etc. have it their way."

This is not about what Samsung or Google want. It's about democracy. and if IP laws are strongly reduced I highly doubt I would see huge protesting in the streets from people because, as a society, the people aren't really in favor of them. They exist because corporations put them there. The current overreaching IP laws are overreaching because corporations made them so. Not because of democracy.
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Anonymous Coward, 4 Oct 2015 @ 2:59pm

Re: Re: Re: Re: Ignorance is bliss
Nothing wrong with my comprehension. Your argument is "it's not property until it's my property". Good for the goose but not for the gander.
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Anonymous Coward, 4 Oct 2015 @ 3:14pm

Re: Re: Re: Re: Re: Ignorance is bliss
Again you need to get your reading comprehension checked.
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Anonymous Coward, 4 Oct 2015 @ 4:13pm

Re: Re: Re: Re: Re: Re: Ignorance is bliss
Your arguments flawed and I'm an idiot. Nice one buddy.
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Anonymous Coward, 4 Oct 2015 @ 5:33pm

Re: Re: Re: Re: Re: Re: Re: Ignorance is bliss
What?
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That One Guy (profile), 4 Oct 2015 @ 9:44pm

Re: I'm impressed! :-)
Nah, most likely just a moment of sanity before it'll be balanced out by an even more insane ruling in favor of a ludicrous patent.
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Anonymous Coward, 4 Oct 2015 @ 9:54pm

We Trolan
With a name like trolan their patents have to be good!
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MrTroy (profile), 4 Oct 2015 @ 11:01pm

Re: Anyone can have a change of heart
I prefer to think he was "working deep", taking time to make himself the sweetheart of the patent trolls, biding his time... slowly losing sleep and sanity as he constantly wondered if he was doing the right thing... until he finally saw his chance to strike, and threw his spear deep into the breast of the worst of the trolls!

Undercover superhero is way cooler than reformed scrooge.
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Anonymous Coward, 5 Oct 2015 @ 9:15am

Re: Re: Re: Re: Re: Re: Re: Ignorance is bliss
You're the one arguing in favor of patents. I'm just requiring you to defend your arguments. So far you have not.
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Anonymous Coward, 5 Oct 2015 @ 9:16am

Re: Re: Re: Re: Re: Re: Re: Re: Ignorance is bliss
See, if you want patents the burden is on you to justify their existence, not the other way around, and you have failed to do that.
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Anonymous Coward, 5 Oct 2015 @ 2:04pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Ignorance is bliss
I wasn't arguing anything, just pointing out the cognitive dissonance in what you'd said.
And telling me I can't read is NOT asking me to defend a position, it just makes you come across as an asshole.
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Anonymous Coward, 6 Oct 2015 @ 8:13am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Ignorance is bliss
I'm still waiting for you to point out anything. So far you haven't.
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Anonymous Coward, 6 Oct 2015 @ 8:17am

Re: Re: Re: Ignorance is bliss
The movie is not property. The medium it is stored on is physical property. You can charge for a first time access to that but once it is publicly released everyone copying it does not infringe on property laws. Perhaps contract law only to the individuals you released it to if there was an agreement between you and those you sold it to but that is only between you and those you sold it to. Anyone else with a copy that never agreed to anything with those individuals that initially got the movie and gave someone else a copy has agreed to nothing and has violated no contract and are under no contractual obligation to stop distributing copies of the movie. This includes service providers anyone may have uploaded to.
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Anonymous Coward, 6 Oct 2015 @ 8:35am

Re: Re: Re: Ignorance is bliss
"You are correct that politicians and special interest run IP in this country and right now big companies are doing everything they can to erode patent protection for patent holders/owners in congress and through very sophisticated PR campaigns"

Your statement doesn't really hold such weight when you consider that the mainstream media is mostly owned by pro-IP entities and the media has, long before the Internet, been very pro-IP. The mainstream (television & broadcasting) media has a long history of either taking a pro-IP stance or ignoring the issue. Their campaign isn't even that sophisticated, the owners of these media outlets aren't intelligent enough to do anything sophisticated (they're too dumb to do anything sophisticated, like yourself), instead, their self serving agenda and campaign has been pretty simple, one sided, yet wide reaching thanks to their government granted media monopolies. It has simply been to ignore IP issues when convenient and take a pro-IP position when convenient.

https://www.techdirt.com/articles/20091101/1818186751.shtml

https://www.techdirt.com/artic les/20101005/12204511290/why-won-t-universal-music-let-you-see-the-20-20-report-from-1980-about-how- the-music-industry-is-dying.shtml

Nothing sophisticated about their campaign. Just one sided, far reaching, stupidity.

and if Google really wanted to start an anti-IP campaign they could be a whole lot more like the mainstream media and put a small link at the bottom of their page that links to anti-IP posts. Samsung could include some small printed note criticizing IP laws with all their products. But Google and Samsung don't really position themselves as media outlets (not that they don't have spokespeople and blogs like other companies where they can't present their position) which is why they don't generally exercise the reach they do have in that manner (though they arguably should. Uber has and it's done a lot of public good. Imagine if Google started pouring a billion dollars in anti-IP campaign ads everywhere and put a link on their homepage covering the issue. The public is already not too fond of IP laws and campaign ads are free speech). But the mainstream media (ie: television news) do position themselves as neutral (that is, not self serving) media outlets and as such they have a responsibility not to bias their coverage of these issues in a self serving manner. Yet they unhesitatingly and obviously, with no restraint, do.
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Richard Falk, 1 Dec 2015 @ 10:39pm

Possible Reason for Change of Heart
Could it possibly be that the reason Judge Gilstrap has not only ruled using Section 101 after Alice but is also allowing for attorney's fee filings after Octane Fitness is that he is setting up counter-arguments against the tide in Congress towards reducing venue shopping? After all, it would have been easier for the EDTX to be painted as extreme when there were no attorney fee rulings after Octane when such rulings increased at least twofold overall (due to other districts). Similarly for the number of Section 101 opinions.
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