New Hampshire Court: First Amendment Says You Can Call A Patent Troll A Patent Troll

from the what-about-defamation-troll? dept

A New Hampshire state court has dismissed a defamation suit filed by a patent owner unhappy that it had been called a “patent troll.” The court ruled [PDF] that the phrase “patent troll” and other rhetorical characterizations are not the type of factual statements that can be the basis of a defamation claim. While this is a fairly routine application of defamation law and the First Amendment, it is an important reminder that patent assertion entities ? or “trolls” ? are not shielded from criticism. Regardless of your view about the patent system, this is a victory for freedom of expression.

The case began back in December 2016 when patent assertion entity Automated Transactions, LLC (“ATL”) and inventor David Barcelou filed a complaint [PDF] in New Hampshire Superior Court against 13 defendants, including banking associations, banks, law firms, lawyers, and a publisher. ATL and Barcelou claimed that all of the defendants criticized ATL’s litigation in a way that was defamatory. The court summarizes describes the claims as follows:

The statements the plaintiffs allege are defamatory may be separated into two categories. The first consists of instances in which a defendant referred to a plaintiff as a “patent troll.” The second is composed of characterizations of the plaintiffs’ conduct as a “shakedown,” “extortion,” or “blackmail.”

These statements were made in a variety of contexts. For example, ATL complained that the Credit Union National Association submitted testimony to the Senate Committee on the Judiciary [PDF] that referred to ATL as a “troll” and suggested that its business “might look like extortion.” The plaintiffs also complained about an article in Crain’s New York Business that referred to Barcelou as a “patent troll.” The complaint alleges that the article included a photo of a troll that “paints Mr. Barcelou in a disparaging light, and is defamatory.”

ATL had filed over 50 lawsuits against a variety of banks and credit unions claiming that their ATM machines infringed ATL’s patents. ATL also sent many demand letters. Some in the banking industry complained that these suits and demands lacked merit. There was some support for this view. For example, in one case, the Federal Circuit ruled the several of ATL’s asserted patent claims were invalid and that the defendants did not infringe. The defendants did not infringe because the patents were all directed to ATMs connected to the Internet and it was “undisputed” that the defendants’ products “are not connected to the Internet and cannot be accessed over the Internet.”

Given the scale of ATL’s litigation, it is not surprising that it faced some criticism. Yet, the company responded to that criticism with a defamation suit. Fortunately, the court found the challenged statements to be protected opinion. Justice Brian T. Tucker explained:

[E]ach defendant used “patent troll” to characterize entities, including ATL, which engage in patent litigation tactics it viewed as abusive. And in each instance the defendant disclosed the facts that supported its description and made ATL, in the defendant’s mind, a patent troll. As such, to the extent the defendants accused the plaintiffs of being a patent troll, it was an opinion and not actionable.

The court went on to explain that “patent troll” is a term without a precise meaning that “doesnt enable the reader or hearer to know whether the label is true or false.” The court notes that the term could encompass a broad range of activity (which some might see as beneficial, while others see it as harmful).

The court also ruled that challenged statements such as “shakedown” and comparisons to “blackmail” were non-actionable “rhetorical hyperbole.” This is consistent with a long line of cases finding such language to be protected. Indeed, this is why John Oliver can call coal magnate Robert Murray a “geriatric Dr. Evil” and tell him to “eat shit.” As the ACLU has put it, you can’t sue people for being mean to you. Strongly expressed opinions, whether you find them childish or hilariously apt (or both), are part of living in a free society.

Justice Tucker’s ruling is a comprehensive victory for the defendants and free speech. ATL and Barcelou believe they are noble actors seeking to vindicate property rights. The defendants believed that ATL’s conduct made it an abusive patent troll. The First Amendment allows both opinions to be expressed.

Reposted from EFF’s Deeplinks blog

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Companies: atl, automated transactions llc

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Comments on “New Hampshire Court: First Amendment Says You Can Call A Patent Troll A Patent Troll”

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That One Guy (profile) says:


As the ACLU has put it, you can’t sue people for being mean to you.

You absolutely can sue people for being mean to you, as the two examples(Murray and ATL) demonstrate. Whether you can win in court on those grounds is another matter entirely, but one that is, unfortunately, oftentimes besides the point as a SLAPP suit(which both of those pretty clearly were) doesn’t require a legal victory to succeed, merely the threat and costs involved for the other party.

Anonymous Coward says:

And I can call a Corporatist a Corporatist on one's site.

Supported by one constantly pushing the notion that corporations have a right to control the speech of “natural” persons in what are advertised as and obviously are Neutral Public Forums, asserting that CDA 230 authorizes unlimited corporate power over the internets, a clear violation of the simple common law principle that corporations are only to SERVE The Public, not means to de facto censorship.

Directly on the topic: Masnick is so desperate for good news that ran this “dog bites man” piece. — That, and it’s FREE content.

Anonymous Coward says:

The court also ruled that challenged statements such as "shakedown" and comparisons to "blackmail" were non-actionable "rhetorical hyperbole." This is consistent with a long line of cases finding such language to be protected. Indeed, this is why John Oliver can call coal magnate Robert Murray a "geriatric Dr. Evil" and tell him to "eat shit."

No, it’s not. Telling someone to "eat shit" isn’t any kind of hyperbole, nor anything resembling a statement of fact. It’s not defamatory because it doesn’t say anything at all about the person. Nor does calling someone "Dr. Evil", really; it might imply the person is evil, but it might simply imply they resemble Mike Myers in that makeup (Like when people called Larry O’Brien "Lex Luthor"). It’s too vague.

Anonymous Coward says:

Re: Re: Re:

hyperbole (noun) exaggerated statements or claims not meant to be taken literally.

You’re parsing this wrong; it’s an ambiguous defintion. That’s "exaggerated (statements or claims), not meant to be taken literally". Reading "claims not meant to be taken literally" as a standalone clause would not be correct, and would not be consistent with the etymology ("hyper" meaning "above").

Hyperbole refers to overstatement specifically, usually in count or intensity. The examples use other non-literal non-actionable rhetorical devices.

Anonymous Coward says:

Reminds me of the Brit who was haled into magistrate’s court for calling a noblewoman “pig”. The magistrate fined him.

“So that means I can’t call a duchess “pig”?” he asked.

“No, you can’t,” the magistrate explained.

“But can I call a pig “duchess”?


So he strolled out of the courtroom, nodding to the plaintiff and saying “Good day, duchess.”

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