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

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

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...

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

Why Does The US Patent Office Keep Approving Clearly Ridiculous Patents?

from the patent-office-is-as-patent-office-does dept

Imagine you're on your way to deliver a case of beer to a party. Before you get there, your boss sends you a text: They want 2 cases now. You read the text while driving (don't do that), so you deliver an extra case when you arrive. Having successfully completed that task, you leave for your next delivery.

Congratulations! You might get sued by the owner of April's stupid patent of the month.

This month's winner, US Patent No. 9,013,334 (the '334 patent), has the prosaic title: Notification systems and methods that permit change of quantity for delivery and/or pickup of goods and/or services. It issued just last week, on April 21, 2015. As its title suggests, the patent claims a "method" of updating delivery information. It belongs to Eclipse IP LLC, one of the most litigious patent trolls in the country. Eclipse belongs to an elite group of trolls (such as Arrivalstar and Geotag) that have filed over 100 lawsuits.

Eclipse owns a patent family of more than 20 patents, all of which claim priority back to a single 2003 provisional application. These patents claim various closely related "notification systems." Eclipse interprets its patents very broadly and has asserted them against a wide range of mundane business practices. For example, in January it sent a letter claiming that Tiger Fitness infringes one of these patents by sending emails to customers updating them about the status of orders. This letter explains that "Eclipse IP aggressively litigates patent infringement lawsuits" and that "litigation is expensive and time consuming." The letter demands a $45,000 payment.

We think that all of Eclipse's patents deserve a stupid patent of the month award. But the '334 patent is especially deserving. This is because the Patent Office issued this patent after a federal court invalidated similar claims from other patents in the same family. On September 4, 2014, Judge Wu of the Central District of California issued an order invalidating claims from three of Eclipse's patents. The court explained that these patents claim abstract ideas like checking to see if a task has been completed. Judge Wu applied the Supreme Court's recent decision in Alice v CLS Bank and held the claims invalid under Section 101 of the Patent Act.

All of Eclipse's patents were both "invented" and prosecuted by a patent attorney named Scott Horstemeyer (who just so happens to have prosecuted Arrivalstar's patents too). Patent applicants and their attorneys have an ethical obligation to disclose any information material to patentability. Despite this, from what we can tell from the Patent Office's public access system PAIR, Horstemeyer did not disclose Judge Wu's decision to the examiner during the prosecution of the '334 patent, even though the decision invalidated claims in the patent family. While Horstemeyer has not made any genuine contribution to notification "technology," he has shown advanced skill at gaming the patent system.

Judge Wu's reasoning applies directly to the '334 patent. While one claim in the '334 patent expressly requires "computer program code" executed to carry out the method, this does not make a difference. Indeed, Judge Wu explained that, under Alice, it is not enough that the claimed methods must be performed by a "specially programmed" computer. It appears Horstemeyer hoped the Office would not notice this decision and would simply rubber-stamp his application. Sadly, that is exactly what happened. The Patent Office issued the Patent No. 9,013,334 without raising Alice or Section 101 at all. We believe this is part of a disturbing trend of Patent Office decisions that ignore Alice where courts have struck down almost identical claims.

Trolls like Eclipse will continue to thrive as long as the Patent Office gives them stupid patents and courts allow them to use the cost of litigation to extort settlements. Reform such as the Innovation Act will make abusive patent litigation less attractive. But we need broader reform to stop the Patent Office from being a rubber stamp for vague and overbroad software patents.

Late breaking addition: As if to drive home just how much of a rubber stamp it is, the Patent Office issued yet another patent to Eclipse yesterday. Patent No. 9,019,130 is almost identical to the '334 patent, except it deals with updating "time" information instead of "quantity" information.

Republished from the EFF's Stupid Patent of the Month series

Filed Under: deliveries, notifications, patents, uspto
Companies: eclipse ip