For East Texas Patent Lawyers: Maybe Next Time Don't Sue Random Open Source Developers

from the just-a-thought dept

Back in June, we noted a curious addition to a rather typical patent troll-type lawsuit filed in East Texas. Along with a bunch of big name companies (Google, Yahoo, AOL, Amazon, etc.) were two "unknown" or at least little known companies that happened to be based in East Texas. The reasoning seemed pretty obvious. Courts have been given a bit more leeway in transferring patent lawsuits lately, after years of attempts by patent hoarders to have them all in East Texas (notoriously friendly to patent holders). So, what better way to insist that East Texas is a good place for the lawsuit than to include some East Texas companies (any ones will do!)? Except, it appears that the lawyers for the patent holder (McKool Smith -- a favorite among the patent hoarders) didn't do much research on at least one of those "companies," named CitiWare. Slashdot alerts us to the fact that CitiWare was basically just a small open source project from one guy, who hoped to turn it into a business, but couldn't find any customers and shut it down. That guy has now turned the CitiWare.com website into an angry open letter to the patent holder and to its lawyers, demanding that they drop the case against him. Next time, perhaps those busy lawyers in East Texas will actually take the time to figure out if the companies they're suing exist, let alone infringed on whatever bogus patent they're representing.


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  1.  
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    aguywhoneedstenbucks (profile), Jul 28th, 2009 @ 8:03am

    I'm going to ride over to Longview and buy this dude a beer this afternoon.

     

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  2.  
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    Anonymous Coward, Jul 28th, 2009 @ 8:52am

    East Texas should be sued out of existence for all the patent damage they have caused.

     

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  3.  
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    Shawn (profile), Jul 28th, 2009 @ 9:00am

    I think I should patent the process for filing a patent lawsuit in East Texas :)

     

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  4.  
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    Anonymous Coward, Jul 28th, 2009 @ 9:14am

    Since the Eastern District has been losing hold of the cases, the attorneys have started to sue multiple parties all at once, and the court's rationale for keeping the case in Texas is that the location is relatively "central" to the parties. It's such bullshit because now attorneys are naming parties that have nothing to do with the case just so they can keep the case in Texas.

    Regardless, patent attorneys are your worst nightmare. We have the tenacity of attorneys and the calculation of engineers.

     

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  5.  
    identicon
    Ryan, Jul 28th, 2009 @ 9:22am

    Re:

    This tactic doesn't seem all that calculated so much as obvious bullshit. It's like that saying--if you can't baffle them with brilliance, befuddle them with bullshit.

     

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  6.  
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    Anonymous Coward, Jul 28th, 2009 @ 9:25am

    I don't get it. The patent is over a Cache? Other than the fact that this poor guy did nothing other than trying to build a company in Texas (so much for enabling innovation), how can someone patent that? The sad part is that Amazon, Google and Yahoo will probably settle. Don't know about PayPal, but the others have a history of settling in these sort of ridiculous cases.

     

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  7.  
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    TheStupidOne, Jul 28th, 2009 @ 9:29am

    Countersue

    For libel, slander, attorney fees, lost time at work, and anything else a clever lawyer can throw in.

     

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  8.  
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    Dark Helmet (profile), Jul 28th, 2009 @ 9:43am

    Re: Countersue

    "For libel, slander, attorney fees, lost time at work, and anything else a clever lawyer can throw in."

    And then, just for fun, include the government of Tibrion III, hiding just outside of our solar system, so that you can get the case heard in the proper jurisdiction, which would obviously be somewhere near Orion's belt.

    Idiots.

     

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  9.  
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    Anonymous Coward, Jul 28th, 2009 @ 9:53am

    Re:

    Then sue someone in Eastern Texas if they use infringe upon your idea.

     

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  10.  
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    Anonymous Coward, Jul 28th, 2009 @ 9:55am

    seriously

    if this isn't overreach I don't know what is. The judge should throw the damned suit out.

     

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  11.  
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    Paul Stout (profile), Jul 28th, 2009 @ 9:57am

    Re:

    Regardless, patent attorneys are your worst nightmare. We have the tenacity of attorneys and the calculation of engineers.
    -------------------
    You forgot to mention greed and an obvious total lack of concern about the effect of said greed upon any business or person. They could care less about who they hurt so long as they get their money.

    Just another reason these days why so many people rank lawyers as being lower than dog shit.

     

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  12.  
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    angry dude, Jul 28th, 2009 @ 10:01am

    Open Source ???? Hmm...

    Using Open Source code is not a valid defense against patent infringement... IF infringement indeed took place, it only makes it a lot easier to find

    We are talking possible Rule 11 Sanction for plaintiff IF they are unable to show suffucient pre-filing due diligence in asserting patent infringement

    I can only dream that some fool out there reads my patent and incorporates some of the claim material into an open source product and starts distributing it... - piece of cake !!!

    Again, being Open Source is NOT a valid defense

    What's really unusual about this case is that the original complaint DID NOT mention any infringing products
    I will definitely follow this case to see how it turns out

    Rule 11 Sanction for patent plaintiff or not ?
    Any lawyers out there ?

     

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  13.  
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    Hulser (profile), Jul 28th, 2009 @ 10:12am

    Re: Open Source ???? Hmm...

    Using Open Source code is not a valid defense against patent infringement

    I think the main point is not that the company being sued is open source, but rather that it no longer exists.

     

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  14.  
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    angry dude, Jul 28th, 2009 @ 10:25am

    Re: Re: Open Source ???? Hmm...

    Doesn't matter

    If company existed at some point AND infringed on a patent in question then it can be sued for past patent infringement for some period of time

    The only serious issue here is whether or not the patent inquestion was actually infringed by defendant, or maybe it was just a contributory infringement (e.g. distributing open-source products he did not developed himself)

    The judge will ask for proof of actual infringement.
    With open source you don't need a lengthy discovery procedure - just open a source code file in your favorite editor and show the place which infringes
    The sourece code should be available to all parties - it's GPL after all

    Heck, post it here or on Slashbot and let everybody see it.
    it's not my exact technical niche but I still can map the patent claims to the actual code lines

    Looking forward to reading further court proceedings....

     

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  15.  
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    Paul Brinker, Jul 28th, 2009 @ 10:26am

    The man is the company

    I was reminded in business law class that in some cases the person is the company, This is most common in one man shops running on small budgets where even an LLC would cost to much.

    While he is no longer doing business under his company, so long as he is alive his company is as well.

     

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  16.  
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    Anonymous Coward, Jul 28th, 2009 @ 10:34am

    He never did any business..he never had a customer and only did personal projects.

     

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  17.  
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    Dez (profile), Jul 28th, 2009 @ 10:48am

    Re:

    I'll go halfsies in that with you!

     

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  18.  
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    Ryan, Jul 28th, 2009 @ 10:48am

    Re: Re:

    Well, the people they're suing are paying voluntarily. That these lawyers are able to get it in a method so obviously asinine means we need to change the system; blaming them for making theirs legally gets us nowhere.

     

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  19.  
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    Dez (profile), Jul 28th, 2009 @ 10:52am

    Match is being sued?

    Match.com in my understanding is owned and operated by a larger organization. So my question is: why is match being sued and not the parent company?

    Also, the patent in question was filed in 1999, 4 years after match started.

    Source:
    http://wapedia.mobi/en/Match.com

    Obviously I'm making duh statements. Maybe we should start calling them patent pirates and let the RIAA deal with them.

     

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  20.  
    identicon
    Anonymous Coward, Jul 28th, 2009 @ 11:14am

    SLEEEZ

    McKool Smith = SLEEEZE

     

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  21.  
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    Ronald J Riley (profile), Jul 28th, 2009 @ 11:51am

    Another entitlement minded open source type.

    Now, I want everyone to know that I having nothing against open source which is not built on the rotten foundation of theft of others inventions. I think it serves as a nice counter balance to big corporations who have in many cases built their fortunes on theft of others inventions.

    I have yet to see anyone file a patent suit without having good reason to believe a company is infringing. The reason is simple, in that bringing suits is an expensive process.

    McKool Smith is well known as a reputable firm. We have a known good player suing, alleging infringement, and an unknown open source defendant belligerently crying that they are innocent.

    Big and small infringers all whine that they are innocent. How many people think that companies like Microcrap and Research in Slow Motion (who repeatedly has found itself late to the invention table for technology) are innocent?

    One problem independent inventors face is that some firms have been known to hide conflicts of interest and to make mistakes which do in their small inventor clients. They then go on to represent the infringer, presumably making big bucks in the process.

    There most certainly is no shortage of asset thieves, spanning the globe from open source to really large transnationals.

    One thing is certain, and that is that neither I or anyone else on TechDIRT has enough information to judge who is right in this dispute. That is why we have courts and appeals. While the system is not perfect it is definitely better than mob rule like we see on TechDIRT.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  22.  
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    Ronald J Riley (profile), Jul 28th, 2009 @ 12:01pm

    Attorneys & Patent Attorneys

    "Regardless, patent attorneys are your worst nightmare. We have the tenacity of attorneys and the calculation of engineers."

    Many patent litigators are not patent attorneys. In any event there is a joke in the industry is that some patent attorneys are engineers first and attorneys second. They tend to draft patents and not litigate.

    The second group are attorneys first and engineers second. They tend to be litigators or licensing specialists.

    The point is that there are many different kinds of attorneys associated with intellectual property and it is impossible to pigeon hole them.

    This is another example of how TechDIRT forums spew utter nonsense about patents.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

    reply to this | link to this | view in thread ]

  23.  
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    Dark Helmet (profile), Jul 28th, 2009 @ 12:23pm

    New TechDirt Rule

    As decreed by Lord Helmet:

    Your comment must be constructed of four times as many characters as your signature.

    That is all.

     

    reply to this | link to this | view in thread ]

  24.  
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    Shawn (profile), Jul 28th, 2009 @ 12:26pm

    Re: Another entitlement minded open source type.

    [i]I have yet to see anyone file a patent suit without having good reason to believe they could cash in on other peoples progress. The reason is simple, hoarding questionable patents and suing anyone who innovates with a similar process is much more profitable than innovating on your own.[/i]

    fixed that for ya

     

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  25.  
    identicon
    Anonymous Coward, Jul 28th, 2009 @ 12:26pm

    Re: Another entitlement minded open source type.

    Rather difficult to take you seriously when your mindset appears to be "Every business is open for lawsuits once we find the right dirt".

    Especially when you're of the mind that ALL patent lawsuits are 100% correct.

     

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  26.  
    identicon
    NullOp, Jul 28th, 2009 @ 12:37pm

    Humph!

    And the company didn't even exist. I love the line spoken by Burgess Meridith in one of the "Rocky" movies, I believe: "If you added up their IQ's they'd probably break a hundred!" He was referring to some legal types, btw.

     

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  27.  
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    Kevin, Jul 28th, 2009 @ 12:57pm

    Re: Open Source ???? Hmm...

    Using Open Source code is not a valid defense against patent infringement... IF infringement indeed took place, it only makes it a lot easier to find

    It's not a matter of him claiming open source as a defense. It's a matter of him claiming that the never had a product or customers, and that therefore they're clearly suing him just to have someone in East Texas to sue. Whether that is true or not, I don't know, but I would not be surprised to see that it is.

    From what I've read of the patent it looks to be so broad and obvious that any number of companies would have independently arrived at the same design, and judging from who is being sued it looks like they probably did. I wouldn't be surprised at all if the litigants took the mindset that "the patent is so vague that virtually every tech company is an infringer" and then threw some names on the suit figuring that they would sort out the details later.

     

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  28.  
    identicon
    Anonymous Coward, Jul 28th, 2009 @ 1:26pm

    Re: Attorneys & Patent Attorneys

    I don't know why you divide it based on the word "attorney." Most of my colleagues tend to think of it as Patent Attorneys is the superclass, with the 2 subclasses being "patent litigators" and "patent prosecutors." While I understand that patent litigators are not necessarily engineers, most of them are.

    As for the rationale that the Eastern District takes, they pull so much bullshit that it's hard to take them seriously. They construed a choice of law clause that said the parties would litigate in X jurisdiction under X forum's laws (which wasn't the Eastern), and the Eastern said that because the word "exclusive" was never used, the clause was merely a suggestion of one possible jurisdiction -- and so the Eastern District was a viable forum.

     

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  29.  
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    Dark Helmet (profile), Jul 28th, 2009 @ 1:59pm

    Re: Re: Open Source ???? Hmm...

    "From what I've read of the patent it looks to be so broad and obvious that any number of companies would have independently arrived at the same design, and judging from who is being sued it looks like they probably did."

    That's what I've NEVER understood about the way that obviousness applies IP law. How can I say, "I have a unique, wonderful design/whatever that I independently innovated in what is clearly my UNIQUE genius, and now I'm suiing these 22 companies that all came up with the same thing."

    Why can't the number of companies these jackasses are including in their lawsuits be used as a logical refutation of the patent claim?

     

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  30.  
    identicon
    CleveName, Jul 28th, 2009 @ 5:30pm

    Re: Re: Re: Open Source ???? Hmm...

    "That's what I've NEVER understood about the way that obviousness applies IP law. How can I say, "I have a unique, wonderful design/whatever that I independently innovated in what is clearly my UNIQUE genius, and now I'm suiing these 22 companies that all came up with the same thing.""

    The other companies obviously stole your idea somehow and therefore you are entitled to rake them over the coals.

     

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  31.  
    identicon
    ..., Jul 28th, 2009 @ 5:34pm

    Re:

    "He never did any business..he never had a customer and only did personal projects."

    It doesn't matter - they can get you for even thinking about their ideas. They do own the copythought you know.

     

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  32.  
    identicon
    CleverName, Jul 28th, 2009 @ 5:40pm

    Re: Another entitlement minded open source type.

    "Now, I want everyone to know that I having nothing against open source "

    - As was pointed out in a prior post, open or not - it doesn't matter. So why open with such a condescending line?

     

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  33.  
    identicon
    angry dude, Jul 28th, 2009 @ 8:14pm

    Re: Re: Re: Open Source ???? Hmm...

    Punky,

    perhaps you should know how high-tech business is run nowadays..
    Suppose there is a technical problem, a long-standing problem companies tried to solve for years ..

    One day somebody invents a solution to the problem, a novel and unobvious solution, and patents it of course

    All patents are published on the internet for the world to see

    What happens next ?

    All manufacturers copy solution without bothering asking for license

    Then comes litigation...

    They all claim they invented it independently

    And angry techdirt punks start shouting...

    Examples ?

    56K modem patents issued to Townshend, wi-fi patents issued to CSIRO, etc. etc.

    Just remember one thing, punky

    For each tryly unobvious patent the entire industry needs to be sued to recover due compensation

    This was true back in Eli Whitney times and it is true today

     

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  34.  
    identicon
    Tech Dirt Lemming Punk, Jul 28th, 2009 @ 8:56pm

    Re: Re: Re: Re: Open Source ???? Hmm...

    Generalizations are easy to spew,
    There never really is anything new.
    If you had anything substantial to say,
    Heh - that would be the day.

     

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  35.  
    identicon
    Nick Robinson, Jul 29th, 2009 @ 12:31am

    Am I Reaching?

    Hi there, I found your blogpost very interesting.i am Nick Robinson,a community member at Patents Dot Com Will like to talk(through email) to you,is this the right time to talk about or should we talk during weekends ? Best-Regards, Nick Robinson nickrbson@gmail.com

     

    reply to this | link to this | view in thread ]

  36.  
    identicon
    Wesley Parish, Jul 29th, 2009 @ 3:24am

    Even more obvious than the nose on your face

    I took one read of the scope of the patent, and immediately thought of C.J. Date's book , "An Introduction to Database Management Systems" - a copy of the first edition and the seventh of which I have. C.J. Date goes into some detail on the physical and logical details of database structures, and he mentions precisely that sort of data structure. Come to think of it, Elmasri and Navathe do as well, and probably everyone who's ever written a University textbook on database systems.

    It's clear the USPTO never bothered to read such a book before issuing the patent. It would've invalidated it right away. So can we get the USPTO for fraud?

     

    reply to this | link to this | view in thread ]

  37.  
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    Almost Anonymous (profile), Jul 29th, 2009 @ 11:59am

    Re: Another entitlement minded open source type.

    """One thing is certain, and that is that neither I or anyone else on TechDIRT has enough information to judge who is right in this dispute."""

    Wrong. I have enough information to judge that suing this particular fellow (CitiWare) in conjunction with all the rest is a blatantly transparent ploy to keep this lawsuit within the notoriously patent-friendly East Texas District.

    Riley, surely even you can see that.

     

    reply to this | link to this | view in thread ]


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