La Cosa Patento

September 16, 2013 8:21 PM

Kevin O'Connor, co-founder of DoubleClick and current CEO of FindTheBest files a RICO lawsuit against Lumen View for trying to extort, via patent claims, money from FindTheBest, not to mention claiming that calling someone a "patent troll" is a "hate crime".
posted by juiceCake (37 comments total)

Godspeed.
posted by Sticherbeast at 8:29 PM on September 16, 2013

Patent troll vs spammy online advertiser?

who am I supposed to hate in this story pz advise
posted by elizardbits at 8:35 PM on September 16, 2013 [20 favorites]

8,069,073: “System and method for facilitating bilateral and multilateral decision-making”

"It would be this mat that you would put on the floor, and would have different conclusions written on it, that you could jump to."
posted by Sys Rq at 8:35 PM on September 16, 2013 [44 favorites]

Enforcing a patent isn't extortion.
posted by Chocolate Pickle at 9:01 PM on September 16, 2013

But what if accusing someone of a hate crime is itself a hate crime
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 9:08 PM on September 16, 2013 [3 favorites]

Enforcing a patent isn't extortion.

Is the purpose of this comment start a fight with everyone on MetaFilter who hates the idea that software can be patented, or is it to express disapproval at the way in which this one guy is going about fighting a particular software patent, possibly in hopes of establishing a precedent?
posted by Going To Maine at 9:25 PM on September 16, 2013 [4 favorites]

Enforcing a patent isn't extortion.

If you're targeting tiny enterprises who could in no way afford to defend themselves, with patents that under any fair and reasonable interpretation are completely useless when it comes to novelty and prior art, then yes, it is. Especially since the kind of patents we're talking about are essentially fraudulent, having taken advantage of an outdated, inefficient and overworked patent examination process.
posted by Jimbob at 9:29 PM on September 16, 2013 [17 favorites]

A RICO suit is what you file when you don't have a counterclaim and you don't have a good lawyer, or the other side has no money. Its a SLAPP suit.
posted by Ironmouth at 9:34 PM on September 16, 2013 [1 favorite]

Especially since the kind of patents we're talking about are essentially fraudulent, having taken advantage of an outdated, inefficient and overworked patent examination process.

No. They are not "fraudulent." They are patents granted by the US Government. They are by definition, not fraudulent.

And without patents, there wouldn't be any need to protect the little guy. Giant corporations would copy your thing exactly, they would not even reverse-engineer it. It is foolish to think that somehow patents aren't by their very nature designed to help the little guy.
posted by Ironmouth at 9:38 PM on September 16, 2013

They are by definition, not fraudulent.

If I obtain, say, a passport, from the US government, using false information, is what I've done not fradulent?

If someone submits a patent, deliberately ignoring prior art and making dishonest claims of novelty, how is that not fradulent?
posted by Jimbob at 9:42 PM on September 16, 2013 [12 favorites]

There goes the thread.
posted by wotsac at 9:43 PM on September 16, 2013 [18 favorites]

A RICO suit is what you file when you don't have a counterclaim and you don't have a good lawyer

Exactly.

If I obtain, say, a passport, from the US government, using false information, is what I've done not fraudulent?

No, the passport is not fraudulent. You can be prosecuted for committing fraud attempting to gain a passport, but if the State Department issues you a passport, it is *not* a fraudulent passport. If you copy a valid passport and pass it off as yours, that is a fraudulent passport.

Lying to get a passport is illegal, but if you do so and get one, the passport is valid until they ascertain you lied and revoke it.

Perhaps you should learn the different between fraudulent, invalid and illegal. Yes, they mean very different things.
posted by eriko at 9:58 PM on September 16, 2013 [4 favorites]

And without patents, there wouldn't be any need to protect the little guy. Giant corporations would copy your thing exactly, they would not even reverse-engineer it. It is foolish to think that somehow patents aren't by their very nature designed to help the little guy.

This is only true in certain limited instances, depending on market structure, first-mover advantage, and other matters. And this isn't just me speaking as attorney, I also started a software company. We didn't patent anything and this was a conscious choice. We built a product, established a market, grew our customer base, and realized that there wasn't a lot new about our idea. They're a dime a dozen. Operationalization and implementation is everything. And the better thought-through parts of our implementation strategy became public as we launched our product - but we had learned a lot in taken the product to that point and the bigger players were paralyzed by all sorts of inertia and innovator's dilemmas. A patent wouldn't have helped.

The idea that software patents protect the little guy is almost always wrong. There may be some minor edge cases to the contrary but I'd be impressed if anyone can legitimately make the argument that the overbroad system that we presently have can justify those limited use cases.
posted by allen.spaulding at 10:00 PM on September 16, 2013 [7 favorites]

No, the passport is not fraudulent.

Perhaps you should read my sentence again. Is what I've done not fradulent? Were my actions in submitting false information to obtain the document not an act of fraud?

fraudulent [ˈfrɔːdjʊlənt]
adj
1. acting with or having the intent to deceive
2. relating to or proceeding from fraud or dishonest action

posted by Jimbob at 10:03 PM on September 16, 2013

It's almost like when the poster said "Especially since the kind of patents we're talking about are essentially fraudulent" they weren't invoking the specific legal concept of a nonexistent patent.
posted by Pope Guilty at 10:26 PM on September 16, 2013 [6 favorites]

Damn, lawyers do make the best trolls.
posted by carsonb at 10:29 PM on September 16, 2013 [13 favorites]

Enforcing a patent isn't extortion.

Making a claim of infringement, while refusing to provide any information at all regarding the alleged infringement, in order to demand a settlement -- whilst also doing everything possible to discourage a court ever hearing the controversy -- is not the narrowly- and precisely-defined-by-criminal-codes act of "extortion".

It does, however, bear a resemblance to that, and does fit the general-English-language-usage-rather-than-criminal-code-legal-definition meaning of the word, namely "to wrest or wring (money, information, etc.) from a person by violence, intimidation, or abuse of authority; obtain by force, torture, threat, or the like."

Similarly, while obtaining a patent of obviously-questionable validity does not make the patent itself fraudulent, knowingly attempting to extract monetary settlements through the threat of lawsuits based upon a a patent of obviously-questionable validity is at the very least a deceptive practice.

Now can we have the thread back, please?
posted by ubernostrum at 12:31 AM on September 17, 2013 [18 favorites]

It would be fun to patent patent trolling techniques.
posted by srboisvert at 1:58 AM on September 17, 2013 [1 favorite]

It would be fun to patent patent trolling techniques.

Way ahead of you! I've filed three lawsuits against posters in this thread alone.
posted by Pope Guilty at 2:08 AM on September 17, 2013 [6 favorites]

I don't think "patent trolls" was meant as an exhortation.
posted by Joakim Ziegler at 2:15 AM on September 17, 2013 [2 favorites]

I always thought what their needed to be here was some kind of pre-review process functioning entirely on the principal of good faith when it came to filing cases about this type of thing

One of the primary tenets of it would be that you would have to prove you weren't waiting to fire off the case at some specific time. It should work a hell of a lot more like trademarks where a big thing they look at is how consistently you enforced it.

It should pretty much be your duty to file a case as soon as you know someone is violating something, not 4 years late unless you had a specific explanation(that was documented) that you were working with your legal team to do XYZ as preparations to have a strong case.

All those patent trolls who tried to sue various smartphone companies or apple years in to their products being out when they had started to rake in serious money for them should have been dunk tanked instantly on this sort of thing.

There should be XYZ period of a product being out which is your window to file a case, or at least some sort of agreed upon placeholder that "i need XYZ amount of time for XYZ reason to gather evidence and supporting documentation for my case". Maybe even lock in the damages at whatever they had made up to that date.

This might be a crazy/stupid idea, but the entire possibility that you can set up a shop that basically just holds patents on software to strategically fire off lawsuits at certain times sounds like something from a william gibson novel. It's like... what the fuck.
posted by emptythought at 3:19 AM on September 17, 2013

I always thought what their needed to be here was some kind of pre-review process functioning entirely on the principal of good faith when it came to filing cases about this type of thing

There is. It's called Rule 11 of the Federal Rules of Civil Litigation:

"By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;"
posted by three blind mice at 4:27 AM on September 17, 2013

It certainly seems as though that rule is stringently enforced.
posted by Steely-eyed Missile Man at 5:01 AM on September 17, 2013 [1 favorite]

American lawyers, are you allowed to threaten criminal complaints for the purposes of gaining a civil advantage? Because the Ars article has Lumen View attorney Wasserbauer threatened to file criminal charges—unless FindTheBest settled the civil case immediately, apologized, and gave financial compensation to Shapiro.

Because here in Ontario, at least, our professional conduct stuff specifically does not allow that. Seems weird that they can pull that crap.
posted by Lemurrhea at 6:33 AM on September 17, 2013

The case targeting hotels for using wifi is particularly evil. Looks like the wifi chipset manufacturers played a game of Prisoner's Dilemma with the trolls and Broadcom squealed. Their settlement validates (in their view) suing everyone who is using non-Broadcom wifi everywhere.

/waiting for the President's patent reforms to kick in, and a pony
posted by RobotVoodooPower at 6:51 AM on September 17, 2013

They are by definition, not fraudulent.

If I obtain, say, a passport, from the US government, using false information, is what I've done not fradulent?

If someone submits a patent, deliberately ignoring prior art and making dishonest claims of novelty, how is that not fradulent?

You have evidence that the specific patents in this case were made by submission of false claims?

Because the claim was that the patent system itself was fraudulent.
posted by Ironmouth at 7:09 AM on September 17, 2013

Perhaps you should read my sentence again. Is what I've done not fradulent? Were my actions in submitting false information to obtain the document not an act of fraud?

It does not make the patent itself a fraud, if indeed, the facts found support your claim.
posted by Ironmouth at 7:12 AM on September 17, 2013

A RICO suit is what you file when you don't have a counterclaim and you don't have a good lawyer, or the other side has no money. Its a SLAPP suit.

Isn't that true of patent infringement cases as well, though? That the whole purpose is not to win the case but to force a settlement?

(In which case one could call this a SLAPP-fight.)
posted by modernserf at 7:19 AM on September 17, 2013

That's it- I'm patenting "a method for combining and deploying Germanic and Romance linguistic forms in speech or writing."
posted by TheWhiteSkull at 7:40 AM on September 17, 2013 [2 favorites]

elizardbits: "Patent troll vs spammy online advertiser?

who am I supposed to hate in this story pz advise"

Both - but the patent troll the most. They are worse, no bones about it.
posted by symbioid at 8:36 AM on September 17, 2013

Look, man, if we let patents go, people will see it as precedent and start sharing mp3's, recognizing that the fall of copyright is just around the corner.

And that would be WRONG.
posted by kaibutsu at 9:04 AM on September 17, 2013

Enforcing a patent isn't extortion.

Certainly not always true. Sometimes it is; for example, if the patent doesn't apply, the holder has access to more legal resources than the alleged user of the patent, and the demands are meant to extract money out of fear of legal action. That's pretty much extortion.
posted by Mental Wimp at 9:29 AM on September 17, 2013 [2 favorites]

MetaFilter, where people of varying levels of expertise make shit up about what they think about the issue of the day. If you Read the Fine Article in this post, you'll see they address the applicability of RICO to patent claims:

The suit, filed late Monday, marks only the third time a major effort has been mounted to lasso a patent troll with the law known as the Racketeer Influenced Corrupt Organizations (RICO) act. Cisco tried it against Innovatio, a patent troll that was threatening coffee shops and small hotel chains, but it didn't work.

So its a novel argument they're trying. I'm hopeful it works because there's got to be some sort of pushback to patent trolls. But it's an uphill battle given the presumption that issued patents are valid.
posted by Nelson at 9:42 AM on September 17, 2013

Because the claim was that the patent system itself was fraudulent.

My claim was (for those following along at home and reading this thread through a filter of ethics and morality, rather than legalese) that it is an act of dishonesty, and to describe this I used the term "fradulent" as defined in my local brand of English's dictionary, to obtain a patent againt the spirit and common understanding of the purpose and rules for patents.

It is commonly understood that successfully awarded patents should be novel. There are a lot of lawyers (not small-time inventors, lawyers) walking around with patents that are not novel in terms of what came before them, that are being used against individuals and firms that are specifically targeted because they do not have the resources to challenge the novelty and validity of the patent. Extortion.
posted by Jimbob at 9:47 AM on September 17, 2013 [2 favorites]

This is why we need to stop letting the law redefine common English terms in special technical senses, IMO. US law should be written and interpreted in plain English. Often, the plain English meanings of legal terms predate and conflict with the current legal senses and that can have the effect of subverting the efficacy of the law. If as a judge, I rule that in order for some specific action to be considered fraud, it has to satisfy conditions over and above the ordinary, generally accepted denotative meaning of the word, then the original law has effectively been altered extra-legislatively from the bench.
posted by saulgoodman at 10:26 AM on September 17, 2013

". . . this Court has consistently held that the primary purpose of our patent laws is not the creation of private fortunes for the owners of patents, but is to promote the progress of science and the useful arts" -- Motion Picture Patents Co. v. Universal Film Co. (1917)
posted by RobotVoodooPower at 7:10 PM on September 17, 2013

"Fraudulent" is an adjective that must be carefully applied.

If the previous explanations were not clear enough, maybe this analogy will help.

Let's say that I commit fraud, and this fraud induces someone to write a $1,000 check to me. Is the check fraudulent? No, it is not. It is a real check. The adjective "fraudulent" should not modify the noun "check." If I try to deposit that check, I am not committing any form of check fraud.

Rather, the adjective "fraudulent" should modify the noun "conduct", as my previous, check-inducing conduct was the thing which had been fraudulent. Perhaps if my fraud is uncovered, I will have to return that money.

...

Bringing it back to this case, the patent trolls' patents are indeed real, and not fraudulent, patents. The troubling thing that patent trolls do is to exploit the patent system, by enforcing broad patents in such a way that it forces companies to accept one of two choices: fight a lengthy and expensive legal battle now, or settle now for much less money. On a pure cost-benefit level, the second option will almost always be wiser. Patent trolls game the system, and the way to defeat them may be to reengineer the patent enforcement system. This will require some fine-grained and careful legal legwork.

A case with "patent fraud" would be very different. That would be, say, a case in which crooks would claim patent infringement, on patents that do not actually exist. This would be a difficult con to keep going for very long.

It might sound like nitpicking, but it's not. Compare with how copyright infringement is not actually theft. You could not have a sensible legal regime surrounding copyright enforcement if you treated copyright infringement in the same way that we treat theft.

...

saulgoodman, your link about plain English is explicitly not about people using words in seemingly unusual ways. Indeed, you could not have a modern, functioning legal system that did not have specific definitions for terms of art. Instead, the linked article is about short, clear writing.
posted by Sticherbeast at 6:18 AM on September 18, 2013