Company Threatens EFF With Defamation In Response To EFF Trying To Bust Its Patent

from the slappity-slapp-slapp dept

Back in January, we noted that the EFF had scored another hit in its ongoing patent-busting project, getting the USPTO to re-examine a patent held by Seer Systems. It appears that Seer Systems doesn't much like being targeted by the EFF and decided to threaten the group with a defamation lawsuit over how it described Seer's actions. For example the EFF claimed that Seer was "threatening small companies" and Seer disputes the EFF's definition of small. That seems like pretty fine tooth nitpicking there, and hardly defamatory. It certainly feels like a threatened SLAPP, and (luckily) California has a pretty good anti-SLAPP law, which the EFF's attorney has suggested that Seer Systems acquaint itself with before moving forward with any lawsuits. Either way, it's fairly amazing that anyone would think it's a wise move to threaten the EFF with defamation based on something as weak as whether or not some startup is "small" or not.
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Filed Under: anti-slapp, california, defamation, eff, patents, slapp
Companies: eff, seer systems

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  1. identicon
    Neutral on Seer, 7 Mar 2009 @ 8:21am

    Bad Moves, Seer

    This is somewhat reminiscent of the whole Troll Tracker incident, where the then-anonymous blogger was threatened by Ray Niro for disparaging the validity of the "JPEG-on-a-website" patent. These are almost always stupid moves by patent owners, because they elevate the patent to a higher level of prominence which causes more people to look at the patents, better prior art to be located and submitted to the PTO, raising the chances of the patent being declared invalid. As a member of the technical legal community myself, I can tell you that many knowledgeable people out there who didn't know anything about Seer are now going to take a really hard look at Seer's '274 patent.

    I think that only one of the statements attributed to EFF identified in Seer's letter is even arguably a possible subject of a defamation claim -- the statement that Seer is "threatening small companies trying to innovate in this field, like Beatnik." The only fault the letter can draw with this statement is not that it threatened companies trying to innovate in this field (it did), but that the three companies it threatened (Beatnik, Microsoft and Yamaha) were not "small." I think that's pretty weak sauce, frankly. I would agree that Yamaha and Beatnik are both "small" companies when you compare them to the other companies in the music distribution area. And their claim that Beatnik is not "small" because it received $40M in investment funding over a two year period is laughable. That kind of funding is the very definition of a "small" tech company.

    The other statements are more directed at the patent and the patent system itself, such as claiming that it "threatens" public standards, and the more general statement that bad patents are "crimes against the public domain" (which is directed more generally at all of the patents that are the subject of the program). These are not actionable as they are merely opinions which you cannot be proven objectively false. The final portion of the letter also weakly takes issue with the suggestion that the patent inventor failed to identify his book on music publishing to the Patent office, without actually contesting the accuracy of any factual statements by EFF on this issue (and therefore effectively confirms them).

    But I think EFF needs to do a better job of vetting patents for inclusion in its "Patent Busting" project, though, because they're not going after the patents most deserving of their attention. The Seer patent has been up on EFF's website for the Patent Busting project for a few years now. If it is true, as the letter states, that Seer has only threatened three companies on the '274 patent, it was a really bad choice. There are tons of patents out there that are being used to threaten hundreds if not thousands of companies, which EFF hasn't touched. EFF never even had the JPEG-on-a-website patent as part of its project, even though that patent has always had ten times the destructive potential of the Seer patent.

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