Lawyer Stupidly Sues EFF For Defamation After It Called His Stupid Patent Stupid

from the seems-like-a-stupid-move dept

There are certain general rules about who not to attack that you should generally stick to: You should never get involved in a land war in Asia. You should never pick a fight with people who buy ink by the barrel. And perhaps now we can add: never sue the EFF for defamation for calling your patent stupid. But that appears to be exactly what Scott A. Horstemeyer is doing.

Back at the end of April, the EFF featured a patent held by Horstemeyer in its monthly "Stupid Patent of the Month." We actually reposted it ourselves. You can go back and read those original posts detailing how and why the patent is stupid. But Horstemeyer isn't happy. It apparently hurt his feelings for his little patent to be called out among all the stupid patents for extra special treatment. So he had a lawyer send a threat letter claiming that the post included "false, defamatory and malicious statements."

The letter lays out three such claims. First, saying that it's "false" to say that "patent applicants attorneys have an ethical obligation to disclose any information material to patentability." Yes, that's really a battle they want to fight: To argue that they have no ethical obligation to do so, and that to claim otherwise is somehow defamatory. This is wrong on all sorts of levels. Next, they claim that saying that "Horstemeyer has not made any genuine contribution to notification 'technology'" and that "he has shown advanced skill at gaming the patent system" is defamatory because it "impugns" him. That's not how defamation works, but okay. Finally, they object to the claim that "It appears Horstemeyer hoped the Office would not notice [the Alice] decision and would simply rubber-stamp his application."

None of these statements comes even remotely close to being defamatory. They are all either statements of opinion or, at best, hyperbole. To argue that these are defamatory is simply ridiculous.

But rather than just do the initially dumb thing of sending a threat letter, hoping it would lead the EFF to pull its story down (ha!), Horstemeyer took it a step further and had his lawyer file an actual complaint in a Georgia county court. The lawsuit repeats, verbatim, the complaints in the letter. And it goes even further, ridiculously arguing that because Mark Cuban and Markus "notch" Persson donated hundreds of thousands of dollars to EFF, with Cuban's money going to form the "Mark Cuban Chair to Eliminate Stupid Patents" (a position currently held by Daniel Nazer, who wrote the original EFF post), it shows that the "defamation" was done "with malice" and "for their own selfish financial benefit and profit."

This also makes absolutely no sense. Nazer doesn't make any additional money by calling out Horstemeyer's stupid patent for being stupid. The whole thing is nuts.

The EFF has responded by sending a letter, noting that Horstemeyer knew they were responding and still rushed to the courthouse. As the EFF rightly notes, nothing in the article is even remotely defamatory.
The Article is opinion that is absolutely protected by the First Amendment to the United States Constitution and state law, including that of Georgia and California. As your Letter does not identify any specific statement of fact that is provably false, it instead appears that your client takes issue with EFF expressing its belief that: Mr. Horstemeyer sought and was granted a "stupid" patent, - U.S. Patent No. 9,013,334 (the "'334 Patent"); that he appeared to "gam[e] the patent system" in doing so; and he may have acted unethically. While you may disagree with this opinion, it is not actionable.
It then walks, point by point, through the complaint and details why none of the claims are even remotely actionable. Following this, it notes that if Horstemeyer does not decide to drop the suit, the EFF will (quite reasonably) seek anti-SLAPP rulings, including the awarding of attorney's fees under Georgia's and California's anti-SLAPP laws:
Further, assuming that your client is able to establish personal jurisdiction over EFF and Mr. Nazer, EFF will move for an immediate determination of whether the Article is protected speech, and will further move for its attorney's fees, under the applicable anti-SLAPP statute and/or under Fed. R. Civ. P. 11. See. e.g., Cal.Civ.Proc.Code § 425.16 (California anti-SLAPP statute); 0.C.G.A. 9-11-11.1 (Georgia anti-SLAPP statute); Hindu Temple and Community Center of High Desert. Inc. v. Raghunathan, 311 Ga. App. 109 (2011) (awarding fees); Koly v. Enney, 269 Fed. Appx. 861, 36 Media L. Rep. 1513 (11th Cir. March 7, 2008) (award of attorney's fees required under Fed. R. Civ. P. 11 because allegations that conduct of corporate officers were examples of "impropriety" and a "serious conflict of interest'' were personal opinions based on the facts set out in a corporate communication to other directors).
It also notes, of course, that continuing with the lawsuit is likely to:
bring further publicity to his actions with regards to the '334 Patent, specifically his failure to disclose Judge Wu's decision to the PTO as well as his apparent belief in this and other patent applications that he is under no duty to disclose adverse court decisions regarding substantially similar patents.
You don't say...




Filed Under: anti-slapp, defamation, opinion, patents, scott horstemeyer, slapp, stupid, stupid patents
Companies: eclipse ip


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  • icon
    Violynne (profile), 3 Jun 2015 @ 7:54am

    Stupid lawyer.

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

    • identicon
      Anonymous Coward, 3 Jun 2015 @ 8:55am

      Re:

      On the planet Ajuris 5 they got rid of their lawyer problems by making lawyers face the same punishment as the defendants if they lost. I think that may have some applications here.

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

  • icon
    TheResidentSkeptic (profile), 3 Jun 2015 @ 8:17am

    Need some serious research here...

    What "law" school is turning out these lawyers? From the Prenda team to our favorite hole-digger - and now this guy?

    This school needs to be found and shut down.

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

    • identicon
      Anonymous Coward, 3 Jun 2015 @ 9:01am

      Re: Need some serious research here...

      All of them.

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

    • icon
      tqk (profile), 3 Jun 2015 @ 9:13am

      Re: Need some serious research here...

      What "law" school is turning out these lawyers?

      What law schools are failing to stop letting these lawyers be turned out? Why aren't the good lawyers all doing the Ken "Popehat" White thing and hunting these jerks down? How can good lawyers stand it that their hard work and dedication has to fight uphill against the horrible reputation all the ambulance chasers have given their profession?

      Why did it take so long for the judges' righteous indignation to finally well up and focus on Prenda?

      Why aren't the good lawyers declaring open season on these bums and cleaning up the mess? It happens in just about every other profession. Why not in the legal profession?

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

      • identicon
        Anonymous Coward, 3 Jun 2015 @ 2:24pm

        Re: Re: Need some serious research here...

        'Good' (used under advisement) lawyers don't want bad lawyers to go away, because it makes them look better.

        PLUS if the majority of lawyers are bad, then the good(as in reasonable ability not as in nice) ones have a much bigger chance of being set against one in a case and therefore giving them a thorough and complete drubbing.

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

      • icon
        Bergman (profile), 5 Jun 2015 @ 2:44am

        Re: Re: Need some serious research here...

        Probably from one of the 'schools' run by Axact.

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

    • icon
      Gwiz (profile), 3 Jun 2015 @ 12:35pm

      Re: Need some serious research here...

      What "law" school is turning out these lawyers?


      My guess would be the Thomas M. Cooley Law School.

      I heard somewhere that Suing Your Critics 134 is a pretty popular class.

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

  • identicon
    Anonymous Coward, 3 Jun 2015 @ 8:58am

    There is no legal remedy for butthurt.

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

  • icon
    wereisjessicahyde (profile), 3 Jun 2015 @ 9:04am

    I've always found "never eat yellow snow" to be sound advice.

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

  • identicon
    David, 3 Jun 2015 @ 9:10am

    It's a sign of a failing patent system

    when somebody too stupid to find his head in a barrel is able to get a patent awarded basically by just hitting the "Send" button.

    I have to admit that the EFF might have done him injustice by claiming that he has been gaming the system.

    If you don't watch your step when entering the patent office, you'll get pelted with patents. That's not "gaming the system" since the system is working exactly like it has been set up to work. Patent examiners have a quota to fulfill, and they don't get a bonus for spending a significant amount of time on examining patents, particularly not if they are going to reject them.

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

  • identicon
    Blah Blah, 3 Jun 2015 @ 10:34am

    Author is Stupid

    EFF is getting sued for saying Horstemeyer knowingly withheld information, unethically, to gain the system and provided incorrect facts to support that claim then posted as "news." The author is obviously one sided.

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

    • icon
      Dirkmaster (profile), 3 Jun 2015 @ 11:02am

      Re: Author is Stupid

      Care to support that with a single example? And since all the source documents are right there, and most of us enjoy reading the details, did you really thing you'd get any traction with such baseless statements, troll?

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

      • identicon
        Blah Blah, 3 Jun 2015 @ 11:45am

        Re: Re: Author is Stupid

        It's all in the legal complaint genius. No where does it say Horstemeyer is suing EFF because they called him stupid.

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

    • identicon
      Anonymous Coward, 3 Jun 2015 @ 11:17am

      Re: Author is Stupid

      Someone certainly is one sided, but everyone else can clearly see it is you.

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

    • icon
      That One Guy (profile), 3 Jun 2015 @ 12:06pm

      Nothing 'one-sided' about presenting the facts

      Probably because he did. In fact in the email itself, first page, he argues that he doesn't have an obligation to provide information relevant to a patent, making it abundantly clear that he absolutely did, knowingly, withhold information that could have impacted the acceptance of the patent in question.

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

    • icon
      nasch (profile), 3 Jun 2015 @ 1:06pm

      Re: Author is Stupid

      Which of the EFF's statements do you believe is defamatory?

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

    • identicon
      Anonymous Coward, 3 Jun 2015 @ 5:52pm

      Re: Author is Stupid

      Rudyard Holmbast, that you?

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

    • icon
      techflaws (profile), 3 Jun 2015 @ 10:20pm

      Re: Author is Stupid

      and provided incorrect facts

      A fact by definition is correct, otherwise it wouldn't be a fact, moron!

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

  • identicon
    Anonymous Coward, 3 Jun 2015 @ 11:34am

    Yo Scottster

    I understand you have taken exception to the EFF saying "[you have] shown advanced skill at gaming the patent system". I'm sure they're very sorry. I ask you to note that they did not call you an ass-carnivore, depraved patent troll, or a low-born gutter slut. But they did say "advanced skill". No escaping that. Would the great taste of a Charleston Chew candy bar make everything better for you?

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

  • identicon
    HoleTurth, 3 Jun 2015 @ 12:53pm

    This is odd. Lawyers and girlfriends are the only two groups we know of that never overreact.

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

  • identicon
    Anonymous Coward, 3 Jun 2015 @ 2:26pm

    "Mark Cuban Chair to Eliminate Stupid Patents"

    I haven't been a fan of Mark Cuban.

    Until now.

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

  • icon
    RENTNdotORG (profile), 3 Jun 2015 @ 6:16pm

    gaming the system

    I would like to point out that I was sued for the phrase "gaming the system" over a year before the EFF was. Therefore, I contend I hold the SLAPP copyright to this statement and am entitled to the resulting victim-hood and all the resulting benefits.(Or maybe I mean trademark. Patent? When I have the opportunity, I call an opportunistic lawyer and find out.)

    https://www.techdirt.com/articles/20140320/12195726638/property-management-company-files-1-mill ion-defamation-lawsuit-against-critic-former-tenant.shtml

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

  • icon
    Spaceman Spiff (profile), 3 Jun 2015 @ 7:06pm

    It seems...

    It seems that some idiots insist on being public idiots even once their idiocy is so clearly illustrated in public... Oh well. I guess that once an idiot, always an idiot!

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

  • icon
    madasahatter (profile), 3 Jun 2015 @ 8:24pm

    Dumb shyster

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

  • identicon
    Lawrence D’Oliveiro, 5 Jun 2015 @ 6:07pm

    The Case Has Been Dropped ...

    ... and the loser claims victory while limping off the field ...

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


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