Predictive Text Patent Troll Tries To Shake Down Wikipedia
from the not-a-good-idea dept
WordLogic is a patent troll. The company has been around for a while and holds a bunch of patents (such as US Patent 7,681,124) which it claims covers the concept of predictive text writing. While WordLogic is (was?) a publicly listed company, the stock is currently worth $0.0001 per share. About the only news about the company has to do with hiring patent lawyers and failing to live up to bragging press releases.
The company has spent the last few years filing a whole bunch of patent shakedown lawsuits. A quick glance shows 12 federal cases involving the ‘124 patent, and they don’t appear to have gone all that well for WordLogic. I didn’t check all of the cases to see how they ended up, but I haven’t come across one that they’ve won yet. Two cases are notable. Unified Patents asked the patent office to review the patent, saying it should never have been granted in the first place. The PTAB (the review board) came out with an initial ruling that the patent was likely invalid, at which point, WordLogic suddenly found religion and “settled” the case before the PTAB could issue a final ruling on the validity of the patent.
But that meant that WordLogic could continue to shake down companies with that patent. Indeed, it looks like 9 of the cases over the ‘124 patent were filed after the review was “settled.” In one case, against Fleksy, WordLogic’s lawyers were facing Rule 11 sanctions in which Fleksy highlights that nothing it does comes anywhere near what the patent asserts and that WordLogic knew this. Just a snippet:
Fleksy invites the Court?s attention to the brief filed in opposition to this motion. It is a guarantee that there will be nothing in the realm of evidence that Fleksy does this. But, more importantly, counsel for Plaintiffs will be unable to cite anything non-evidentiary to convince this Court that he had a ?good faith? basis to believe that the app he accused of infringing this patent claim actually satisfies the recited element. A thirty-second review of the app would have confirmed that multi-level search or anything close to it simply does not occur and has never occurred on Fleksy?s app. There isn?t an iota of evidence in the public domain that could plausibly support a reasonable belief that discovery would uncover such evidence. Any bare bones pre-filing investigation would have revealed to counsel that on Fleksy?s app, when a user accepts a completion candidate, the app inserts the word, then inserts a space bar after the word, and then awaits the user?s entry of a brand new word. It does not obtain and display a list of further completion candidates. That is, the Fleksy app does not process a user selection of a completion candidate as a request by the user to continue searching for further completion candidates, i.e., multi-level search of the sort explained in the ?152 patent specification and claimed in claim element (h) of Claim 19.
And then this:
Here, the accused product is a mobile app that was freely and easily available for download and inspection at the time Wordlogic?s counsel filed this patent lawsuit. For zero dollars and ten minutes of his time, counsel could have confronted the factual realities about Fleksy?s app that Fleksy has detailed in this brief. These factual realities collide head first with entire claim elements recited in the two patents-in-suit.
This is all pretty typical of an out-and-out patent troll. Focus on shaking lots of companies down for a license fee, and sue a few hoping for a big win or to convince someone to pay up to settle the suit… but it turns tail and runs the second things start to look bad.
Its latest target… was not wise. WordLogic sent a shakedown threat letter over the same patent to Wikimedia Foundation. The letter itself is fascinating as a perfect example of how patent troll shakedown normally works. It starts out with grand claims about WordLogic’s patents, and insists that Wikipedia infringes on one specific claim (#19 in the ‘124 patent), but then says “likely other claims in the WordLogic patents.” That sort of vagueness is pretty typical of trollish thuggery. The threat letter blusters about how the company is a “global leader” in the field — which is laughable given that the company appears to have made literally zero revenue for the last two years that it disclosed its income statements publicly.
The letter references the Fleksy case, calling it “ongoing litigation” which is odd, considering that that the case was dismissed with prejudice nearly two years before this shakedown letter was sent. I’m not up on legal ethics rules, but I’m curious if it’s at all appropriate for a legal threat letter to claim that there’s ongoing litigation two years after the case was dismissed.
In the end, the letter demands… $30,000. This kind of fee is typical of patent trolls, because they know damn well that litigating this (even to an easy victory) will cost Wikipedia significantly more than $30,000. Thus, the economical choice is to just pay up and move on. That’s what’s so scammy about WordLogic and this legal threat from lawyer Artoush Ohanian:
We recognize that WIKIPEDIA has several options for addressing WordLogic’s infringement concerns, including litigation and/or WIKIPEDIA attempting to invalidate the patents by filing an Inter Partes Review (IPR) with the Patent Office. Although we are confident in the validity and infringement of the WordLogic patents, we appreciate the inherent risks and costs to a patent owner in pursuing litigation and/or facing the uncertainties of IPR proceedings. To that end, and to encourage the continued use of WordLogic patented technology, WordLogic is offering a discounted, lump sum fee of $30,000 in exchange for a paid-up one-time license.
That, right there, is a quintessential patent troll shakedown paragraph. Gee, we know that challenging this patent and going to court is expensive and uncertain — so why not just pay us to leave you alone. Disgusting. And I’ll note that while it misleadingly mentions the Fleksy litigation, it leaves out the settled IPR process in which the PTAB said that patent was likely invalid. I wonder why…
Wikipedia, correctly, is not one to give in to such trollish bullying. It turned around and went to court asking for declaratory judgment that it does not infringe on the patents that WordLogic was waving around. Wikimedia notes that (1) WordLogic’s patents are invalid due to prior art, (2) that they are invalid for not covering patentable subject matter, and (3) that anyway, it doesn’t even infringe on the patents if they were valid.
The claims of the Asserted Patents are invalid under 35 U.S.C. § 102 and/or 103(a). For example, the Patent Office determined to institute IPR2017-01856. In reaching that decision, the Patent Office considered prior art references to the Asserted Patents, including U.S. Patent No. 5,724,457 (?Fukishima?), U.S. Patent No. 5,367,453 (?Capps?), U.S. Patent No. 6,307,548 (?Flinchem?), U.S. Patent No. 5,797,098 (?Schroeder?), and John J. Darragh & Ian H. Witten, Cambridge Series On Human- Computer Interaction, The Reactive Keyboard 3 (J. Long ed. 1992) (?Witten?). The Patent Office determined that it would review the claims of the ?124 patent because it found that these prior art references established a reasonable likelihood that the claims of the ?124 patent were unpatentable under 35 U.S.C. § 103(a). These same prior art references also establish that the claims of the other Asserted Patents are invalid.
The claims of the Asserted Patents are also invalid under 35 U.S.C. § 101. For example, Fleksy Inc. filed a motion to dismiss on February 3, 2017 in WordLogic Corporation et al v. Fleksy, Inc., Case No. 4:17-cv-07169-JSW, in which it set forth reasons why the claims of the ?124 patent are invalid under 35 U.S.C. § 101.
The allegations of infringement made by the WordLogic Entities fail to show that Wikimedia infringes any claim of any Asserted Patent. For example, for claim 19 of the ?124 patent, the Wikipedia search box that WordLogic identifies as infringing does not perform the required step of ?obtaining and displaying in the search list a further modified plurality of completion candidates from among the group of completion candidates, if a completion candidate is accepted via the search list from the modified plurality of completion candidates.?
If WordLogic is smart (big if), it should probably come grovelling to Wikimedia promising to leave it alone. If it’s not smart and pushes forward, I can’t imagine this ending well for the “company” or its patents. Considering that the patents expire in a couple years anyway, it may try to turn tail and run again and look for someone else to shake down who it hopes will be easier prey.
In the meantime, it’s still ridiculous that Wikimedia (and anyone else) continues to have to deal with this kind of bullshit trolling activity.