Patent Holders Trying To Drag 3rd Parties Into Patent Disputes

from the troll-expansion dept

If you thought bogus patent lawsuits were crazy now, just wait and see what might happen if a court rules the way two companies are arguing they should. The EFF has filed an amicus brief in two cases in which patent holders are arguing that they can drag third parties into patent lawsuits if those third parties do one part of a claim, while someone else does the rest. If you think about this, and are aware of current patent lawsuits, this is a horrifying prospect. Think Lodsys on steroids, where individual consumers could be sued for patent infringement, merely for making use of what a service provider offers. For example, in one of the two cases, Akamai is claiming patent infringement, and the issue is one claim in the patent. All of the steps of that one claim are handled by a third party... except for "tagging," which is done by users. If Akamai's argument holds, then users of Limelight's services who do "tagging" could be liable for patent infringement without having any idea at all that they're at risk, and without them even violating the vast majority of what's claimed in the patent.

While the patent holders are claiming that without this the patents would be unenforceable, the EFF filing reasonably argues that the problem is that the patents were drafted poorly, and patents should make clear that when they list out a series of steps, those steps are performed by a single party. The arguments by the patent holders would put almost everyone at risk of being directly liable for patent infringement without them realizing it. We see broad patent claims asserted against various internet companies all the time. Imagine if every user of those services could suddenly be sued for infringement as well, just because clicking on a button, adding a tag or whatever, helped "infringe" on the patent in question in combination with the service provider?

As the filing notes, there is simply no social benefit to imposing liability on such third party users. They're hardly in a position to stop the infringement (let alone even know that it's going on). All they're doing is using a service that is offered to them.

Not surprisingly, one of the companies making this argument, McKesson, is using copyright law to back this fundamentally new interpretation of patent law. Specifically, McKesson cites the Supreme Court's terrible Grokster decision on third party liability, and is trying to extend it to patent law. Of course, McKesson does not even properly cite Grokster, falsely claiming that Grokster claims "a defendant's decision to profit from infringement 'while declining to exercise a right to stop or limit it'" makes one liable. That's simply not the Grokster rule at all. Grokster set out a specific set of criteria under which a third party would be liable, but "declining to exercise a right to stop or limit" is not nearly enough.


Reader Comments (rss)

(Flattened / Threaded)

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    That Anonymous Coward (profile), Aug 12th, 2011 @ 4:18am

    It appears our greatest innovation is now finding new ways to use laws to sue each other.

     

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    identicon
    The Old Man in The Sea, Aug 12th, 2011 @ 4:37am

    Hand a man a rope and he'll try to hang everyone with it.

    Modern Man - Doomed to extinction?

    As has been said many times by many people - be very careful what you wish for.

    They do say Summer is The Silly Season. I think it has now got to change to This Century is The Silly Season.

    So many stories showing that when fools rule, foolishness follows.

    Nothing against Jews or Moslems, but modern-day lawyers are making Rabbi's and Imam's look like complete tyros when it comes to extending law into every crooked corner of life.

    It is starting to sound like the worst days of the Roman Empire (Nero and his ilk), Nazi Germany (Hilter and his ilk) and Communist Russia (Stalin and his ilk) all rolled into one.

    Bring on 1984. The End is Nigh, The End is Nigh. (Nearer than you think)

    Live Long and Prosper.

     

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    Jose_X, Aug 12th, 2011 @ 4:47am

    So are they going to sue Mr. Prior Art?

    when 90% of the claim repeats the state of the prior art

     

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      Skeptic, Aug 12th, 2011 @ 7:22am

      Re: So are they going to sue Mr. Prior Art?

      That's not how claims work. You have to look at the claim in its totality to judge it. Everything is built on top of existing stuff, so no claim can be 100% new.

      It's likely the 10% not in the prior art is the "non-obvious" part or "inventive step".

       

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        Anonymous Coward, Aug 12th, 2011 @ 11:19am

        Re: Re: So are they going to sue Mr. Prior Art?

        Everything is built on top of existing stuff, so no claim can be 100% new.

        Sounds like a good reason to get rid of patents, then.

         

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          Skeptic, Aug 12th, 2011 @ 6:19pm

          Re: Re: Re: So are they going to sue Mr. Prior Art?

          Find out how much of Einstein's work was based on existing work, and then try to make the argument that he contributed almost nothing.

           

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        Jose_X, Aug 12th, 2011 @ 11:44am

        Re: Re: So are they going to sue Mr. Prior Art?

        >> It's likely the 10% not in the prior art is the "non-obvious" part or "inventive step".

        Right. You focus the lawsuit (and I'm not justifying a patent or the general court procedures) on the person responsible for the inventive step (if anyone can be called out on this) and not on any/all who built up pieces, that likely by themselves are unpatentable.

         

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    identicon
    Jose_X, Aug 12th, 2011 @ 5:03am

    The Founding Fathers

    clearly intended for your friendly neighbor to be judged guilty of patent violation in order to protect that helpless inventor.

    This is why the next propaganda film on American Inventors will not feature billion-dollar money men and their courtroom's load of lawyers working overtime and bribing in an effort to crush the protagonist inventor. Instead it will feature ordinary school kids "perhaps in your own backyard" hauled away by federal marshals for assembling a model airplane and other such contraband.

    Bad boys bad boys.. What ya gonna do?

     

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    Anonymous Coward, Aug 12th, 2011 @ 5:14am

    Why stop there? Why not go for 4th, 5th, 6th, Nth party liability?

    The patent troll had the hard work of buying the patent, therefore it should be paid for each time anyone uses or even mentions anything related to the patent.

    It's only fair.

     

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      anonymous, Aug 12th, 2011 @ 5:57am

      Re:

      stop talking absolute crap, please!

       

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        Some Other AC, Aug 12th, 2011 @ 6:11am

        Re: Re:

        There was obvious sarcasm in the post(Anonymous Coward, Aug 12th, 2011 @ 5:14am). Was it crap? Yes. Was it meant seriously? Not likely. Not all ACs post in here to the benefit of corporate America.

         

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          Anonymous Coward, Aug 12th, 2011 @ 6:17am

          Re: Re: Re:

          I was merely poking fun at the absurdness of the situation by suggesting an even more absurd similar situation, with a side dish of sarcasm.

          It was meant to be crappy. Most things that involve patents are, anyway.

           

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    iptrolltracker, Aug 12th, 2011 @ 5:22am

    "reasonably argues that the problem is that the patents were drafted poorly,"

    This is why, once again, the work that Article One Partners is doing is so valuable. You have to stop this nonsense at the lowest common denominator: the patent itself.

    Disclaimer: I do not work for Article One. I think they have a brilliant idea and it speaks to the (one of the) heart(s) of the matter, which is poorly drafted patents.

     

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    Kevin (PaxSkeptica) (profile), Aug 12th, 2011 @ 5:39am

    I keep coming back to this:

     

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    identicon
    Howard the Duck, Aug 12th, 2011 @ 6:29am

    Patent,Trademark, Copyright, License

    A 12 year old girl opens a lemonade stand, and uses a picture printed from a Google search of lemonade. The photo shows a bottle of Mike's next to a lemon. The girl sets up her stand, copying the layout from the Sunkist site, and using her parents Iphone, she advertises the stand hours on Craigs List. A sex offender sees the ad and comes by, the parents tell him to move on.
    The police come and shut down her stand for not having a license, then discover the Mikes picture and the Craig's list ad and prosecute Mike's Hard Lemonade executives and her parents for child endangerment. It makes the local news. Mike's takes note and her parents are sued for trademark violations. Patent and copyright lawyers from Sunkist subpoena the parents for business process patents and copyright violations.The prosecutor decides that Craig's list should be criminally liable for endangering the 12 year old and goes after them as well, when they discover someone has commented about the 12 year old advertising with her parents account, the user is summoned to court to testify on computer fraud, hacking, and the parents are hauled off to jail. Later the user that commented arrested for contributory negligence. HTC is sued by Apple for no reason. HTC sues HP for no reason.

     

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      Howard the Duck, Aug 12th, 2011 @ 6:41am

      Re: Patent,Trademark, Copyright, License

      Later, Google is sued by the world in a class action for suggesting "Obama" in a search using "Hope and Change".

       

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        identicon
        Anonymous Coward, Aug 12th, 2011 @ 6:57am

        Re: Re: Patent,Trademark, Copyright, License

        You forgot that the FBI, CIA, NBA (what? they have a 3 letter acronym too) and the TSA were given special powers that allow them to arrest at will without a warrant. For the children!

         

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          MrWilson, Aug 12th, 2011 @ 8:40am

          Re: Re: Re: Patent,Trademark, Copyright, License

          And ICE seizes the websites of all involved, including the FBI and local police websites since they allegedly contributed to the infringement.

           

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            Anonymous Coward, Aug 12th, 2011 @ 10:51pm

            Re: Re: Re: Re: Patent,Trademark, Copyright, License

            Meanwhile, Chinese officials look at all this in open-mouthed amazement. They pause occasionally to shake their heads and smirk at each other. They also make that little hand gesture which means that someone has gone mad.

             

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    The Devil's Coachman (profile), Aug 12th, 2011 @ 6:35am

    It's time to address the root of this problem!

    The root of this problem, of course, is the lawyers. They all need to be beaten with iron bars, and then hung up in gibbets until the crows peck out their eyes. That should teach them the error of their ways. I'm just here to try and help.

     

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    Captn. Patent, Aug 12th, 2011 @ 8:15am

    IPew

    This reminds me of a lecture I attended titled "Pushing the boundaries of exhaustion", not for the sake of extortion, rather for the appearance of legitimacy in extorting companies to purchase products and support. The mantra went something like this: "let's put the F in FUD" and it dominated boardroom banter.... I witnessed first hand.

    Companies like MS, BAS, PS and Oracle (to name a few) began suing each other's enterprise clients for patent infringement. The strategy seemed to work at first then indemnification became standard and so, the usual patent truce locked out innovative startups.

     

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    STJ, Aug 12th, 2011 @ 8:55am

    If you are going to be under a constant threat of lawsuits, then why pay to buy it? You're going to be sued anyway.

     

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    identicon
    Anonymous Coward, Aug 12th, 2011 @ 11:14am

    Ignorance of the law is no excuse.

    users of Limelight's services who do "tagging" could be liable for patent infringement without having any idea at all that they're at risk

    Ignorance of the law is no excuse, freetards.

     

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    ossdave (profile), Aug 12th, 2011 @ 1:06pm

    Patent Holders Trying To Drag 3rd Parties Into Patent Disputes

    oh my more lawsuits everyone is sueing everyone

     

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    Just John (profile), Aug 13th, 2011 @ 6:29am

    Facebook users arrested!

    Correct me if I'm wrong, but since Facebook has photo tagging, wouldn't that put them in the same boat?

    So, everyone who uses Facebook can now be found to infringe.

    Glad I stopped using Facebook. How many people are on there again?
    Their lawyers are going to have a field day.

     

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    identicon
    patent litigation, Aug 23rd, 2011 @ 5:42am

    inducement

    There already exists a way to sue 3rd parties -- for "inducement" of patent infringement; in this scenario, the claim steps don't all have to be performed by one party. The difference, however, between this and the situation you explore in your post is that, if I understand it correctly, the so-called "inducing" 3rd party must exercise substantial control over the actions of the main infringer.

     

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