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…

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Comments on “Lawyer Stupidly Sues EFF For Defamation After It Called His Stupid Patent Stupid”

Subscribe: RSS Leave a comment
tqk (profile) says:

Re: Need some serious research here...

What “law” school is turning out these lawyers?

What law schools are failing to stop letting these lawyers be turned out? Why aren’t the good lawyers all doing the Ken “Popehat” White thing and hunting these jerks down? How can good lawyers stand it that their hard work and dedication has to fight uphill against the horrible reputation all the ambulance chasers have given their profession?

Why did it take so long for the judges’ righteous indignation to finally well up and focus on Prenda?

Why aren’t the good lawyers declaring open season on these bums and cleaning up the mess? It happens in just about every other profession. Why not in the legal profession?

Anonymous Coward says:

Re: Re: Need some serious research here...

‘Good’ (used under advisement) lawyers don’t want bad lawyers to go away, because it makes them look better.

PLUS if the majority of lawyers are bad, then the good(as in reasonable ability not as in nice) ones have a much bigger chance of being set against one in a case and therefore giving them a thorough and complete drubbing.

David says:

It's a sign of a failing patent system

when somebody too stupid to find his head in a barrel is able to get a patent awarded basically by just hitting the “Send” button.

I have to admit that the EFF might have done him injustice by claiming that he has been gaming the system.

If you don’t watch your step when entering the patent office, you’ll get pelted with patents. That’s not “gaming the system” since the system is working exactly like it has been set up to work. Patent examiners have a quota to fulfill, and they don’t get a bonus for spending a significant amount of time on examining patents, particularly not if they are going to reject them.

mcinsand (profile) says:

Re: Re: Re: subverting the constitution


I hate to break it to you, but subverting our Constitutional protections is a fully bipartisan effort. For every Mitch McConnell on one side, there is a Dianne Feinstein on the other. My firm belief is that we won’t improve until voters start falling for the parties’ BS when they try to claim that one has different goals from the other.

DannyB (profile) says:

Re: Re: Re: It's a sign of a failing patent system

If you believe the problem is either party then you have fallen right into their trap.

Google for this video: ted talks lesterland

Short summary: the rich people control which candidates you get to vote for long before you ever get to vote.

“I don’t care who does the voting as long as I get to do the Nominatin'”

That One Guy (profile) says:

Re: Nothing 'one-sided' about presenting the facts

Probably because he did. In fact in the email itself, first page, he argues that he doesn’t have an obligation to provide information relevant to a patent, making it abundantly clear that he absolutely did, knowingly, withhold information that could have impacted the acceptance of the patent in question.

Anonymous Coward says:

Yo Scottster

I understand you have taken exception to the EFF saying “[you have] shown advanced skill at gaming the patent system”. I’m sure they’re very sorry. I ask you to note that they did not call you an ass-carnivore, depraved patent troll, or a low-born gutter slut. But they did say “advanced skill”. No escaping that. Would the great taste of a Charleston Chew candy bar make everything better for you?

RENTNdotORG (profile) says:

gaming the system

I would like to point out that I was sued for the phrase “gaming the system” over a year before the EFF was. Therefore, I contend I hold the SLAPP copyright to this statement and am entitled to the resulting victim-hood and all the resulting benefits.(Or maybe I mean trademark. Patent? When I have the opportunity, I call an opportunistic lawyer and find out.)

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