Patent troll sues the Electronic Frontier Foundation over a blog post

EFF refuses to pay toll to troll.


Curt Hopkins


Published Jun 2, 2015   Updated May 28, 2021, 4:47 pm CDT

The Electronic Frontier Foundation is being sued for defamation by one of the patent trolls it frequently tussles with.

The subject of its latest Stupid Patent of the Month blog post, EFF’s Daniel Nazer describes Eclipse IP LLC as belonging to “an elite group of trolls (such as Arrivalstar and Geotag) that have filed over 100 lawsuits.”

Patent troll are shady law firms that will file patents with extremely vague elements. This allows them to sue anyone who breaks the patent. Their methods parallel spammers, who fire out a large number of fraudulent appeals, knowing most of their victims will not respond and count on a small percentage of the recipients falling for the scam. Unlike spammers however, a lawsuit (however ill-founded) requires money to defend.

The patent troll best known to Daily Dot readers might be Personal Audio LLC, who unsuccessfully claimed ownership of podcasting as a whole.

Eclipse’s featured patent, US Patent No. 9,013,334, is a good example of the vagueness that characterizes this sort of thing. A patent is supposed to be awarded to someone who has come up with an intellectually distinct product or process.

Eclipse claims to have innovated a novel method of updating delivery information. The patent document describes the originality: “Notification systems and methods that permit change of quantity for delivery and/or pickup of goods and/or services.”

Its broadness inspired Nazer to explain that were you to agree to deliver a case of beer to someone, then receive a text changing the order from one case to two, and did so, you could be sued by Eclipse for patent infringement.

Eclipse owns a “family” of about 20 patents, all having to do with delivery. This patent, shorthanded “334,” was approved by the U.S. Patent and Trademark Office after a federal court invalidated claims the company made on other patents in that family. The EFF suggests Eclipse did not fulfill its legal obligation to disclose that relevant information in the patent application.

The EFF believes this is a result of problems built into the patent system itself, specifically problems with what is called “prior art.” These are the “pre-existing publications and technology that could invalidate a patent by showing that the invention wasn’t new.” The PTO spends only 18 hours per application in the search for prior art.

Eclipse’s Scott Horstemeyer filed suit against the EFF for this post, alleging it defamed him and demanding the nonprofit remove it and repudiate it. The EFF and its legal counsel declined to do so, insisting that there were no errors in fact and Nazer’s interpretation was protected by the Constitution.

Horstemeyer is the creator of the Eclipse patents, and has prosecuted their alleged violations. He did the same thing for another elite patent troll company, Arrivalstar.

This is the first defamation suit brought against the EFF, Deputy Director and General Counsel Kurt Opsahl told the Daily Dot, so there is, as it were, no precedent for its success.

“We believe it to be meritless,” said Opsahl, “and look forward to defending against it vigorously.”

Horstemeyer did not respond to our inquiry.

Photo via Sam Howzit/Flickr (CC BY 2.0)

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*First Published: Jun 2, 2015, 11:56 pm CDT