Appeals Court Rejects Sketchy Plan To Pretend To Sell Patents To Native American Nation To Avoid Scrutiny

from the sovereign-assholery dept

Some ethically sketchy patent lawyers thought they had come up with a brilliant scam to avoid having awful patents scrutinized by the special review board created by Congress within the Patent Office -- a process known as "inter partes review" or IPR. This Patent and Trademark Appeals Board (PTAB) has been a useful tool in going back and reversing the mistakes made by patent examiners in letting through bad patents. However, back in September, we wrote about a fairly devious plan by the lawyers from the law firm of Shore Chan DePumpo to help their clients avoid a PTAB review. The situation began with a PTAB ruling back in early 2017 in a review of a patent held by the University of Florida. The University claimed sovereign immunity exempted it from the whole PTAB process under the 11th Amendment (universities claiming sovereign immunity in patent cases goes way back) and the PTAB agreed it had no jurisdiction.

Sensing an opportunity, the lawyers at Shore Chan DePumpo worked out a neat little scheme in which a pharmaceutical company would "sell" its patents to a Native American nation (in this case, the St. Regis Mohawk Tribe). The "sale" was in name only. The pharmaceutical companies retained not just an exclusive license to the patents, but basically all other rights as well. The only thing St. Regis got was a nice little income stream in exchange for having its sovereign status used to shield the pharma companies' patents from scrutiny before the PTAB.

I'm sure it seemed like a good idea to someone at the time, but it has been an utter failure. In October, the district court made it clear that this was a scam it didn't intend to allow to go forward. Then, in February, the PTAB itself denied the tribe's motion, pointing out that the PTAB wasn't stupid and totally understood the scam being played:

Upon consideration of the record, and for the reasons discussed below, we determine the Tribe has not established that the doctrine of tribal sovereign immunity should be applied to these proceedings. Furthermore, we determine that these proceedings can continue even without the Tribe's participation in view of Allergan's retained ownership interests in the challenged patents. The Tribe's Motion is therefore denied.

And now, just to add one more nail to the coffin of this terrible idea, the Federal Circuit, which traditionally is happy to rubber stamp any scam to keep patent owners happy, has rejected this plan as well. The CAFC ruling doesn't call out this procedure as a scam, but rather focuses in on the procedural questions of whether or not the IPR process is akin to an agency enforcement action (which would not be blocked by sovereign immunity) v. a civil lawsuit (which would be). It goes through a number of factors and decides that it's more of an agency action, and thus the tribe (acting as a front for the pharma companies) can't claim sovereign immunity and avoid having the Patent Office review its patents.

I guess the lawyers at Shore Chan DePumpo will just have to go back to sending frivolous takedown notices to bloggers who criticize the firm...


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  • icon
    Gary (profile), 30 Jul 2018 @ 1:59pm

    CAFC

    If the CAFC choked on it,it must be egregious.

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    • icon
      That One Guy (profile), 30 Jul 2018 @ 10:11pm

      Re: CAFC

      Yeah, that's like a patent being found guilty in east texas, you know if you somehow manage it you went above and beyond in excessive claims/actions.

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  • icon
    That Anonymous Coward (profile), 30 Jul 2018 @ 2:37pm

    If they have sovereign immunity, how are they able to get patents?

    They are immune to legal findings & laws, so why are they able to get the benefits but none of the checks & balances?

    Some one with sovereign immunity could get a patent issued on how the government works (don't even try to say that couldn't happen... ROUNDED RECTANGLES... ROUNDED RECTANGLES) & then enforce it demanding payments and not have to worry about the patent being declared invalid, b/c they can't be sued.

    If you want the upsides, you need to take the downsides.
    The entire realm of IP is completely screwed up, we still have the rocket docket saying that patents on cassette tapes somehow cover all of the internet. Patents are issued on unpatentable things b/c on the internet is stapled to the application.

    We needed reform, now more than ever but IP is this sacred cow that shall not be touched... no matter what.

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    • icon
      That One Guy (profile), 30 Jul 2018 @ 5:19pm

      Re:

      We needed reform, now more than ever but IP is this sacred cow that shall not be touched... no matter what.

      Not exactly, the ones making money from it are all for it being ratcheted up(again, and again, and again), it's just any possible decrease that they object to.

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    • identicon
      Anonymous Coward, 31 Jul 2018 @ 10:14am

      Re:

      If they have sovereign immunity, how are they able to get patents?

      If truly soverign, they can grant their own patents. But don't expect to enforce them in the USA.

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  • identicon
    Anonymous Coward, 30 Jul 2018 @ 2:55pm

    DePumpo and Dumpo?

    Shore Chan !

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

  • icon
    Hugo S Cunningham (profile), 30 Jul 2018 @ 4:57pm

    Patent States' rights should be two-way street

    If U Florida invokes States' rights to exempt its patent from PTAB review, then its patent should be void outside Florida.

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  • identicon
    Anonymous Coward, 30 Jul 2018 @ 5:27pm

    The Indian tribe play probably seemed legally safer than setting up an offshore trust in some Caribbean island that would own the company's intellectual property in Prenda-like fashion.

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    identicon
    Anonymous Coward, 30 Jul 2018 @ 6:21pm

    Why the Animus?

    In legal proceedings, lawyers almost always go “to the edge” of what is reasonable, sometimes they go over. When they are working for you, you appreciate this, just as Mike appreciated it when his case got thrown out of court for an argument that had nothing to do with the Email inventor or the harm that he caused him. Every lawyer does this, they try everything possible, on both sides, of every issue, every time. They get paid to do it. It is expected by clients, adversaries, judges and juries. That’s just the way the game is played, by everyone. In this case, I think they failed because they claimed they “sold” the patent while retaining the majority of the benefits. That’s not a sale, everyone saw through it. Good for them. But why the animus? Everything here worked out for the good, and there is really no one to blame, they were just doing the job they were paid to do. Disparaging lawyers is a fruitless exercise because (1) no one in the legal community has any idea what you are talking about and (2) all the outrage is from people who know nothing about the legal system. Calling a lawyer “sketchy”? They are paid to go right to the edge of “wrong”, but not cross it. That’s their job. Of course they’re sketchy. The cheaper ones get extremely sketchy. So what? The system is designed to deal with that, and it does so, very effectively. If you want to write about outrageous lawyer behavior, write about the ones who win a case and keep the money, withholding it from the client. There are many public records of such things at the Bar association. That’s just criminal, and really really disappointing to clients. This case doesn’t seem very interesting at all, and certainly not worthy of any moral outrage.

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    • identicon
      Anonymous Coward, 30 Jul 2018 @ 7:04pm

      Re: Why the Animus?

      The system is designed to deal with that, and it does so, very expensively

      FTFY

      But to respond, there are multiple reasons that people may not like the current system and the lawyers which operate it.

      1. The system does deal with this kind of thing...as long as both parties have the money to do so. If one party does not, then the system does not deal well at all.

      2. A corollary to (1), but some people may look at this from other perspectives and decide that this is inefficient (in the economic sense) or otherwise a waste of resources (in a sociopolitical sense), and something should be done about that.

      3. Some people believe that people should generally act in an ethical manner, even if they are not legally required to do so.

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

      • identicon
        Anonymous Coward, 30 Jul 2018 @ 7:32pm

        Re: Re: Why the Animus?

        Yes I agree with you that money plays a large role. On the other hand, many very expensive attorneys give their time for free when they see something they care about personally. And since the civil legal system really deals with money as a remedy for wrong-doing, it is difficult to remove money from the process altogether. Like most things American, it can be viewed from multiple angles. Angle 1, justice should not just be for the wealthy and ethical behavior (which should be encouraged) is often in short supply from attorneys. Angle 2, your ethics may not be my ethics, and no matter how ethical a person may be, they probably have some areas of shortcoming too. So, we depend on this adversarial system where people get “close to the edge” without going over it, but sometimes they do. One thing that is sure is that the US leads the world economically, and one of the biggest reasons for this is we have the best legal system in the (real) world. No doubt. It has it’s flaws, some areas that are distressing, for sure and yes I agree with that. But the solution is to improve it, not abandon it, as is often cited by this forum and other liberal bastions.

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        • identicon
          Anonymous Coward, 31 Jul 2018 @ 1:08am

          Animus was on my word of the day calendar too bro!

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

          • identicon
            Iggy, 31 Jul 2018 @ 5:19am

            Re: Animus was on my word of the day calendar too bro!

            The Animus is a device which was used by Shore Chan DePumpo (a subsidiary of Abstergo Industries) to help them mine the memories recorded in the DNA of the descendants of Ratonhnhaké:ton/Connor to best figure out how to bring in money from a patent scam.

            Sorry, I had to.

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    • identicon
      Anonymous Coward, 30 Jul 2018 @ 7:54pm

      Re: Why the Animus?

      Just Charles Harder, Hamilton.

      Or put your money where your mouth is and set up a fund for Paul Hansmeier's freedom.

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

    • identicon
      Anonymous Coward, 30 Jul 2018 @ 7:57pm

      Re: Why the Animus?

      Shouldn't you be disclosing your personal interest in making sure such irresponsible methods of IP law enforcement are upheld, Hamilton? You know, like the way you demanded that Masnick disclose his personal benefit in support for anti-SLAPP laws? Harder needing to appeal Shiva's case really got your goat didn't it?

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

      • identicon
        Anonymous Coward, 30 Jul 2018 @ 8:27pm

        Re: Re: Why the Animus?

        I’ll bet you want to see Trump’s tax returns too. Tell me I’m wrong.

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

        • identicon
          Anonymous Coward, 31 Jul 2018 @ 1:10am

          And I bet you suck off pantomime dames.

          Tell me I’m more off topic than you are.

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

        • identicon
          Anonymous Coward, 31 Jul 2018 @ 1:56am

          Re: Re: Re: Why the Animus?

          Not really, no. I'm not interested in that. (So yeah, you'd be wrong.) I'm really more interested that the fucknugget trying to harass and bleed out a website which I read, through attrition via lawsuit because his panties are tied on too tight, to go away. So I'll tell you again, you're wrong.

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

    • icon
      Matthew Cline (profile), 30 Jul 2018 @ 10:52pm

      Re: Why the Animus?

      just as Mike appreciated it when his case got thrown out of court for an argument that had nothing to do with the Email inventor or the harm that he caused him

      ????

      The lawyer laid out the reasons Mike believes Shiva didn't "invent" email, and also claimed that what Mike said was "opinion based on disclosed facts". The former has everything to do with Shiva, and the latter is a standard defamation defense that doesn't even come close to getting "near the edge".

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

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        identicon
        Anonymous Coward, 30 Jul 2018 @ 11:42pm

        Re: Re: Why the Animus?

        Calling someone a liar and a fraud is a statement of fact that a jury should consider after hearing all the evidence. Mike says it is true, so convincing an impartial jury of that should be no problem, right? Liar and fraud have plain meaning to the common citizen as well as profound implications to potential business relationships.

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

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          identicon
          Anonymous Coward, 31 Jul 2018 @ 12:10am

          Re: Re: Re: Why the Animus?

          IMHO, Mike, Leah and Techdirt have been way “over the edge” for a long time. There is no legal difference between saying “you are a liar and a fraud” and “it is my opinion that you are a liar and a fraud”. They have identical meanings, SCOTUS resolved that a long time ago. IMHO, their attorney used misdirection to allow them to scate out of the lawsuit by framing the wrong question. The question is not who invented Email, the question is about whether Shiva is a liar and a fraud. Liar and fraud have plain meaning to common citizens and plain meaning to business people. No one would want to do business with a liar and a fraud. The idea that just because Mike comes to a different conclusion about Email based on the same facts does not make Shiva a liar and a fraud. In “normal” American society, we call this a difference of opinion. In the old west, you got shot for calling someone a liar and a fraud (especially at a card game) and everyone was more careful. Mike proved nothing with his court victory other than he had a good attorney that misdirected the judge to the wrong question. Now it will go back and be considered again. There is nothing wrong with Mike’s attorney, he is doing a good job. Everyone should have an attorney that does a good job, an aggressive job, and bends over backwards to help his client, even by skating “near the edge”. The article is boring, IMHO. The real question regarding whether Mike, Leah and Techdirt are in the wrong to call Shiva a liar and a fraud is for a jury to decide, not some hogwash about “in my opinion blah blah blah”.

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

          • icon
            Matthew Cline (profile), 31 Jul 2018 @ 12:25am

            Re: Re: Re: Re: Why the Animus?

            There is no legal difference between saying “you are a liar and a fraud” and “it is my opinion that you are a liar and a fraud”.

            However, there is a legal difference between "it is my opinion that you are a liar and a fraud" versus "due to X, Y, and Z you are a liar and a fraud" where X, Y and Z are publicly available pieces of knowledge which are true.

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          • identicon
            Anonymous Coward, 31 Jul 2018 @ 1:14am

            Re: Re: Re: Re: Why the Animus?

            We know you’re a Ho Hamilton. No need to repeat yourself just cause your boy his ass handed to him like a little bitch. And maybe if you... uh I mean that guy, would stop being a liar and a fraud perhaps people would stop calling “him” a liar AND a fraud.

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        • identicon
          Anonymous Coward, 31 Jul 2018 @ 12:11am

          Re: Re: Re: Why the Animus?

          Claiming to be the Inventor of a version of email is one thing, claiming to be the Inventor of email as currently implemented without being able to point to your name on or in RFCs is an entirely different matter. The writers of RFCs were and are generally very careful about attribution, as it is the currency of their reputations.

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        • icon
          Matthew Cline (profile), 31 Jul 2018 @ 12:23am

          Re: Re: Re: Why the Animus?

          Mike said "because of X, Y and Z Shiva is a fraud and liar". X, Y and Z are true. Because of that, him calling Shiva a fraud and liar are opinions based on disclosed facts, which are not something a court will hold a trial over. You might not think that's fair, but that's the way that U.S. defamation law currently works.

          To go into a bit more detail about "opinions based on disclosed facts": if Mike hadn't written "because of X, Y and Z Shiv is a liar/fraud" he had written only "Shiva is a fraud/liar" without providing any reasons, a reader might think that Mike has access to information that the reader doesn't have access to, and thus give weight to Mike's statement that it doesn't deserve; that sort of thing can go to court. Or if Mike had written "due to private conversations I've had with Shiva I believe him to be a fraud/liar", but Shiva denied that those conversations took place, that's something a jury can judge. However, what Mike actually wrote was "due to X, Y and Z Shiva is a fraud/liar". X, Y and Z are publicly available knowledge. Anyone who reads what Mike wrote can judge for themselves if "X, Y and Z make Shiva a fraud/liar" is a logical statement. And since the reading public can judge for themselves, based on publicly available knowledge, if Mike's statement is logical or not, there's no need for a jury to do so.

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          • identicon
            Anonymous Coward, 31 Jul 2018 @ 12:28am

            Re: Re: Re: Re: Why the Animus?

            This is a question for a jury.

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            • icon
              Matthew Cline (profile), 31 Jul 2018 @ 12:35am

              Re: Re: Re: Re: Re: Why the Animus?

              Whether "X, Y and Z make Shiva a fraud/liar" is logical or not is a question for a jury? According to 1st amendment lawyer Ken White (Popehat) it is not a matter for a jury. I'm going to trust his expertise over that of some random person on the Internet.

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

              • identicon
                Anonymous Coward, 31 Jul 2018 @ 12:53am

                Re: Re: Re: Re: Re: Re: Why the Animus?

                Do you think there is any way for two honest people to form different opinions and come to different conclusions based on the same facts?

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                • icon
                  Matthew Cline (profile), 31 Jul 2018 @ 1:01am

                  Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                  Of course it's possible. That doesn't make a bit of difference to what U.S. defamation law currently IS. If you're talking about what the law should be, I don't think honest differences of opinion means that a jury should get to decide the logical or illogic of statements like "due to X, Y and Z John Doe is a liar/fraud", where X, Y and Z are all publicly available true information.

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

                  • identicon
                    Anonymous Coward, 31 Jul 2018 @ 1:04am

                    Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                    So you concede that maybe Shiva is not a liar or a fraud.

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                    • icon
                      Matthew Cline (profile), 31 Jul 2018 @ 1:13am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                      Having read some of Shiva's statements, I think that he's deluded himself into believing his claim that he invented email. But that has nothing to do with the merits of the lawsuit he filed against Techdirt, or whether or not Mike's lawyers mislead the judge.

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

                      • identicon
                        Anonymous Coward, 31 Jul 2018 @ 1:27am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                        Maybe he is not a liar or a fraud.

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

                        • identicon
                          Anonymous Coward, 31 Jul 2018 @ 1:39am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                          Do you think there is any way for two honest people to form different opinions and come to different conclusions based on the same facts?

                          If they do so, then there's no way that either conclusion could be defamatory. After all, it's just someone's opinion, and opinions aren't defamatory.

                          Maybe he is not a liar or a fraud.

                          Maybe that's just your opinion. Others may disagree. Still not defamation.

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

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                            identicon
                            Anonymous Coward, 31 Jul 2018 @ 1:45am

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                            Well, that’s progress that someone on Techdirt would acknowledge that it is even POSSIBLE that two different opinions might both come from honest and well intentioned people, and there is no “absolute truth” to report. I appreciate that you concede that I have a right to an opinion, even if it is different than yours. Wow, good news. Maybe the Email guy is a fraud, and maybe he is not. But if you want to call him one, in public, and cause him injury (which was Techdirt’s entire purpose, as stated by many posters), be prepared to defend your version of the truth in front of a jury. It should be no problem if you are right, but could get a little sticky if you are not.

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                            • icon
                              Matthew Cline (profile), 31 Jul 2018 @ 1:57am

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                              But if you want to call him one, in public, and cause him injury (which was Techdirt’s entire purpose, as stated by many posters)

                              If he lost any book sales, business deals or such, it's going to be because people were convinced that he didn't invent email, since that's his entire claim to fame. No one is going think he's skilled with technology or a good business partner merely because he *believes he invented email.

                              be prepared to defend your version of the truth in front of a jury. It should be no problem if you are right, but could get a little sticky if you are not.

                              1) As noted above, U.S. defamation law doesn't work that way when it comes to opinions based on disclosed facts.

                              2) About the only way that one could prove Shiva doesn't believe what he's saying is if he had been stupid enough to write someone an email admitting to it.

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                              • identicon
                                Anonymous Coward, 31 Jul 2018 @ 2:45am

                                Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                                You start to see why Hamilton has such a vested interest in intellectual property law. Plaintiffs get their arguments, subpoenas and extortion, I mean settlement money by the mere levying of an accusation. Ayyadurai doesn't actually need to prove or demonstrate that he's been damaged, despite the political foray, he just needs to claim it like a special snowflake.

                                It's why Hamilton lamented the demise of John Steele.

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                                Anonymous Coward, 31 Jul 2018 @ 4:08am

                                Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                                Well, Matthew, I respect your opinion, but I do not follow your argument. If I remember, Shiva had quite a good education and quite a strong social circle. He talked about a lot of things, plants and their effect on health, for example, among other things. If I remember he was married to a famous comedian, that probably got him a lot of introductions. I think the Email thing was rather insignificant until it became a liberal “cause” and the drums of the far left and the chants of the mob called for his head. About how defamation law works, I don’t know how to argue with you, I’m not an attorney. I just think he never got a fair shake here on Techdirt, and it always seems to get everybody’s hair to stand up to say “maybe” he’s not a monster. I hate to see anyone attacked by any mob, especially the really nasty Techdirt mob. What ever happened to giving people the benefit of the doubt?

                                If you go back in time a little, you probably remember how vile and disgusting the commenting here was, very sexual with a lot of feces used as argument. Why not take the side of the little guy who is getting picked on by the mob? It seems very American to me, and many of the most radical posters here are not American at all, their are socialist lunatics that believe in a “perfect” government as the solution to all human ills (you know who you are). Anyway, thank you again for being a sane voice amidst the angry and rhetorically violet mob of Techdirt. You seem open to rational argument and it is refreshing to see that here amidst the chaos and howling.

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

                                • identicon
                                  Anonymous Coward, 31 Jul 2018 @ 4:54am

                                  Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                                  Sometimes I really try to otherstand the other views on Techdirt. Perhaps you could indulge me just a little and help confirm what I think I have learned here:

                                  There is a socialist leaning group here, and the opinion that with a perfect government, there would be no crime and maybe no need for money, seems to have broad based acceptance. With that in mind, in that (imagined) society, we would need no police (no crime) and everyone would have happy peaceful crime-free lives and (presumably) easily share the great wealth of the country around them. Towards that end, if you are just “quiet” and go along with the mob then the government will guarantee your “safe space” and shield from difficult questions and silence any dissenting voices on your behalf so you can have a nice quiet safe life.

                                  To an American, this whole story sounds like a children’s story, and is flawed in it’s fundamental assumptions, that is, that life should be safe and easy and unchallenging. Americans believe the purpose of life is to serve others, and towards that end, we offer the ultimate challenge to each and every individual: Serve others, Follow the Rules, and you can become Fabulously Wealthy. Everybody that wants to. How to do that? It’s tough, it’s not safe, it’s difficult and dangerous, but has a fabulous payoff. You can be the next Donald Trump, literally. That’s the bargain when you are an American. That is not the bargain when you are a Socialist.

                                  These are two fundamentally different and completely incompatible world views, the Socialist view and the American view. To the Socialists, Americans look chaotic and random and their success seems unfair and unjust and difficult to comprehend. The same could be true of children, who often find difficult concepts beyond their grasp. To Americans, Socialists look like children and act like children. Both have a view of truth, depending on where in the spectrum you are regarding “enlightened self interest”.

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                                    Anonymous Coward, 31 Jul 2018 @ 6:01am

                                    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                                    I think the same socialist cause has been take up in large part by Universities. When the government underwrote the education of our most vulnerable citizens (young people), the effect of the 1.5 trillion dollars of credit was to fundamentally corrupt the mission of Universities. To make the most money, they became babysitting factories focused on keeping kids in school at all costs, after all, they needed the warm bodies to collect the government money. So, forget a challenging education, keep them warm and comfortable and safe and most of all in school, and take their government money. What is completely disgraceful is that the government did this in a way that took away a basic American right - bankruptcy. Bankruptcy is there for a purpose - so people will risk, but also be able to (under some circumstances) walk away from it. Student loan programs from the government took away this American right. Disgraceful what was done to our young people, taking money on false pretenses, and then cheating them out of what every other American can do with debt - discharge it through bankruptcy. That is a model for Socialism, debts that can never be rapaid, and a life of servitude without a change of recovery.

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                                  • identicon
                                    Wendy Cockcroft, 1 Aug 2018 @ 2:30am

                                    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                                    There is a socialist leaning group here, and the opinion that with a perfect government, there would be no crime and maybe no need for money, seems to have broad based acceptance. With that in mind, in that (imagined) society, we would need no police (no crime) and everyone would have happy peaceful crime-free lives and (presumably) easily share the great wealth of the country around them. Towards that end, if you are just “quiet” and go along with the mob then the government will guarantee your “safe space” and shield from difficult questions and silence any dissenting voices on your behalf so you can have a nice quiet safe life.

                                    The right-wing voluntarian anarcho-capitalist version is just as childish.

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

                            • icon
                              Dan (profile), 31 Jul 2018 @ 6:42am

                              Re: Why the Animus?

                              You're missing something very fundamental here, and you've repeated your error several times in this thread. If you sue me for defamation, the burden is not on me to prove that my statement is true--it's on you to prove that it's false. The burden is also on you to prove that I was at least negligent in making the false statement. If you're a public figure, as Shiva is, the burden is on you to prove that I lied--that I made my false statement knowing it was false, or with reckless disregard of its truth. Only once you meet that burden (as well as the burden of showing other points that aren't in dispute in the Shiva case) do I need to prove anything.

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                                Dan (profile), 31 Jul 2018 @ 7:29am

                                Re: Re: Why the Animus?

                                To add to this: "X is a liar" is necessarily (legally) a statement of opinion--nobody can know what X thinks or knows, so nobody can say with complete certainty that X knows what he's saying is false (this, incidentally, is what makes it very hard for a public figure plaintiff to win a defamation case). The statement itself is either true or false, but nobody making the statement can know which it is, and anyone hearing the speaker would know that, so it's (legally) an opinion.

                                "X is a fraud" is also a statement of opinion, as it consists of two statements of opinion joined together: (1) that X is a liar (see above), and (2) that X is lying to further his own (typically financial) interests. The second, once again, goes to X's thought process, so it's necessarily a statement of opinion. Neither of these is actionable as defamation.

                                So:

                                • "Shiva did not invent email." This is a claim of fact (and I think the trial court erred in finding this to be a matter of opinion), and is sufficiently well-established as to be beyond reasonable dispute.

                                • "Shiva is lying when he says he invented email." This is an opinion. It's almost certainly true, as only some grave mental illness could lead Shiva to believe this is true despite all the evidence, but since I don't and can't know what's going on in that twisted mind of his, it's an opinion.

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                                  Anonymous Coward, 31 Jul 2018 @ 7:52am

                                  Re: Re: Re: Why the Animus?

                                  You sound knowledgeable and certain. I can’t say the same about my opinion. But, I think everyone would agree that Shiva has not gotten a fair shake in this forum. So, it seems American to me to take his side of this debate (and it is a debate) since you will not allow him to voice his opinion here. Prove me wrong. Prove you are American. Invite him to discuss his position and allow him to present it without shouting him down with meaningless hyperbole, profanity, ill-will and nastiness. Be American! Get over your mob mentality, leave some room for doubts regarding his evil nature. You may need the same favor in the future. That’s American! Mobs don’t rule in America (at least not yet).

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                                    Anonymous Coward, 31 Jul 2018 @ 8:09am

                                    Re: Re: Re: Re: Why the Animus?

                                    Regarding your legal opinion, you might be right, I really don’t know. But my “country lawyer” side tells me that if you set out to hurt someone financially (which I think Techdirt did, at least their posters say that repeatedly) and then you succeed in hurting them financially, you better be careful that it does not backfire on you. Did it backfire in this instance? Well, I think we have to wait for the appeals court, and maybe even SCOTUS to weight in. That’s been happening a lot lately, liberal judges doing crazy things with American law. But SCOTUS straightens it out eventually. So, time will tell what the situation is regarding the law. About the intent, I think there is a long documented history about the harm that was intended. Was it really deserved? Did it serve a societal purpose? I am really not sure, it seemed like “mob rule” to me, and that’s never good. Is Shiva really the monster you say? Probably not. Did you accomplish anything worthwhile by defaming him so thoroughly? I doubt it.

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                                      Anonymous Coward, 31 Jul 2018 @ 8:41am

                                      Re: Re: Re: Re: Re: Why the Animus?

                                      And since you responded to yourself and no one critized you for it, maybe I can respond to myself an escape the wrath of the angry mob too.

                                      If you accept the lemma regarding Americanism and the idea that anyone can get rich in America (which has been proven countless times), then you understand why Techdirt looks so wrong in this case. Shiva looks American, hard working, educated, opinionated, passionate, ambitious, kind of full of himself (that’s American) and willing to take risks (he is running for office). When Americans see this, they understand they are seeing something admirable, not deplorable. Shiva looks American. He looks worth defending, at least against ridiculous attacks from mobs.

                                      Techdirt does not look American. Censorship is not American. Mob rule is not American. Profanity and disgusting sexual comments are not American tools of debate in normal American society. The comments about Shiva look unhinged.

                                      I fully expect that if this case ever gets in front of an American jury, Techdirt will lose, because Americans will stick up for other people they see as Americans. Shiva looks American. Mike, especially when posing with the criminal traitor pardoned by Obama, does not look American at all. Leigh is not American not does he sound or act like one.

                                      Shiva is ambitious, educated, hard working, self-loving (like POTUS) and already somewhat successful. He has a reason for what he is doing, he is following the American path to fame and riches. What in the heck is Techdirt accomplishing by condemning him publicly? Techdirt knows the “truth”? That seems unlikely. Shiva’s agenda is obvious and respectable (even if he is a little over-the-top). What is Techdirt’s agenda? To be the arbiters of “truth”? Or is it to try to destroy American values and American culture in favor of another?

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                                  • icon
                                    Dan (profile), 31 Jul 2018 @ 8:30am

                                    Re: Re: Re: Re: Why the Animus?

                                    You have a curious idea of what is American. As you see it, a private website is obligated to give space to someone who's suing them, for him to explain himself. And the fact that they posted his complaint, and his reply, isn't enough. Nor is the fact that they've linked to many, many publications where he's given "his side" of the story. And, of course, he's free to come here and comment like anyone else. And yes, if he does so, people are going to respond, probably unfavorably.

                                    Shiva has been given more than a fair shake in this forum. His claim to have invented email is false. This is not up for serious discussion--all the relevant standards and features had been published long before he wrote his program. His persistence in claiming otherwise in the face of all the contrary evidence means that he's either a liar or dangerously mentally ill (I lean toward "liar", observing how he repeatedly shifts his own unique and bizarre definition of "email", which shows he knows he's wrong). His use of that lie as part of his personal brand means he's a fraud.

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                                      Anonymous Coward, 31 Jul 2018 @ 8:45am

                                      Re: Re: Re: Re: Re: Why the Animus?

                                      Yes, my opinion must seem strange and foreign to you. You seem to accept mob rule quite easily and it does not make you uncomfortable at all. Well, to each his own, I guess. I can’t fault you for your writing skills, you’re probably a better writer than I am. You seem very certain of your judgement about someone (I assume) you don’t even know. I guess you could make the case that if you were on the jury, you would side with Techdirt. Ok, well, I guess we just have a honest difference of opinion, and (truth be told) I’ve never looked at the issue about Shiva all that closely. I just hate to see the other idiots on this forum take such cheap shots (which I think even you would agree with).

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

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                                        Dan (profile), 31 Jul 2018 @ 9:12am

                                        Re: Re: Re: Re: Re: Re: Why the Animus?

                                        You're correct that I don't know Shiva. I have reviewed quite a bit of the relevant, evidence, though, which I'd suggest you do if you're going to post on the subject. Mike's articles have actually provided links to much of it--yes, they give his opinion, but they also link to the primary source materials, and to many of Shiva's public statements.

                                        Meanwhile, you're doing exactly what you accuse me of, in that you're passing judgment on someone you don't even know. Perhaps you could consider that, rather than accepting mob rule, I've reached a conclusion after reviewing the evidence.

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                                      • identicon
                                        Anonymous Coward, 31 Jul 2018 @ 1:22pm

                                        Re: Re: Re: Re: Re: Re: Why the Animus?

                                        “(truth be told) I’ve never looked at the issue about Shiva all that closely.”

                                        You’ve just spent hours and about 30000 words defending that rumpled foreskin of a man. So yeah I changed my mind. This is why you are a liar and a fraud.

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                                          Anonymous Coward, 1 Aug 2018 @ 12:21am

                                          Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                                          If you read closely, I spent precious few words talking about Shiva. Instead, I talked about how “mob rule” is worth standing up against, because it is un-American. There are two sides to almost every important issue. That’s why we have something called “politics” and why we use votes to resolve differences. As Americans, we abhor censorship, because it is always a sign of the tyranny of the few at the expense of the many. Just like here on this forum. Tyrannical socialism ideals on display for the whole world to see. That’s my actual point - it has very little to do with the Email guy - I don’t even like his name. Two puts 2 y’s In a name? It’s just strange (IMHO).

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

                                • identicon
                                  Thad, 31 Jul 2018 @ 10:05am

                                  Re: Re: Re: Why the Animus?

                                  "Shiva did not invent email." This is a claim of fact (and I think the trial court erred in finding this to be a matter of opinion)

                                  Then (1) you disagree with Mike and his defense team and (2) you believe that it should be up to our legal system to determine the definition of "email".

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                                  • identicon
                                    Anonymous Coward, 31 Jul 2018 @ 6:42pm

                                    Re: Re: Re: Re: Why the Animus?

                                    I think everyone agrees that Mike made statements of fact about Shiva. Dan is just saying that he agrees with Mike’s facts after reviewing the evidence, and does not feel he needs more information from Shiva before reaching his conclusion. Dan’s pretty hard to argue with, he’s convincing and thorough.

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

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                          Anonymous Coward, 31 Jul 2018 @ 1:40am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                          I think Matthew Cline goes right to the heart of the issue. Maybe two honest people can look at the same set of facts and come to different conclusions. Maybe Shiva is an honest person and not a liar or a fraud. Maybe calling him a liar and a fraud is a mistake and you should say that you are sorry.

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                          • identicon
                            Anonymous Coward, 31 Jul 2018 @ 2:09am

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                            You ain’t winning this one boy. But it is fun to watch you struggle against the tide. Maybe Shiva should take your advise. Or at least stop digging while his heads above the ground. And maybe most of all you are a liar and a fraud...

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

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                              Anonymous Coward, 31 Jul 2018 @ 4:10am

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                              “Boy”? You are calling me a “boy”? I guess that would be a compliment, I would be happy to be a “boy” again, young, energetic and fabulously attractive. Do you have any reason you are calling me a liar and a fraud, or do you just say that about everyone when you have no rational argument to offer?

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                              • identicon
                                Anonymous Coward, 31 Jul 2018 @ 1:18pm

                                Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                                Because it’s a protected statement of my opinion towards you little boy.

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

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                                  Anonymous Coward, 31 Jul 2018 @ 6:38pm

                                  Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                                  If calling someone a liar and a fraud is a “protected” statement, is calling them a “thief” a protected statement? How about a “crook”, a “cheat”, a “deceiver”, a “swindler” or a “pirate”. OOh, I forgot, “pirate” is a badge of honor here.) No need to prove it, right, you can apply these labels to anyone, promote them all over the world, shout down any defense of their character, and you’re doing God’s work, right? Sock puppet.

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

                                  • identicon
                                    Anonymous Coward, 31 Jul 2018 @ 10:15pm

                                    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                                    Thats how the 1st Admendment works bro. Only took you two days and what 60 posts to get it? Dumbass.

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                                    • identicon
                                      Anonymous Coward, 31 Jul 2018 @ 10:46pm

                                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                                      Good to know, thanks for clearing it up for me. Is there anything you CANNOT call someone?

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

                                      • identicon
                                        Anonymous Coward, 31 Jul 2018 @ 11:52pm

                                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                                        No, not really. That's why we have to put up with you.

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

                                        • identicon
                                          Anonymous Coward, 1 Aug 2018 @ 12:23am

                                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                                          So it is pretty much impossible to libel anyone, right? That’s a convenient view.

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

                                          • identicon
                                            Anonymous Coward, 1 Aug 2018 @ 1:32am

                                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                                            You would have to first have a reputation to tarnish and both you and E-boi have each trashed your own so thoroughly that it’s a wonder people don’t already laugh in an out loud fashion at the mere mention of your names.

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

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                                              Anonymous Coward, 1 Aug 2018 @ 1:42am

                                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                                              Thank you for your ridiculous response. It always makes me happy to see someone give up altogether in the face of my simple and compelling arguments and resort to idiocy instead of argument. Makes my day. :)

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

                                              • identicon
                                                Anonymous Coward, 1 Aug 2018 @ 2:57am

                                                Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                                                Which argument was that? The one the judge trashed? Or the idiotic ones you periodically pop up here with that get instantly demolished by your betters? As has been said before. There’s nothing we can do to worsen your reputation except let you keep talking.

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

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                                                  Anonymous Coward, 1 Aug 2018 @ 4:30am

                                                  Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                                                  Well, you got me again. You say you are my better, and like a good little socialist idiot, I will comply. That’s how your whole party works, right? Pretty much the whole congress. Forget anything associated with any issue, just go for dominance. That should work. I comply completely (Sir).

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

                                                  • identicon
                                                    Anonymous Coward, 1 Aug 2018 @ 11:01pm

                                                    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why the Animus?

                                                    Government is very Republican at the moment. It's what you've been crowing about like a personal victory since Day 1 of you plaguing this site. You bringing it up now is strange, but considering Hamilton standards, ultimately unsurprising.

                                                    Didn't take long for you to devolve back to replying to yourself either.

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

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    Here comes the end of US tech dominance, 30 Jul 2018 @ 6:56pm

    Microsoft operating system as a service

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

  • identicon
    Anonymous Coward, 30 Jul 2018 @ 6:59pm

    How can a university claim sovereign status?

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

    • identicon
      Anonymous Coward, 30 Jul 2018 @ 7:07pm

      Re:

      If it is a state school, then it claims to be a part of the state government, and therefore has the same sovereign immunity as the state government.

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

  • identicon
    Anonymous Coward, 30 Jul 2018 @ 10:50pm

    One part of the article is confusing. The article cites a CAFC case re the University of Florida as involving the PTAB; however, the court’s decision does not involve at all anything before the PTAB. Was a different case cite Intended?

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

  • identicon
    Glenn, 30 Jul 2018 @ 10:59pm

    Sounds like something I'd expect from Dewey Cheatham and Howe.

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


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