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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.
