Atlanta lawyer and inventor Scott Horstemeyer has responded to a critical posting on one of his patent as “stupid patent of the month” by filing what is clearly the stupid lawsuit of the month. The defendant is the Electronic Frontier Foundation which only expressed its opinion on the patent but Horstemeyer appears to believe that the expression of such opinions can be defamation. Also named is Daniel Nazer, the EFF lawyer who wrote the post.
The patent, assigned by Horstemeyer to Eclipse IP, is for a method of updating delivery information. While a federal court according to the positing had rejected patents “in the same family” Horstemeyer allegedly did not disclose those decisions to the patent examiner.
According to press reports, Eclipse owns more than 20 patents and is described as a “‘patent troll’ that has filed more than 100 lawsuits.” The company is accused of routinely sending demand letters to companies threatening lawsuits and reminding recipients that lawsuits “can be expensive and time consuming.”
The post said that Hostemeyer has “shown advanced skill at gaming the patent system.” He is described in the complaint as a “prolific inventor” who has been awarded 28 patents and who enjoys an “unblemished career and reputation” that was damaged by the article.
It was the reference to the earlier decisions that seemed to generate the greatest objections with counsel for Horstemeyer demanding a retraction that acknowledged that the prior ruling was not material.
Outside counsel Eric Schroeder of Bryan Cave said that the article is “clearly subjective opinion and hyperbole” that is protected by the First Amendment. He is right in my view.
The case bears similarity to Wilkow v. Forbes, where Forbes Magazine was sued by Marc Wilkow after reporting that he paid only $55 million on a $93 million loan. A article dealt with the case of Bank of America National Trust & Savings Ass’n v. 203 North LaSalle Street Partnership. The article said that the partnership led by Willow “stiffed” the bank. Judge Easterbrook and the panel not only rejected the claim as opinion but noted that the conduct described might even be viewed as a positive attribute by readers of an aggressive businessperson.
We have previously discussed law firms who routinely bully people over trademark or copyright claims in search of quick settlements.
Whether or not this is one such law firm, it does not help matters to sue publications over their expression of opinion as to your tactics in an effort to show that you are not a troll.
Here is the letter sent to the publication.