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.

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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.


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  1. 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.

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