Electronic Frontier Foundation’s Lawsuit Adventures

Electronic Frontier Foundation

Patent Troll

noun, informal, derogatory

A company that obtains the rights to one or more patents in order to profit by means of licensing or litigation, rather than by producing its own goods or services.

“Patent trolls are quashing the next, nascent wave of tech innovation.”

 

A direct definition from Google search engines.

 

On June 30, 2016, the Electronic Frontier Foundation published it’s “Stupid Patent of the Month” Blog posting which is paraphrased below:

— US Patent No. 6,690,400, claims the idea of using “virtual cabinets” to graphically represent data storage and organization. While this is bad, the worse news is that the patent’s owner is suing just about anyone who runs a website.

The patent is owned by Global Equity Management (SA) Pty. Ltd. (“GEMSA”). GEMSA is incorporated in Australia and appears to have no business other than patent litigation. The patent began with a company called Flash VOS. This company once offered a product that allowed users to run multiple operating systems on computers with x86-compatible processors. The patent describes a graphical user interface for this system. The interface allows users to interact with “graphical depictions of cabinets” that represent memory partitions and different operating systems.

Flash VOS didn’t invent partitions, didn’t invent virtual machines, and didn’t invent running multiple operating systems on a single computer. All of these concepts predate its patent application, some by decades.

The patent’s claims require very specific structures. Claim 1 requires “a secondary storage partitions window” and “at least one visible cabinet representing a discrete operating system.” A user interface must have all of these features to infringe the claim.

In the past year, GEMSA has sued dozens of companies In each case, it makes the bare assertion that the defendant’s website infringes the patent. For example, it simply states that “AIRBNB maintains, controls and/or operates a website with a graphical user interface (“GUI”) at www.airbnb.com that infringes one or more claims of the patent.”

GEMSA doesn’t explain how Airbnb’s website satisfies highly specific claim limitations like “a virtual cabinet representing a discrete operating system.” In fact, the accused website bears almost no similarity to GEMSA’s supposed invention.

Every one of its cases was filed in the Eastern District of Texas, where we have long complained that local rules favor patent trolls. —

For the full article check out – http://www.eff.org/deeplinks/2016/06/stupid-patent-month-storage-cabinets-computer

 

The article describes the patent, the company, and its tactics in more depth and labels it as a patent troll.

 

GEMSA did not take kindly to these “accusations” and took the American non-profit to court in its home country, Australia, claiming defamation of character via slander.

 

GEMSA asked for an injunction prohibiting the EFF from publishing anything about the company and its various patents and asked for its “Stupid Patent of the Month” post to be taken down. The Australian judge agreed.

 

In light of this the EFF simply refused.

 

This prompted GEMSA’s lawyers to send rather harsh, demanding letter to the EFF in January insisting that they delete the blog post and pay approximately $750,000. It also instructed the EFF to rewrite other parts of the rest of the internet:

— We further demand that you make immediate arrangements for any links to the article to be removed from the world wide web including any and all other websites which references the infringing material. If you do not do this, we will be forced to do so at your expense. —

The letter in question is publicly viewable – http://regmedia.co.uk/2017/04/14/eff-lawsuit-gemsa-lawyer-letter.pdf

 

The EFF decided instead to countersue, filing its own lawsuit in California. It asked a US district court to rule that the Australian injunction was unenforceable and made the following statement on their site:

— This order, which purports to silence expression of an opinion, would never survive scrutiny under the First Amendment in the United States. In a complaint filed in San Francisco yesterday, EFF asked a federal district court to rule that the order is unenforceable. Under the 2010 Securing the Protection of our Enduring and Established Constitutional Heritage Act (SPEECH Act), which states foreign orders are not enforceable in the United States unless consistent with free speech protections provided by the U.S. and state constitutions, as well as state law.

The injunction issued by the South Australian court purports to order EFF to remove the blog post and forbid EFF from speaking in the future about any of GEMSA’s intellectual property. It states that failure to comply could result in the seizure of EFF’s assets and prison time for its officers.

“We are going to court to ensure that EFF is not silenced by foreign laws that forbid speech our Constitution protects,” said EFF Deputy Executive Director and General Counsel Kurt Opsahl. “GEMSA may not like what we’ve said about its patent, but we will defend our right to express our constitutionally protected opinion.” —

For the EFF’s full statement follow here – http://www.eff.org/press/releases/patent-owner-cant-use-foreign-court-order-block-eff-speaking-out

 

The EFF argues, with more than some justification, that calling a patent “stupid” falls very firmly in the lap of opinion and within the First Amendment as well as the facts of how this company handled its operations.

 

One might say that in the US there is already a patent on free speech and that GEMSA is fighting against its own patent rules.

 

There is currently a lot of argument and push for patent reform with the US Supreme Court waiting to weigh in on the topic. This case could be a major benchmark for this practice. Either way it certainly has brought it into a more visible light.

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