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Notorious Patent Troll Sues Federal Trade Commission

Unknown Lamer posted about 7 months ago | from the your-business-is-stupid dept.

Patents 102

Fnord666 writes with news that the notorious scanner patent troll MPHJ Technology caught the eye of the FTC, and decided to file a preemptive lawsuit (PDF) against the Federal government. From the article: As the debate over so-called "patent trolls" has flared up in Congress, MPHJ became the go-to example for politicians and attorneys general trying to show that patent abuse has spun out of control. ... The FTC was going to sue under Section 5 of the FTC Act, which bars deceptive trade practices. MPHJ says that the FTC is greatly overstepping its bounds. The patent-licensing behavior doesn't even amount to 'commerce' by the standards of the FTC Act, because the letters are not 'the offer of a good or sale for service,' argues MPHJ. Furthermore, MPHJ has a First Amendment right to notify companies that it believes its patents are being infringed."

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No (5, Insightful)

Carewolf (581105) | about 7 months ago | (#45964765)

They are right. It is not commerce it is blackmail.

Re:No (1)

TWX (665546) | about 7 months ago | (#45964793)

Sounds to me like they're risking running afoul of racketeering and extortion laws. I hope that they push the issue that far, it'd be fun to watch.

Re:No (1)

ciderbrew (1860166) | about 7 months ago | (#45964811)

I have to agree, I hope this turns out well.

Re:No (5, Interesting)

Anonymous Coward | about 7 months ago | (#45965123)

I have to agree, I hope this turns out well.

Will it, though? If they end up taking that point all the way to the Supreme Court, what will the opposing arguments be?

On the one hand you'd have the FTC probably arguing that these corporations exist only to prey on the market, that they use and/or abuse a system through which they purport to profit by, essentially, extorting compliance fees, all the while without ever actually creating or selling a product, which is to say, without ever actually *adding* to the system (outside of eventual taxable revenue and personal income).

But on the other you'd have a company arguing that they have a right to *notify* a "competitor" when they believe their commercial rights have been violated -- and, strictly speaking, don't they? More importantly, *shouldn't* they? The larger issue is the system itself -- this is truly a "don't have the player, hate the game" situation. I hate patent trolls and any such equivalent entities with passion and wish they'd die a fiery death, but if there are any situations where a company has a legitimate gripe with another company "stealing" their products, then the right to send them a "cease and desist/pay us what you owe" letter should exist, right?

So unless this results in serious reform, which I doubt (and whatever the courts' jurisdictions and power may allow them to do, I doubt even the Justices of the SCotUS would go so far/dare to throw the whole thing away), it'll be a lose-lose situation. We either get a ruling that makes it a lot harder for patent trolls to exist (while also making legitimate infringement harder to fight) or an affirmation of essential rights that would validate patent trolling.

Re:No (5, Insightful)

sirlark (1676276) | about 7 months ago | (#45965661)

The best outcome here would be to have a law introduced saying you are not allowed to rent-seek on patents (or any other IP for that matter). You may only hold a patent if you are actively using it yourself. Not a subsidiuary, or parent company. The company that holds the IP must be using it. If the patent is sold off then the buyer must actively start using it within X amount of time, or it becomes invalidated. Researching and development should buy you a couple of years so you can patent early and still take some time to market.

Re:No (3, Interesting)

hawkinspeter (831501) | about 7 months ago | (#45966021)

I don't see how that would work out. If a garden shed based inventor comes up with a novel, useful nuclear reactor design and patents it, your law would ensure that he'd have to go into the energy business.

The real answer is to not allow patents for things that are "obvious" to people knowledgeable in the relevant field. These obvious patents don't help anyone because almost no-one searches through patents to find out how to do things.

Re:No (1)

ausekilis (1513635) | about 7 months ago | (#45966565)

Even worse is the fact that those searching through the patents are not experts in the field of the patent, nor can they get schooled up on it in a reasonable time. If you have thousands of patents coming in each day, you can't possibly reasonably compare them to the millions (assuming) that have been granted, at least not with any real detail or distinction. "Yea, but this rectangle has rounded corners!" must have been different enough than all the other electronic boxes they've seen before. What's obvious to a biologist isn't necessarily obvious to a mechanical engineer, after all.

Re:No (4, Insightful)

JeffAtl (1737988) | about 7 months ago | (#45969021)

Maybe there should be more options than just "approved" or "rejected". There could be a weaker status than "approved" that forces the burden on the patent holder if it is ever challenged.

Re:No (2)

Sigma 7 (266129) | about 7 months ago | (#45966591)

The real answer is to not allow patents for things that are "obvious" to people knowledgeable in the relevant field.

Obvious is a vague term that could be applied retroactivly (in case everyone suddenly learns how to do something from said patent.)

It might be better to require an invention instead. For example, A method and system for providing online records [google.com] doesn't appear to be much of an invention (both abstract and claim 1 seem to describe any database), and more like attempting to comply with a new standard or industry requirement. Even if there is something novel in that patent, it appears to be buried among the description on something handled by existing technology.

Re:No (1)

hawkinspeter (831501) | about 7 months ago | (#45966767)

Yes, obvious is a vague term and that's part of the problem. Maybe you could get 100 average people in a room and ask them how they would solve a particular problem. If more than 2 of them come up with something almost the same as the patent, then it's obvious and not worthy of being a patent.

Re:No (1)

Anonymous Coward | about 7 months ago | (#45967133)

I don't see how that would work out. If a garden shed based inventor comes up with a novel, useful nuclear reactor design and patents it, your law would ensure that he'd have to go into the energy business.

What's the problem with that? Society grants patent protection, a monopoly on an idea backed by the force of the government, for the greater benefit of society. If your garden shed inventor isn't using the idea, why should he or she be entitled to that protection?

Re:No (0)

Anonymous Coward | about 7 months ago | (#45972885)

I'm not sure I understand your argument.

There are a couple of intended benefits to patents. I'm not saying they work in all cases or even saying they have ever worked in any case, so please nobody jump on me, it's just that these are intended benefits.

One is to reward invention, thus encouraging more invention.
Another is to reward *disclosure*, thus encouraging inventions to be disclosed to the public (so that you do not end up with a monopoly backed by the force of ignorance).

Both of these intentions seem to apply to the garden shed inventor. So why would we not grant him the patent? Even if he doesn't feel up to the task of owning a nuclear power company but instead wants to play with his grandkids or whatever?

You can bicker about whether patents should exist in the first place but I don't see how, once you've agreed they should exist, it at all leads to the conclusion that the inventor should also be involved in manufacturing the product.

Let's assume for the sake of argument that we all agree that patents are a potentially good thing. I think a real problem we have is that:

1. Patents are written in such an obtuse manner, filled with legalese, that it's essentially *not* a disclosure at all. So you can't actually skim through expired patents to gain valuable technology. That means the disclosure aspect isn't working.
2. "Obviousness" is treated as a binary, when it should be coupled with the terms of the patent. If you disclose something that saves everybody else 2 years of research work, then why can you get a monopoly that lasts 20 years? At that point it's not for disclosure, and if we were just rewarding people for making inventions in the first place we could just give cash prizes. Twenty years might be an appropriate monopoly for an invention that might never have happened without some insight. This is inherently difficult to evaluate, but it seems necessary to try.

Re:No (3)

rhazz (2853871) | about 7 months ago | (#45967647)

I don't see how that would work out. If a garden shed based inventor comes up with a novel, useful nuclear reactor design and patents it, your law would ensure that he'd have to go into the energy business.

And what's wrong with that? He can use it, or he can sell it to a company that will use it. Either way he profits and the technology is used and society benefits. Maybe he could've made more money licensing it, but I don't see the societal benefit of maximizing this one person's profit when it enables other entities to do so much rent-seeking.

Re:No (0)

Anonymous Coward | about 7 months ago | (#45967965)

Think wider.

If he licenses it, he'll probably license it to several companies. That creates competition between both the licensees, and anyone else they build reactors for, which either makes the technology cheaper or creates new competition in energy prices; either outcome has societal benefits *before* the patent expires.

If he sells it, the buyer is likely to sit on the technology (ie, using it themselves, but not selling a product based on it); instead of price competition or a cleaner energy sector, the only benefit is to the buyers coffers; society as a whole gains nothing until the patents expire.

It's better for us if patented technologies are in widespread use as quickly as possible; not only does it allow society to reap more immediate benefits, but it also means a new technology is going to be seen by someone who can improve it (or adapt it for use in another field) sooner, which keeps technology progressing.

Re:No (0)

Anonymous Coward | about 7 months ago | (#45968009)

You should not be able to patent something you can't or won't build. So fuck your strawman.

Re:No (1)

hawkinspeter (831501) | about 7 months ago | (#45968395)

It's quite feasible to come up with an idea for something that you don't have the resources or skillset to build (and sell). I'm not a fan of patents, but the idea is to enable that kind of knowledge to be licensed to people who can build (and sell) the invention. Without patents, the theory goes, inventions can die with the inventor. With patents, it can be in the inventors interest to share the invention with other people.

Re:No (0)

Anonymous Coward | about 7 months ago | (#45971509)

Or sell it to a practicing entity, as GP said. "The company that holds the IP must be using it. If the patent is sold off than the buyer must actively start using it within X amount of time, or it becomes invalidated."

If someone has a novel, useful nuclear reactor design, it should be USED. If it's sitting in the hands of someone who isn't going to implement it, then the purpose of the patent has been violated and the patent deserves to be invalidated.

Re:No (2)

sirlark (1676276) | about 7 months ago | (#45973627)

No, my law wouldn't require that he go into the energy business. He would have to sell it to someone in the energy business, or actively continue research until he could either go into the energy business himself or could make the patent attractive enough to sell to someone who could use it. What he could *not* do, is come up with a great idea and not share it because he's not in the energy business. He could *not* come with a great idea and demand exorbitant amounts of money for it thereby preventing it's practical use, because the patent will expire sooner without use, the market won't bear inflated prices. I agree about obvious patents though. Allowing obvious patents breaks my system too.

Re:No (1)

hawkinspeter (831501) | about 7 months ago | (#45973817)

Okay, so you're allowed to sell the patent, but not enforce it if you don't build/sell the invention. That could be a problem when an inventor tries to sell it. The inventor has already made the information in the patent public (by patenting it), but is unable to sue for infringement, so any company can now use that patent for free unless one of the energy companies decides to buy it (for a rock-bottom price) in order to stop the other companies using it.

Re:No (1)

chrismcb (983081) | about 7 months ago | (#45973951)

The whole point of a patent is to promote science. One awesome way to encourage small inventors to invent, is to allow them to license their invention to someone with the means to produce it. By making it so only active users can hold a patent, you've made it very difficult for the little guy to hold on to patents. And thus you discourage them from inventing.

Re:No (3, Insightful)

Tuoqui (1091447) | about 7 months ago | (#45965959)

Just prohibit non-practicing entities from extorting money via patents.

If you have a patent for a better process for making widgets and you arent in the business of making widgets then you dont get to harass widget making companies.

Re:No (1)

hawkinspeter (831501) | about 7 months ago | (#45966125)

Nope - that's not the problem. The problem is patents that are so obvious that everyone infringes them without even realising it.

Re:No (1)

gnasher719 (869701) | about 7 months ago | (#45966315)

Nope - that's not the problem. The problem is patents that are so obvious that everyone infringes them without even realising it.

The idea behind patents is that because of patent protection, I will invent something and publish it as a patent, whereas without patent protection, I wouldn't bother inventing it, so it would never be invented, which would be a loss to society.

If people infringe on a patent without even realising it, then clearly it would not have been a loss to society if the inventor hadn't invented it. Not if other people create it without even thinking that it might be something special deserving a patent.

Even if it isn't obvious, if companies routinely hire people who will figure the same thing out, obvious or not, then having it patented doesn't serve any purpose that helps society.

Re:No (0)

Anonymous Coward | about 7 months ago | (#45967083)

Same problem as before [slashdot.org] : what if a smart guy looks at these widgets, thinks "wow, that's crap, you ought to do it like this", and happens to be completely right?
Should the system now force him into going into the widget-making business?

(The obvious alternative, patent and then sell the patent, doesn't work quite as good as it did: widget-makers know that the only ones who may profit from the patent are themselves, so there's no risk unless another widget-maker buys it. That won't improve the price of the patent...)

Re:No (0)

Anonymous Coward | about 7 months ago | (#45969755)

Same problem as before [slashdot.org]: what if a smart guy looks at these widgets, thinks "wow, that's crap, you ought to do it like this", and happens to be completely right?
Should the system now force him into going into the widget-making business?

If he wants the sole exclusive right to make widgets that way for several decades, and the right to sue anyone else who tries, then UNEQUIVOCALLY YES.

He doesn't wanna start making widgets or sell the patent? Fuck 'im. Society is better off without him sitting there not making better widgets and preventing others from making better widgets.

Re:No (1)

Lord Lemur (993283) | about 7 months ago | (#45968989)

Or in the process of making better widget making devices.

Re:No (1)

chrismcb (983081) | about 7 months ago | (#45973953)

So what you are saying is... screw the little guy, hurray for the big companies with money?

Re:No (2)

sribe (304414) | about 7 months ago | (#45966067)

But on the other you'd have a company arguing that they have a right to *notify* a "competitor" when they believe their commercial rights have been violated -- and, strictly speaking, don't they?

What if they know good and damned well that their patents are trivial and could never survive a challenge? That is what introduces the fraud aspect.

Re:No (1)

hawkinspeter (831501) | about 7 months ago | (#45966433)

I don't see how a lawyer could argue that it was obvious to the company that the patent was trivial and yet not obvious to the patent office.

Re:No (1)

Theaetetus (590071) | about 7 months ago | (#45965403)

Sounds to me like they're risking running afoul of racketeering and extortion laws. I hope that they push the issue that far, it'd be fun to watch.

Unlikely. If they have a non-frivolous legal claim, which it appears they do (they own the patents in question, the patents are considered prima facie valid until invalidated, the people targeted are using the patented technology), then notifying someone of an intent to sue and offering a settlement is not extortion. Think of a similar situation - someone hits your car, causing minor damage to a quarter panel. Since you have a high deductible, you tell them to give you $1k in cash and you'll call it a day without filing suit or getting the insurance companies involved. Are you now engaging in extortion? Of course not.

Re:No (2)

hawkinspeter (831501) | about 7 months ago | (#45966161)

There's one important difference between your example and this case - the number of people targeted. If you're sending out hundreds of letters to people claiming that they damaged your car, then that's extortion.

Re:No (1)

Theaetetus (590071) | about 7 months ago | (#45966721)

There's one important difference between your example and this case - the number of people targeted. If you're sending out hundreds of letters to people claiming that they damaged your car, then that's extortion.

Not if hundreds of people did damage your car. In this case, since the hundreds of people are apparently using the patented technology, then the claims are not frivolous, and it's not extortion.

Re:No (1)

hawkinspeter (831501) | about 7 months ago | (#45966805)

Yes, that wouldn't be extortion. However, it's not common for hundreds of people to damage your car, so it's not the best example.

Re:No (0)

Anonymous Coward | about 7 months ago | (#45967543)

Yes, that wouldn't be extortion. However, it's not common for hundreds of people to damage your car, so it's not the best example.

Your car emits pollutants, which form detritus on my open air parked, but not driven car (so no counter claim). You are throwing trash on my property. Send me a dollar via paypal or I will sue you for it and court costs and take that no-show default judgement to put a lien on your car and or house. Fees, interest and surcharges then accumulate. If you show I drop the case. How much is a day off to go to court worth to you? How many can you afford if 5,000 peopel run this scam and due it from every state in the union?

Nice credit score you have there, be a shame if something happened to it.

Re:No (1)

hawkinspeter (831501) | about 7 months ago | (#45968427)

How would you prove that the specified detritus came from the specified car?

Re: No (0)

Anonymous Coward | about 7 months ago | (#45968795)

He wouldn't - he very clearly said that he'd drop the suit if you appeared in court. He wouldn't have to prove a damn thing.

Re:No (1)

Theaetetus (590071) | about 7 months ago | (#45970121)

Yes, that wouldn't be extortion. However, it's not common for hundreds of people to damage your car, so it's not the best example.

Conceded.

How about this - you own a house on a nice plot of land that happens to be near a major sports/concert venue. Game/show day rolls around, and hundreds of people (you have several acres) decide to park on your land, without your permission, damaging your nice lawn with their tires. If you left a letter on each of their windshields demanding $50 to repair your lawn or you'd take them to court for trespassing, that wouldn't be extortion.

Re:No (1)

JeffAtl (1737988) | about 7 months ago | (#45969169)

Unlikely. If they have a non-frivolous legal claim

That is another huge problem that needs to be addressed though. Companies have used legal threats as a means to extort money from targets who either cannot afford a legal defense or the cost of the defense is greater than the extortion amount.

The RIAA, MPAA and Directv do this by threatening to sue suspected pirates if they did not give them $3,000.

Re:No (1)

drinkypoo (153816) | about 7 months ago | (#45965475)

Sounds to me like they're risking running afoul of racketeering and extortion laws.

This is the sort of behavior that patents were created to enable, so it doesn't sound that way to me.

Re:No (0)

Anonymous Coward | about 7 months ago | (#45964953)

They are right. It is not commerce it is blackmail.

That's splitting hairs, especially depending on what "business" you are in.

Re:No (0)

Anonymous Coward | about 7 months ago | (#45965101)

It is not commerce it is blackmail.

Tomato, tomahto

Re:No (1)

myowntrueself (607117) | about 7 months ago | (#45965183)

But they buy and sell patents. If the parties that they send these letters to had enough money, I'm sure they could buy the patent in question. Sounds like an open and shut case, surely?

Yes please poke the bear (3, Funny)

Anonymous Coward | about 7 months ago | (#45964789)

Hopefully it rips your head off.

Re:Yes please poke the bear (2)

jythie (914043) | about 7 months ago | (#45964831)

*nods* small companies can easily be bullied into submission by legal threats and bizzar arguments, federal institutions not so much. Granted if you are a multi-billion dollar company you can bully the government into leaving you alone, but I doubt this troll has the resources to make much of a mark.

Re:Yes please poke the bear (0)

Anonymous Coward | about 7 months ago | (#45964979)

If this goes to court, and the ruling sets a precedent it could help or hurt small businesses.

Either way I think it winds up being anther shove towards patent reform.

I can't wait to see these morons (MPHJ , not the FTC) under oath in front of a committee hearing. They will do more to harm their "business model" than anyone else could.

Re:Yes please poke the bear (1)

hawkinspeter (831501) | about 7 months ago | (#45966379)

As much as I dislike patent trolls, I think they've got a point with this. Where do you draw the line between patent trolls and other patent holders? This company has a patent (which hasn't been challenged in court yet and so is "valid") and believes that companies are infringing this patent.

It seems that the FTC is assuming that they are a troll, but what evidence do they have? It does seem as though the FTC is targeting this company unfairly in that they haven't targeted other patent trolls.

I'd like a system whereby the patent issuing authority should bare the costs of any over-turned patents. That way if you're the target of an obvious patent that hasn't been challenged, you can defend yourself free of charge. It would also create an incentive for the patent office to not give out obvious patents.

Re:Yes please poke the bear (1)

jythie (914043) | about 7 months ago | (#45966723)

I think the difference, at least where the FTC comes in, is the 'deceptive trade practices', probably from complaints registered with them. Until we see some kind of official document from the FTC it is hard to say why this company is being singled out (or if they even ARE being singled out) or what the actual charges are.

On the other hand, "MPHJ" arguments for why they should be exempt are pretty baseless. Not commerce? Sorry, IP is still commerce. 1st Amendment? Sorry, the government can not stop you from talking but there are many things that when said to other people are crimes when they threaten negative actions unless the other party pays up. These are pretty desperate arguments by someone who found a way to scam money and is discovering that authoritatively creative talk works well on small businesses without the resources to check but poorly when used on actual lawyers.

wait ... wut? (1)

ackthpt (218170) | about 7 months ago | (#45964839)

... trying to show that patent abuse has spun out of control.

Interesting phrase that. So ... what is considered patent abuse under control? Should be advocating it?

Re:wait ... wut? (1)

Jason Levine (196982) | about 7 months ago | (#45966011)

No matter what you do patent abuse will always happen. If the rules are set up and enforced properly, though, this will be kept to a minimum. (This is "patent abuse under control.") The situation we have now all but encourages patent trolls to operate and leaves it to the courts to occasionally push them back. (At an expense to the people being targeted by patent trolls.)

Yeah right (5, Interesting)

gstoddart (321705) | about 7 months ago | (#45964851)

The patent-licensing behavior doesn't even amount to 'commerce' by the standards of the FTC Act, because the letters are not 'the offer of a good or sale for service,'

No, they're an offer for them to pay them money to license your patent, which may or may not even apply or hold up under scrutiny.

If your business model is holding onto patents and getting people to license them, guess what? That's commerce guys.

I sincerely hope these guys get some form of smackdown, or charged under the RICO act or something.

Re:Yeah right (5, Interesting)

gstoddart (321705) | about 7 months ago | (#45965181)

And, as a follow on to that, scan to email has been available in printers for at least 10 years now.

The time to defend that patent was a long time ago.

I'm of the opinion that by the time I can buy something in Staples, the patent situation isn't my problem. I bought a commercial product in good faith, and don't know or care about the myriad of patents involved.

If you think the vendor of said product is infringing your patent, take it up with them. This 'go directly to users of the technology with a shakedown letter and a threat of a lawsuit' should bring criminal charges.

Re:Yeah right (1)

slashtivus (1162793) | about 7 months ago | (#45966283)

I had a big ISA card with POTS plugs on the back in a new (at the time) computer with Windows 3.1 that could receive and print faxes. Gosh that was a very long time ago.

no requirement to defent a patent (1)

Chirs (87576) | about 7 months ago | (#45966311)

There is no legal requirement to defend a patent--that's only required for trademarks.

As the laws are currently written, anyone who infringes the patent can be sued. This includes end users. The EFF has proposed changes to the laws to provide end-user immunity, but those changes have not yet been made. As it stands, your only recourse is to turn around and sue the manufacturer and/or the store for selling you a product and not warning you that you might be liable for patent fees.

Re:Yeah right (1)

rhazz (2853871) | about 7 months ago | (#45967747)

Is there a requirement for a corporate entity to engage in commerce, or otherwise lose their corporate personhood? It would be nice if the individuals involved lost that protection and could be sued/charged directly...

Par for the course (-1)

Anonymous Coward | about 7 months ago | (#45964891)

Somebody tries to protect their intellectual property and they get labeled 'troll'. Same knee jerk reaction you give to posters daring to speak the truth here in the comments.

Yea (0)

Anonymous Coward | about 7 months ago | (#45966511)

Sure, scanning something to email is 'intellectual property' Sure it fucking is. Also, you owe me $1,000 because 'posting opinion' on interwebs is something I have a patent on.. This paper right here in my hand says I OWN THAT CONCEPT...

I was in document imaging.. We did EXACTLY that for a state project.. In 1997. Fucking 1997, 17 years ago. It was not even POP mail or anything I'd ever heard of. Just some wacky in-house email system written on a AS400 or something in like 1980.. But we scanned documents, and emailed them to a 'job mailbox' that was some strange hack they thought up to get the files into the system without giving us direct access to it. 17 years ago.. How on earth this one got through I can't understand.

Rights / Responsibilities go hand in hand. (1)

Anonymous Coward | about 7 months ago | (#45964905)

You have the right to freedom of speech.
You have the responsibility not to use that right for illegal purposes.
    You don't have the right to bully.
    You don't have the right to extort or blackmail.
    You don't have the right to criminally falsify purported legal documents.

You know your patents aren't worth the paper they're printed on, so you don't have the right to get any money from anyone.

First Ammendment? (3, Insightful)

c0lo (1497653) | about 7 months ago | (#45964927)

MPHJ has a First Amendment right to notify companies that it believes its patents are being infringed.

What? Isn't this akin to saying the spam in my inbox is protected by the first ammendment, since the senders have an religious belief/conviction I'd be interested in cheap Viagra?

Re:First Ammendment? (0)

Anonymous Coward | about 7 months ago | (#45965205)

First amendment has freedom of speech in addition to freedom of religion (not that they're protected under either).

Re:First Ammendment? (3, Interesting)

bluefoxlucid (723572) | about 7 months ago | (#45965745)

The "First Amendment" is the go-to for anything that involves communication in the US. I have a first-amendment right to show a 9 year old girl my penis--I mean it's just "expression" right? That's the kind of argument being made here: they're free to "express" that their patent is being infringed.

The problem with that argument is of course the same problem with my extreme example: you can express whatever the hell you want--as above, I expressed the concept of showing my wang to a schoolgirl--but you can't take other actions. You can express that your patent is being infringed; but you can't take legal action if you don't meet the enforceability standards set out by the FTC within their power as granted by the law. That is: if the FTC decides you can't enforce your patent under those conditions, then you can tell people that Company X is using your patented work, you can even claim they're "Violating" it and that the US has all these hair-brained laws about how you can't do anything about it even though it's your god damned right to enforce it.

What you can't do is slam a legal document on their desk and make them expend resources having their lawyers analyze your claim--since the claim is false, you're harassing them and owe them damages. Continued lawsuits could get you barred from the court systems. "First Amendment Rights" don't go this far, just like they don't go so far as explaining pederasty by physical example.

Re:First Ammendment? (0)

Anonymous Coward | about 7 months ago | (#45966993)

The "First Amendment" is the go-to for anything that involves communication in the US. I have a first-amendment right to show a 9 year old girl my penis--I mean it's just "expression" right? That's the kind of argument being made here: they're free to "express" that their patent is being infringed.

You better be careful, I think MPHJ might have a patent on showing your penis to a 9 year old girl. I'm sure they'll license it to you for a reasonable fee.

Re:First Ammendment? (0)

Anonymous Coward | about 7 months ago | (#45966131)

Let's face it, you are interested :)

Re:First Ammendment? (0)

Anonymous Coward | about 7 months ago | (#45969113)

Let's face it, you are interested :)

Face it if you like.

Re:First Ammendment? (1)

Jason Levine (196982) | about 7 months ago | (#45966259)

This is essentially what spammers have said for years. "We have a First Amendment right to send anyone any message we want. Anyone who blocks our messages is infringing on our rights." Of course, it breaks down because spammers might have a right to send their messages, but they don't have a right to have people accept/read their messages.

bombastic and completely unexpected. (5, Funny)

nimbius (983462) | about 7 months ago | (#45964995)

this could never have been the anticipated action of a poorly regarded yet widely recognized patent troll. In other news

toast nationwide falls jellyjam side down!
the blinky signage never lasts long enough to navigate across the road!
politicians found to be corrupt and unreliable champions of their constituents!
icecream zealously consumed begets raging cranial agony!
religious doctrine conspicuously omits reason when confronted by legitimate debate!
im also beginning to suspect this version of windows is in fact NOT the best version ever...despite what the install screen insists.

Re:bombastic and completely unexpected. (1)

gstoddart (321705) | about 7 months ago | (#45965039)

Burma shave, or Time Cube? I can't tell.

Re:bombastic and completely unexpected. (1)

drinkypoo (153816) | about 7 months ago | (#45965491)

A cubic brick
Shaved in the nick
You don't understand time cube
Burma Shave

Re:bombastic and completely unexpected. (0)

Anonymous Coward | about 7 months ago | (#45965497)

no. fuck west virginia.

Squeal, piggy, squeal!!!! (1)

Anonymous Coward | about 7 months ago | (#45965003)

And may you die a painful death after all that squealing!

Not a "good?" Are they idiots? (0)

Anonymous Coward | about 7 months ago | (#45965019)

Intellectual Property is indeed considered a "good" under the FTC act.

Their lawyers need to go back to grade school for some reading comprehension skills...

Re:Not a "good?" Are they idiots? (0)

Anonymous Coward | about 7 months ago | (#45966253)

aside from the fact that there is no such thing as Intellectual Property - it's a falacy, sham, spoof. It's akin to Bigfoot, Sasquatch or Loch Ness Monster - but with a thousand times less evidence of existence.

Speech act? (4, Insightful)

Vintermann (400722) | about 7 months ago | (#45965043)

Legal notification of infringement is an example of a speech act that does more than convey information. Like giving a marriage vow, signing a painting or entering the password to your net bank, it has a function outside conveying information (formal commitment in the first case, asserting authorship and identity in the next).

Using free speech as an argument to defend that is idiotic. They might as well argue that they have a constitutional right to lie on their tax forms, or to their shareholders.

Anything I want to do is free speech? (3, Funny)

Anonymous Coward | about 7 months ago | (#45965177)

Hitting people in the face is free speech. I have a right to communicate to people that I don't like them, and this is the mode of communication that I prefer.

Fire! Fire" (5, Insightful)

Chrisq (894406) | about 7 months ago | (#45965055)

MPHJ has a First Amendment right to notify companies that it believes its patents are being infringed.

This is the corporate equivalent of shouting "fire" in a crowded theater.You really need to be sure that you are right before shouting.

Re:Fire! Fire" (4, Funny)

camperdave (969942) | about 7 months ago | (#45965433)

This is the corporate equivalent of shouting "fire" in a crowded theater.You really need to be sure that you are right before shouting.

I see. You have to shout "Ready" and "Aim" first.

First Amendment bullshit (1)

morcego (260031) | about 7 months ago | (#45965131)

First Amendment is the standard go-to bullshit everyone proclaims right now.
I mean, seriously? If I threaten your life, it is ok because I have a first amendment right? How about if I'm being racist? What if I prank call 911? How about screaming 'FIRE!' inside a crowed theater? Hey, I was just expressing myself, and I have a first amendment right to do so.

Yeah, here is some free expression for you: FUCK YOU!

People should wake up and smell the times, and see that John Locke's idea of "rights" is dead and buried and, if you are still defending those views you are an ignorant self-centered narcissistic a-hole, that should never reproduce for the sake of humanity.

Re:First Amendment bullshit (1)

bluefoxlucid (723572) | about 7 months ago | (#45965765)

If you're being racist, that's a first-amendment right. If you're being racially discriminatory or you're committing assault or vandalism, that's not. But you're well within your rights to tell someone to go back to Africa (actually they're from the Carribean, so you're also stupid).

Re:First Amendment bullshit (1)

morcego (260031) | about 7 months ago | (#45968059)

And still mostly civilized countries don't consider bigotry as "free speech".

Say you go on air and accuse someone publicly of having committed a crime. Not saying he "might have", saying he actually did. You are going to get sued for it. Are you going to argue "free speech"?

"Free speech" is not a carte blanche for "irresponsible speech", "bigotry" or "verbal assault". Racist is considered a "hate crime" is most civilized countries. The fact it isn't in the US tells more about the USA than about freedom.

Re:First Amendment bullshit (1)

bluefoxlucid (723572) | about 7 months ago | (#45968605)

Most "civilized" countries also consider it in poor taste to physically defend yourself from attack. I was raised to be "civilized"--they told us in 6th grade if someone is trying to severely injure us, we should cover our head and absolutely never fight back. Those sort of people, they learned to talk around authority and continue behaving hostilely.

It's uncivil, as well, to intervene where another person is physically threatened. Civil people turn their noses up, maybe call the constable, and retain the conviction that someone else being raped or murdered is not their business.

Going onto the air to accuse someone of committing a crime is called slander. Printing it is called libel. The ultimate defense to either of these is that it is the truth; failing that, it has to be reasonably assumed by the public in general both that what you're saying is false and that you're not intending to actually convince anyone that it's not (i.e. everyone has to be convinced you're just being an ass, and everyone has to believe that you know they think you're just being an ass).

Civil countries carry high penalties for hurting someone's feelings. Used the wrong word to describe someone's skin color? Well there goes 5 years of your life, out in jail.

I prefer the uncivilized, but more rational and intelligent. Too bad I live in an uncivilized shithole run by crazies and morons.

Panda (1)

RandlGuy (2594503) | about 7 months ago | (#45965149)

No name for this was given. Anyone know if this is the same as Operation Panda?

Mafia and the FTC (1)

Akratist (1080775) | about 7 months ago | (#45965155)

Would the mafia collecting protection money not be considered a "good" or "service," then?

Re:Mafia and the FTC (2)

MickyTheIdiot (1032226) | about 7 months ago | (#45965453)

Brings up a point. It's a legal form of Racketeering.

"Nice code you have there. It would be a shame if something happened to it!"

The issue I have with patents.... (1)

bleh-of-the-huns (17740) | about 7 months ago | (#45965255)

Is not the patent itself, or even patent holding companies (to some extent).

What I do have an issue with is those holding companies going after the end users. To me that is double dipping. I purchase a product that does "X" made by "Company Y". Y purchases components and licenses the technology needed to manufacture/perform X, that is the end of it, the patent holder has received his/her pound of flesh.

Going after End users is essentially asking to be paid multiple times for the same product/technology instance.

Re:The issue I have with patents.... (1)

hawkinspeter (831501) | about 7 months ago | (#45966551)

I agree, but it's not really double-dipping as company Y should have paid for licenses for its customers as well or provided indemnity for them. I don't agree with the principle, but patents can be licensed for end-users as well as manufacturers.

A new patent (1)

matbury (3458347) | about 7 months ago | (#45965289)

I want to patent patent-trolling. There's gotta be some money in that ;)

Let us have more free speech (1)

140Mandak262Jamuna (970587) | about 7 months ago | (#45965381)

Of course they have the right under freedom of speech to inform companies that their might have been violated.

And by the same token, every American citizen has the right to call them and tell them they are scumbags. I am not suggesting some slashdotter to find and post the telephone numbers of the company. I am not suggesting all slashdotters call them at all hours of the day to express their opinion on various matters of the world from the scorpion farming in China to speciation chicliad fishes in the lake Victoria. Just saying I have the freedom of speech to say such things and the slashdotters also would be well within their rights to call them and tell them.

not commerce??? (1)

MickyTheIdiot (1032226) | about 7 months ago | (#45965437)

The patent-licensing behavior doesn't even amount to 'commerce' by the standards of the FTC Act, because the letters are not 'the offer of a good or sale for service,' argues MPHJ.

YAY FOR DUMBASS LAWYERS!

So if it's not commerce, then they don't need to make any money off their patents, right? It's all for the good of the world?

Not a good or service (0)

Anonymous Coward | about 7 months ago | (#45965463)

So the right to use intellectual property is not a good or service?

Maybe the presumption that MPHJ Technology is working with is that they provide an inservice... :/

Notorious huh? (1)

3.5 stripes (578410) | about 7 months ago | (#45965499)

Must be a sad situation being a patent troll that gets people to pause for half a second say "well, your face looks familiar"..

Links on the subject (4, Informative)

satch89450 (186046) | about 7 months ago | (#45965509)

Wrong Angle (1)

Jiro (131519) | about 7 months ago | (#45965547)

Everyone is responding based on knowing that the patent troll's claim of patent violation is probably bogus. But the question is over whether the FTC even has jurisdiction over claims of that type. Whether the claim is bogus doesn't come into effect at that stage--you can't say "the FTC can stop the patent troll's lawsuits because their claim is bad", since whether the claim is bad is something that gets decided in the lawsuit (or in the agreement to avoid the lawsuit).

Here's an analogy where the claim is not bad. The police accidentally blow up your house looking for marijuana. Your lawyer tells you that even with the drug war the way it is, a lawsuit is reasonable. So you tell the police "pay for for the damage caused by blowing up my house, or I take you to court". However, at this point the government steps in and says "you are charging people money to blow up your house. By selling the service of letting people blow up your house, you are violating the zoning laws, permit laws, and a whole bunch of other laws related to running businesses. If you try to charge anyone for blowing up houses, including the police, we will put you in jail."

Should they be able to say that? Of course not. There's a difference between selling someone something as a business and "selling" someone something when you are asking them to pay to cover damages. While we may informally say "the patent troll's business is lawsuits", as far as their legal claims go, they're just sitting on the porch and someone else damaged them, and they're only asking anyone to buy a license because that's how you pay for the damages.

I'm not a lawyer so I don't know if that argument will ultimately win in court, but they at least have a legitimate point.

Re:Wrong Angle (1)

bluefoxlucid (723572) | about 7 months ago | (#45965837)

In the story of Soddom and Gomora, God destroyed the city because it was a terrible, horrible place. There was a story of an 11 year old girl who gave a starving traveler a piece of bread--she was hanged and skinned alive for showing compassion. The biblical example of the two visiting angels was that the townspeople were of the mind to maliciously rape the visitors--mainly to inflict pain and humiliation. In short, the whole town was rotten to the core and needed to be fenced in and set ablaze.

There was also a court decision after a traveler had a beggar arrested for hitting him with a rock--the court decided that the traveler had bled from the assault, and so was liable to pay the beggar for the service of bloodletting. This sounds like the sort of moon logic that you're describing above with the police lawsuit, which itself sounds like modern America.

If the Catholic church was paying attention at all, it would pull completely out of America before God smites us.

Re:Wrong Angle (-1)

Anonymous Coward | about 7 months ago | (#45967057)

If the Catholic church was paying attention at all, it would pull completely out of America before God smites us.

But Catholic priests never pull out before the second cumming.

Re:Wrong Angle (0)

Anonymous Coward | about 7 months ago | (#45974503)

> The biblical example of the two visiting angels was that the townspeople were of the mind to maliciously rape the visitors--mainly to inflict pain and humiliation. In short, the whole town was rotten to the core and needed to be fenced in and set ablaze.

Ah yes that story, where God then saves the guy that put his virgin daughter out the door to appease those townspeople and save the angels. Fine example of good Christian morality :)

Re:Wrong Angle (0)

Anonymous Coward | about 7 months ago | (#45968181)

Except that whoever these people are, they are sending out letters with the assumption that the recipient has a scanner AND that if they have a scanner they must have used it in a way that violates their patent. They have no proof or even idea of your wrongdoing at the time they send the letter.

Your analogy is wrong. The police in your story are sending out letters to everyone saying "We think you have marijuana. Check here if you don't have marijuana or check here if you want your house blown up while we search for it. If you check the first box we reserve the right to blow up your house to look for marijuana anyway."

Good luck with that (0)

Anonymous Coward | about 7 months ago | (#45966027)

The "commerce clause" says that the government has the power to regulate "interstate commerce between the states".

Given the ever expanding definition of commerce by the SCOTUS
(hint: does not have to involve money)
- and the fact that it does not have to actually cross state lines
(hint: Wickard v. Filburn)
- and the fact that even non-activity (being alive) can subject you to commerce laws
(hint: Obamacare) ... the rest of the constitution is pretty much meaningless now. Instead of its powers being narrow, defined, and few, the government has interpreted "interstate commerce" as anything you do, don't do and wherever you do it.

MPHJ settlement in NY (1)

SpankiMonki (3493987) | about 7 months ago | (#45966233)

Looks like MPHJ has settled [reuters.com] in New York:

  • "The settlement requires MPHJ to reveal its true identity to targets, describe with "reasonable specificity" its claims, and have a good faith basis for claiming infringements."

The settlement also appears to provide a mechanism for parties who paid MPHJ to "void their license" with MPHJ and get their money back

NY AG's press release here. [ny.gov]

Full text of settlement (Assurance of Discontinuance) here. [ny.gov]

Re:MPHJ settlement in NY (1)

GumphMaster (772693) | about 7 months ago | (#45969953)

Those documents are quite enlightening, Thank you. $1200 per employee for a end-user license: they truly were taking the piss. Obscuring the true identity of the PAE, making false claims about prior licensing, sending "second letters" and "third letters" without having sent the earlier letters, use of NDAs to stifle coordinated resistance... all smell of dodgy trade practises to me. Not surprised that NY , Vermont and the FTC took an interest

"offer of a good or sale for service" (0)

Anonymous Coward | about 7 months ago | (#45967179)

Thats odd, because they're bought and sold like a good. Wasn't there even a case of a patent troll recently being beaten in court and their "assets" (patents) sold off to the party that defeated them?

Nope (0)

Anonymous Coward | about 7 months ago | (#45968385)

Only people have first amendment rights, not corporations or any other entities. We do not recognize "Citizens United".

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