When we recently discussed an event
that pitted innovators against patent trolls (which happened last night), I had no idea that one of the innovators speaking was embroiled in a legal battle that is equal parts contentious and maddening hilarity. Kevin O'Connor of FindTheBest was sent the kind of settlement offer we see far too often these days for violating a patent that essentially covers collecting multiple user preferences on the internet. The way it was supposed to work, in the mind of patent trolls, was that O'Connor would realize the offer of $50,000 was likely less than it would cost for a legal battle, causing him to immediately pay patent troll Lumen View. Things, as you will shortly see, did not go as planned
Instead of kowtowing to the troll's demand for $50,000, O'Connor decided to pledge to spend $1 million fighting. He knows it's not the rational business decision... and he doesn't care. Now, we're getting a vision of how FindTheBest is putting that money to use. The company has made a novel legal claim, saying that the troll that came after it is so reckless, it has engaged in outright extortion, violating racketeering laws.
The claim follows an investigation of the troll that sued the startup. The investigation started when O'Connor and FindTheBest Director of Operations Danny Seigle simply started making phone calls. "The first thing you think is, who the hell are these guys?" O'Connor ultimately called the lead inventor listed on the patent, which describes a system for "multilateral decision-making."
There have been few attempts at applying RICO laws against patent trolls in the past. Cisco did it once
, unsuccessfully. However, the subsequent actions by Lumen View and its legal council won't do anything to help its RICO defense, given that every single action it takes seems to be the verbal and legal equivalent of "hey, it'd be a shame if anything happened to your business." O'Connor, clearly motivated to fight the troll, took the logical step of contacting the inventor listed on the patent. Lumen View's response? Accusation that a hate crime
was committed. Seriously
Lumen View's lawyer accused O'Connor of committing a "hate crime" by calling the inventor, Eileen Shapiro of Hillcrest Group. ("I didn't know patent trolls were a protected class," quips O'Connor.) Then the lawyer threatened criminal charges (again, for calling an inventor).
Lumen's attorney made the claim that calling someone a "patent troll" was actually a "hate crime" under “Ninth Circuit precedent." After O'Connor contacted Shapiro, Lumen View attorney Wasserbauer threatened to file criminal charges—unless FindTheBest settled the civil case immediately, apologized, and gave financial compensation to Shapiro. The offer was "good until close of business that day," Wasserbauer allegedly said.
Calling an inventor is a hate crime. Calling someone a patent troll is a hate crime. We're left with two possibilities. Either Lumen View's lawyer doesn't know a whole lot about this whole law thing he's engaged in, or its simply trying to intimidate O'Connor using scary terms and threatening to sling mud. That's because that accusation of hate-crime is completely
without merit. Go ahead, look for yourself and see
where in any federal or state hate-crime legislation a patent troll is a protected party, which consists of race, religion, ethnicity, nationality, gender, sexual orientation, gender identity, or disability. The closest thing that might apply to patent trolls is disability, as in their disabled nature when it comes to producing a freaking product or service
. But that's a stretch even a drunk judge is unlikely to buy.
The rest of Lumen View's actions put the RICO crosshairs squarely on its foreheads. O'Connor's suit alleges that its impossible for FindTheBest to have infringed on the patent, since FTB only collects preferences for users one at a time and the patent is for multiple users entering preferences. The suit also alleges that Lumen View didn't do any investigation beyond a simple internet search and alleges that they have Lumen View's own expert witness to attest as such. Then there's all the other threats in the settlement letters.
The threat letter is also full of barely veiled threats that Lumen will make the lawsuit as expensive as possible. In fact, the majority of the letter describes how the defendant company must take drastic steps to collect all its electronic and other documents now that it has been sued—if it doesn't, sanctions may occur, says Lumen. Finally, The letter makes technological demands that would be almost impossible to meet without shutting down one's business. In the Lumen View letter, it instructs the target company to immediately preserve "the complete contents of each user's network share and e-mail accounts," writes Lumen. That's in addition to "system sequestration," meaning that any accused "systems, media, and devices" should be "remove[d]... from service to properly sequester and protect them."
Put more simply, Lumen View is asking an internet-based company to not use any of their computers if they don't settle, which is exactly
the "hey, it'd be a shame if anything happened to your business" routine. The entire point of the discovery process in situations like this is often to make life hell on the target company, the threat of which causes it to settle. It's a form of extortion by any reasonable definition of the word.
The great thing is that O'Connor doesn't appear to care.
"There's a lot of outrageous stories, but everyone's so damn afraid of coming forward—It's like going against the Mafia," he said. But the idea that trolls may retaliate against those who speak out is overblown, he thinks. "If they want to try to teach me a lesson, go for it. This will be my retirement. I'll fight them."
If it's a rallying cry to the larger innovative world to fight patent trolls, it needs a first-blood victory behind it to really motivate the troops. Here's hoping O'Connor is victorious. Oh, and sorry for all the hate-criming going on in this post. It's so hard to call a troll a troll these days.