New Hampshire Supreme Court: Of Course It's Not Defamatory To Call A Patent Troll A Patent Troll

from the duh dept

Earlier this year, we wrote about a legal fight in New Hampshire, where patent trolling firm ATL, had sued a bunch of critics for defamation for calling them a patent troll. As we noted in February, this was an incredibly weak argument, as it's a statement of opinion. Thankfully, the New Hampshire Supreme Court got this one right and ruled that calling someone a patent troll is not defamatory.

The ruling is a pretty straightforward, by-the-books ruling on a bogus defamation claim on an opinion statement. It cites all the usual cases -- mainly Phantom Touring -- to point out that "patent troll" is just an opinion that can't be defamatory, because there's no objective standard by which you would prove it true or false. People can (and do!) disagree over what constitutes a patent troll, and the court system is not there to settle that debate.

We conclude that the challenged statement, that ATL is a well-known patent troll, is one of opinion rather than fact. As the slideshow demonstrates, the statement is an assertion that, among other things, ATL is a patent troll because its patent-enforcement activity is “aggressive.” This statement cannot be proven true or false because whether given behavior is “aggressive” cannot be objectively verified: “[w]hether or not a particular person’s behavior may be characterized as” aggressive is “a quintessential expression of personal judgment which is subjective in character.” Piccone, 785 F.3d at 772 (quotations and brackets omitted); see Catalfo, 657 F. Supp. at 468. “[I]t means different things to different people[,] and there is not a single usage in common phraseology.” McCabe, 814 F.2d at 842 (quotation and ellipsis omitted) (“The lack of precision makes the assertion ‘X is a scam’ incapable of being proven true or false.”); see also Phantom Touring, 953 F.2d at 728 (statements that plaintiff’s theater production was “fake” or “phony” could not be objectively verified “since those adjectives admit of numerous interpretations” (quotations omitted)). That CUNA acknowledged the “pejorative” nature of the phrase “patent troll” does not mean it is an assertion of fact rather than opinion. See Piccone, 785 F.3d at 772; see also Masson v. New Yorker Magazine, 832 F. Supp. 1350, 1367 (N.D. Cal. 1993) (“Falsity and defamatory meaning are analytically separate.”).

To the extent the plaintiffs argue that CUNA’s or the other defendants’ use of “patent troll” is one of verifiable fact rather than opinion because those statements were accompanied by a definition of the phrase, we disagree. As should be apparent from our discussion above, and as the Catalfo court explained, if a challenged statement is defined, but that definition itself “does not have a precise meaning such that it is capable of verification,” neither does the challenged statement. Catalfo, 657 F. Supp. at 468 (even if “sleazy” carried definition of “marked by low ethical standards,” it was not “capable of verification” because “[e]thical standards are inherently subjective”). For the reasons explained above, the definition of “patent troll” offered by CUNA cannot be objectively verified.

Other plaintiffs find their statements to be similarly protected:

Similar to CUNA’s allegedly defamatory statements, we conclude that the “references to ATL as a patent troll” in ABA’s 2013 testimony are expressions of opinion. Unlike CUNA, ABA did not offer a precise definition of “patent troll” in its testimony.4 If anything, though, ABA’s failure to specifically define the phrase, coupled with the lack of any concrete common definition, see Golden, supra at 2112-13 n.7, as well as the myriad ways in which its utterers deploy it, see Allison et al., supra at 242, makes it even more difficult for us to “imagine . . . objective evidence that might conclusively prove or disprove it.” Levinsky’s, 127 F.3d at 130. Like other, similar pejorative terms, “patent troll” is “quintessentially subjective.” Id.; see, e.g., Piccone, 785 F.3d at 772; Gray, 221 F.3d at 248; Dilworth v. Dudley, 75 F.3d 307, 310 (7th Cir. 1996) (statement calling plaintiff a “crank” was not actionable because it was “just a colorful and insulting way of expressing” disapproval of the plaintiff’s work). “[T]he status as a troll is in the eye of the beholder. Every firm that has a patent valuable enough to support major [infringement] litigation . . . has acquired that patent from some person who has invested the resources to invent that technology.” Mann, supra at 1023-24; see also Electronic Frontier Foundation, 290 F. Supp. 3d at 946.

The plaintiffs appear to argue that ABA’s 2013 statement referring to ATL as a patent troll cannot be construed as an opinion because it was made in the context of giving legislative testimony. According to the plaintiffs, “legislation cannot address an issue that cannot be defined.” We disagree with the plaintiffs’ “untenable premise” that all legislative testimony must, ipso facto, consist entirely of factual assertions. Riley, 292 F.3d at 294. People can, and regularly do, express their personal opinions before legislatures.

The court also (easily, as have other courts) rejects the claims that if you don't say "I think" or "In my opinion" before a statement of opinion, it's not longer an opinion:

The plaintiffs’ appellate arguments with respect to Stier and Pierce Atwood’s statements are generally duplicative of their arguments as to CUNA’s and ABA’s respective statements. Their arguments pertaining to these two defendants differ from those pertaining to the other defendants in two ways that bear mention. The plaintiffs contend that the context of Stier and Pierce Atwood’s patent troll statements make them actionable because they contain “no language to alert the audience that the statements . . . are expressions of opinion.” However, “the law does not force writers to clumsily begin each and every sentence with” language such as “I think,” or “in my opinion,” for a statement to constitute an opinion. Riley, 292 F.3d at 292 (quotation and brackets omitted). Rather, Stier and Pierce Atwood’s patent troll statements are opinions for the same reason that CUNA’s and ABA’s statements are: whether ATL is a patent troll cannot be “objectively verified.” Piccone, 785 F.3d at 772 (quotation omitted).

I'm reminded of a lawyer who once pointed out to me that it's just as easy to start a sentence saying "in my opinion..." followed by a potentially defamatory factual statement, as it is to state "it is a fact..." followed by a statement that is purely opinion. All that matters is whether or not the claim itself is actually a fact or an opinion -- not whether your declare it one way or the other.

And with that, ATL has to live with the, uh, fact that New Hampshire's Supreme Court has said it's not defamatory to call ATL a patent troll. So, sing it with me, folks: ATL is a patent troll. After all, it sent threat letters to a ton of banks and credit unions, claiming their ATMs violated its patents, and demanding licensing fees. It also set those license fees at a rate that would be below what it would likely cost to fight a patent lawsuit. These are hallmarks of what most of us consider to be patent trolls.

Filed Under: 1st amendment, defamation, free speech, new hampshire, opinion, patent troll
Companies: atl


Reader Comments

The First Word

I'm going to nitpick the headline.

The Court didn't rule that it's not defamatory to call a patent troll a patent troll; it ruled that it's not defamatory to call anyone a patent troll.

The distinction is important because I still routinely see people pull out the "it's not defamation because it's true" line in the comments, even when they're talking about statements of opinion. (One charming anon even called me a "pathetic loser" for saying that "inventor of e-mail" is a statement of opinion, not fact. For those of you just joining us, that's exactly what the judge found in the suit; I guess he was a pathetic loser too.)

I think your headline reinforces this misconception; it's implying that the court found that it wasn't defamatory to call ATL a patent troll because ATL is a patent troll. That is, of course, not what the court found; it found that it isn't defamatory to call ATL a patent troll because "patent troll" is a statement of opinion that cannot be legally determined.

Someone could, for example, call Huawei a patent troll due to its recent patent infringement claims and that wouldn't be defamatory -- even though you could reasonably argue that Huawei actually isn't a patent troll, because it uses its patents to make things, while the phrase "patent troll" typically describes an entity that owns patents but only uses them for the purpose of licensing them to third parties.

To try and break it down into simpler terms:

"It's not defamatory if it's true" is an accurate statement, but only applies to factual statements.

"It's not defamatory if it's an opinion" is also an accurate statement, but not compatible with "it's not defamatory if it's true". A statement can't be both opinion and true (at least, not in a legal sense).

People frequently say "It's not defamatory if it's true" in reference to a statement of opinion. Often they mean it as a joke (as I believe is the case in your headline), but some people legitimately don't understand the legal distinction between a statement of fact and a statement of opinion. I'd generally recommend against describing opinions as "true" in this context even in jest, because it confuses some readers.

—Thad

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  • identicon
    Anonymous Coward, 21 Aug 2019 @ 6:39am

    Article starts out talking about NH court, but you finish it with VT Court.

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

  • identicon
    Dan, 21 Aug 2019 @ 6:52am

    Vermont's Supreme Court has said it's not defamatory to call ATL a patent troll.

    Is it Vermont (as stated in the close of the article) or New Hampshire (as stated in the headline)?

    it sent threat letters to a ton of banks and credit unions, claiming their ATMs violated its patents, and demanding licensing fees. It also set those license fees at a rate that would be below what it would likely cost to fight a patent lawsuit. These are hallmarks of what most of us consider to be patent trolls.

    I think that the non-practicing status of the putative troll needs to be considered, as well as how those demanded licensing fees compare to the cost of litigation. It's one thing if the fees are carefully calculated to be just below the likely cost of litigation, and quite another if they're only a fraction of the likely cost. ATL could very well be a troll, but I don't think the quoted statements are enough to support that conclusion.

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

    • identicon
      Anonymous Coward, 21 Aug 2019 @ 10:49am

      Re:

      If you just have a bunch of patents to sue everyone left and right. You don't make a single thing. Basically an office with some lawyers going around suing everyone. Clearly, you're a patent troll.

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

  • icon
    DannyB (profile), 21 Aug 2019 @ 6:54am

    Not "Patent Troll"

    The correct term is PTE.

    PTE = Patent Trolling Entity

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

    • identicon
      Anonymous Coward, 21 Aug 2019 @ 7:06am

      Re: Not "Patent Troll"

      A troll is an entity, thus, no need for "entity".

      ATL is a patent troll, patent troll, patent troll
      ATL is a patent troll, all the doo daa day.

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

  • identicon
    Anonymous Coward, 21 Aug 2019 @ 7:04am

    ATL is a patent troll

    ATL is a patent troll, yeah
    ATL is a patent troll, do wap
    ATL is a patent troll, da da da
    ATL is a patent troll, do wap
    ATL is a patent troll, yeah!

    xD

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

  • icon
    Shufflepants (profile), 21 Aug 2019 @ 7:46am

    Imagine if the court ruled that being a patent troll was a matter of fact rather than opinion. And then ATL was forced to prove in court that they weren't a patent troll. And then imagine the court definitively finding that they were in fact a patent troll.

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

    • icon
      Thad (profile), 21 Aug 2019 @ 9:06am

      Re:

      As satisfying as that might seem, that would not be a good result.

      If a court were to rule that ATL is a patent troll, and give a list of reasons why it's a patent troll, then that would be an invitation for any organization that's been called "patent troll" but doesn't quite meet all the standards to sue for defamation.

      This ruling says, definitively, "no, you can't sue someone for calling you a patent troll." Which is much, much better.

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

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 21 Aug 2019 @ 9:31am

        Re: Re:

        Much like trans-people is a gender issue, not a sex issue, as ruled by the Supreme Court and agreed with by lgbtq+2ijk.

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

        • icon
          bhull242 (profile), 22 Aug 2019 @ 7:57pm

          Re: Re: Re:

          I’m not entirely sure why this comment got flagged. It sounds like it’s just saying that there is no universally accepted distinction between sex and gender in the same way that there is no universally accepted definition of “patent troll”, along with a quip making fun of the many acronyms for the LGBT community. Nothing terribly offensive or trollish about that.

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

          • identicon
            Anonymous Coward, 25 Aug 2019 @ 7:36pm

            Re: Re: Re: Re:

            You haven't been reading the lawyer-YouTube-LGBT thread, have you?

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

          • identicon
            Anonymous Coward, 27 Aug 2019 @ 5:56am

            Re: Re: Re: Re:

            Seriously?

            Have you ever met anyone in the LGBT community who looked at "a quip making fun of the many acronyms for the LGBT community" and NOT considered it to be "terribly offensive or trollish"?

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

  • identicon
    Anonymous Coward, 21 Aug 2019 @ 8:35am

    Where the fuck is Poochie?

    Hamilton losing his shit in 3, 2, 1...

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

    • identicon
      Anonymous Coward, 22 Aug 2019 @ 12:56am

      Re: Where the fuck is Poochie?

      It's Jhon Smith's turn to come up for air and Hamilton will only be pulled away from his surgical lip graft condition over his cold dead body.

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

  • icon
    Thad (profile), 21 Aug 2019 @ 9:05am

    I'm going to nitpick the headline.

    The Court didn't rule that it's not defamatory to call a patent troll a patent troll; it ruled that it's not defamatory to call anyone a patent troll.

    The distinction is important because I still routinely see people pull out the "it's not defamation because it's true" line in the comments, even when they're talking about statements of opinion. (One charming anon even called me a "pathetic loser" for saying that "inventor of e-mail" is a statement of opinion, not fact. For those of you just joining us, that's exactly what the judge found in the suit; I guess he was a pathetic loser too.)

    I think your headline reinforces this misconception; it's implying that the court found that it wasn't defamatory to call ATL a patent troll because ATL is a patent troll. That is, of course, not what the court found; it found that it isn't defamatory to call ATL a patent troll because "patent troll" is a statement of opinion that cannot be legally determined.

    Someone could, for example, call Huawei a patent troll due to its recent patent infringement claims and that wouldn't be defamatory -- even though you could reasonably argue that Huawei actually isn't a patent troll, because it uses its patents to make things, while the phrase "patent troll" typically describes an entity that owns patents but only uses them for the purpose of licensing them to third parties.

    To try and break it down into simpler terms:

    "It's not defamatory if it's true" is an accurate statement, but only applies to factual statements.

    "It's not defamatory if it's an opinion" is also an accurate statement, but not compatible with "it's not defamatory if it's true". A statement can't be both opinion and true (at least, not in a legal sense).

    People frequently say "It's not defamatory if it's true" in reference to a statement of opinion. Often they mean it as a joke (as I believe is the case in your headline), but some people legitimately don't understand the legal distinction between a statement of fact and a statement of opinion. I'd generally recommend against describing opinions as "true" in this context even in jest, because it confuses some readers.

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

  • icon
    Tanner Andrews (profile), 23 Aug 2019 @ 3:55am

    Well, Actually, "Patent Troll" is Verifiable

    That CUNA acknowledged the “pejorative” nature of the phrase “patent troll” does not mean it is an assertion of fact rather than opinion

    The term "patent troll" does have a verifiable meaning. It is generally understood to refer to what is also called a "non-practicing entity" or NPE.

    NPEs are the sand in the gears of invention. They invent nothing, but attempt to levy a rent upon people doing something useful.

    My favorite examples are trying to collect rent for network printing and network scanning. I was doing the first as a computer guy back in the mid 1990s using commercial devices intended for that purpose. I did not do network scanning to e-mail until the easly 2000s when I was in grad school.

    The hallmark of non-practicing enties is that they find patents with extremely broad and vague descriptions, coupled with no actual implementation at time of patent. The patent office ought to go back to requiring inventors to bring a working example at time of application.

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

  • icon
    dsdasa (profile), 27 Aug 2019 @ 5:32am

    https://www.amazon.com/dp/B07S2ZZMG8

    YWECAN Car Cup Holder Mount for iPhone Xs/XS Max/X/8/7 Plus & 7"-10.5" Tablets, Universal Car Cradles Adjustable Gooseneck for Apple iPhone iPad Pro Air Mini, Samsung Galaxy Tab

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


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