Do Patents On Your Website Make You Liable For False Marking?

from the mark-this dept

One of the things that tends to keep patent lawsuits in check between two larger competing companies is the "patent nuclear war" scenario -- which is that if one company sues the other for patent infringement, the latter company often can hit back with an equal number of infringement charges. Thus, the incentives are for companies to stockpile lots of patents, but not necessarily use them... though it does happen occasionally. While this may be seen as a net waste (spending on patents for the sake of stockpiling, rather than for any socially or economically useful purpose), at least it keeps the lawsuits in check. One of the big problems that many companies have with the rise of "non-practicing entities" who merely hold onto patents for the purpose of suing (the so-called "patent trolls"), is that this same deterrent doesn't work. That is, because these patent holders aren't making anything, there's nothing to countersue over. That leads to unequal power, and greater likelihood of litigation. In many ways (though, certainly not all), it's similar to terrorists attacking a large country whose army is designed to battle other armies from other countries. When hit by terrorists, the army isn't designed to fight back against a non-governmental army.

However, it looks like at least one company is attempting a rather novel way to try to hit back -- though it seems unlikely to work. Apparently Juniper was hit by a patent infringement lawsuit by a patent holder over some patents related to firewalls and intrusion detection. The individual who holds the patent happens to have a website where he lists his accomplishments, including the two patents. From that same website, the guy sells various services... and according to Juniper, by listing the patents and offering a service, the guy was implying the services that he offered were covered by those patents. However, the services aren't covered by the patents, so Juniper claims the guy is "false marking." This is a rule that forbids you from claiming a certain product is covered by a specific patent when it is not.

This seems like an incredible longshot, and the judge dismissed the first attempt to do this -- though Juniper has filed an amended complaint where it's trying this tactic again. Obviously, I'm not a fan of patent holders who try to stop actual innovators in the marketplace, but this counter-attack from Juniper doesn't make much sense, and hopefully, will get thrown out again as well.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Derek, Jun 10th, 2009 @ 8:00pm

    I like your analogy about the terrorists. Very good.

    Hopefully people don't read into it what you didn't write.

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Jun 10th, 2009 @ 8:22pm

    I have to wonder Mike, do you have some soft of database of catch phrases of the day, and work really, really hard to include them in your posts? Do you specifically create posts just so you can link to them later, to push SEO?

    It's amazing to see how your blog works.

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Little TechDirt Lemming Punk, Jun 10th, 2009 @ 8:30pm

    AC sounds a lot like WH.
    Hopefully software and business method patents will soon be history. School children will learn about the sillness and wonder what were they thinking ...

     

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  4.  
    icon
    Esahc (profile), Jun 10th, 2009 @ 9:08pm

    Re:

    sarcasm/

    If he does I have a copyright on said database and the business process to bring said database to market. Also I have all "catch phrases" in that database trademarked including:
    "I have to wonder"
    "do you have"
    "some soft of"
    "database of catch phrases"
    "of the day"
    "work really, really hard"
    "include them in your posts?"
    "Do you specifically create posts just so you can link to them later"

    Do you want to settle now or have your people meet my people at a latter date? By the way, my people are named Guido & Tony and they have ways of dealing with schmucks like you.

    /sarcasm

     

    reply to this | link to this | view in thread ]

  5.  
    icon
    Esahc (profile), Jun 10th, 2009 @ 9:15pm

    Re:

    Actually I believe WH was sincere in his opinions and occasionally he did put up a good fight.

    This AC seems paid to be an ass-hat.

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, Jun 10th, 2009 @ 9:39pm

    This matter appears to be a bit more convoluted than thepriortart article suggests. As near as I can tell, the inventor is an individual who seems to have transferred ownership of the two patents to a "company" that goes by the name Enhanced Security Research LLC ("ESR"). According to court records ESR recently filed a lawsuit against Juniper for patent infringement.

    The instant case where the inventor, Shipley, is named as the defendant has absolutely nothing to do with the ESR case against Juniper. Rather, it appears to be a not-so-subtle attempt by Juniper to stick it personally to Shipley and perhaps thereby try and get some leverage in the ESR lawsuit.

    In my view Juniper is doing itself no favor with its suit against Shipley. Its legal basis is tenuous (I am trying to be charitable), and it runs the risk of damaging whatever meritorious defenses it may have in its lawsuit with ESR.

    BTW, I did a quick search concerning Shipley and find him to be an interesting individual who most certainly does not appear to fit the mold of what may term a "troll".

    On a final note, if any judge was to seriously entertain the legal theory proferred by Juniper's attorneys, it would behoove most people who have posted their resumes on the internet, which resumes list patent numbers, to take them down ASAP.

     

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  7.  
    icon
    iyogi (profile), Jun 10th, 2009 @ 10:43pm

    RE:

    The individual who holds the patent happens to have a website where he lists his.

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Anonymous Coward, Jun 10th, 2009 @ 10:58pm

    Re:

    I think some patents are good but currently I do think patents are causing much more harm than good. Hopefully this gets fixed.

    I've posted this before but I want to post it again because I think it brings some good insight to the situation.

    http://ideas.4brad.com/archives/000061.html

    I think patents to new problems are generally bad. For example, a patent on a one click buy or a system that lets you buy things online is a bad patent. Once we have the technology to create such systems (ie: Internet) the problem is easily solvable, we shouldn't simply grant a patent to the first person who tries to solve it (since many people can easily solve it). It's a new problem, give the free market some time to solve it (perhaps five years) and they probably will.

    Patents to old problems (problems that have been scrutinized by the free market for a long time) tend to make more sense. One important question that should be asked is "how long have people been trying to solve this problem." It's generally bad (and will harm innovation) if someone grants a patent to the first person who solves a new problem because usually it's an easily solvable problem. A patent for whoever cures Aids, for example, would be a good patents since Aids is an old problem.

    Of course the above is an oversimplification of the issue but it is an important thing to consider.

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Wheel of Forchan, Jun 10th, 2009 @ 11:26pm

    Re:

    Oh be nice. Don't make us compare your mother to hitler. It would prove Godwins Law as true and be self defeating.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    angry dude, Jun 11th, 2009 @ 7:54am

    "In many ways ... it's similar to terrorists attacking..."

    Mikey rises to a new low: it's not just his regualr lies anymore - it's downright offensive and disgusting to compare holders of legal rights under US Law to terrorists..

    Mikey, Mikey, have you ever been kicked in the ass by one of the offended folks ?

    Wanna try ?

     

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  11.  
    identicon
    angry dude, Jun 11th, 2009 @ 8:03am

    Re: Re:

    Punky

    perhaps you should know that our wise Supreme Court in their landmark KSR decision said that a patent explicitly stating a known problem to solve is likely invalid (!!!)

    Since then all patent apps are written in such way as to exclude any background section with the problem formulation

    Nice

    Wait for more fun stuff to come - SCOTUS is now embarking on a task of defining "software patents" in their upcoming Bilski decision

    I've got a bad feeling about it

     

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  12.  
    identicon
    angry dude, Jun 11th, 2009 @ 8:40am

    Re:

    "It's amazing to see how your blog works.'

    Like a toilet ?

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, Jun 11th, 2009 @ 9:11am

    Re:

    It's an analogy, he's not implying they are as bad as terrorists. Grow up.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Anonymous Coward, Jun 11th, 2009 @ 9:17am

    Re:

    "it's not just his regualr lies anymore"

    No lies, just opinion. You don't like his opinion, start your ow blog and leave us alone. It's not our fault no one would read your stupid blog, that doesn't mean you have to come over here and take it out on everyone else. Stop trolling here and stop calling people liars just because you disagree with them. Seriously, if you can't have a civilized discussion (without personal attacks) then shut up and leave. It's bad enough corporate thugs like yourself control the mainstream media and manage to censor everything that disagree with you, now that you can't censor blogs that disagree with you you want to resort to the destructive process of personal attacks? Act civilized or get out.

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    Anonymous Coward, Jun 11th, 2009 @ 9:25am

    Re:

    and why should I take the opinion of someone who resorts to personal attacks seriously? The fact that you can't defend your position doesn't mean you should resort to personal attacks. The fact that you pro patent idiots constantly resort to personal attacks whenever you see something that disagrees with you (instead of defending your position) suggests to me that the reason you resort to personal attacks (instead of defending your position) is because you can't defend your position. Resorting to personal attacks will only drive people away from your position. It shows hatred, it shows bad character, it shows an uncivilized, destructive attitude; why should anyone trust someone of your character? Your opinions aren't the only opinions that matter, you have to respect other peoples opinions and if you can't, why should anyone respect yours? They won't.

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    conor boreham, Jun 12th, 2009 @ 2:32am

    football

    you know jack shit about anythimg

     

    reply to this | link to this | view in thread ]

  17.  
    icon
    Ronald J Riley (profile), Jun 12th, 2009 @ 6:02pm

    Abuse of process of law no substitute for inventiveness.

    Mike says: "I'm not a fan of patent holders who try to stop actual innovators in the marketplace"

    Belligerently misappropriating others' inventions does not make the entity doing so an innovator. It makes them a patent pirate.

    This kind of abuse of process of law is standard fare among patent pirates and any company pulling this kind of stunt should be subject to sanctions.

    I received an anonymous tip that Juniper has pulled this kind of stunt in the past. Perhaps someone with a legal background can research rather this is the case.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Anonymous Coward, Jun 30th, 2009 @ 7:47pm

    Re: Abuse of process of law no substitute for inventiveness.

    They have done it before

    Juniper Networks, Inc. v. SSL Services, LLC


    Ref: http://www.rfcexpress.com/lawsuit.asp?id=43206

     

    reply to this | link to this | view in thread ]


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