Definition - "Patent Troll"

"PATENT TROLL" - Any party that intentionally misconstrues the claims of their patent to assert it against another. A patent troll does not have to be a non-practicing entity (NPE) or in any particular industry, all that is required is an intentional misconstruing of the claims in an attempt to extort money from another.


Disclaimer - All information and postings in this blog are provided for educational purposes only. Nothing in this blog constitutes legal advice and you should not rely on any information herein as such. If you do not have a signed engagement agreement with me, then you are not represented by me and you should retain your own attorney for any legal issues you are having.

Friday, June 3, 2011

Shortsighted to call App Devs a "mastermind"

Ugh, non-attorney commentators... give lots of bad legal advice.  Even if some conclusions and advice might be similar to that of an attorney, a lot of the analysis I have seen is not correct.  (and it is easy to get some things right, when you post a ton of crap, the percentages are in your favor).  Any person or company involved in highly complex legal issues, like patent infringement, need to receive advice and proper analysis from a qualified attorney.

One particular issue I read just this morning:
At least one non-attorney commentator I have read believes that the application developers could be a "mastermind" when considering divided infringement and thus, the divided infringement theory is skeptical (I refuse to link to his site because he is clearly giving legal advice and he is NOT an attorney).

Of course to come this conclusions, such commentator glosses over many issues and seems to ignore the facts of the case, the elements of the claims, and the law on the matter.

For example, if an attorney had done a similar "mastermind" or "control" analysis, they probably would have discussed this case, Centillion Data Systems, LLC v. Qwest Communications International, Inc. (Fed. Cir. 2011):

The only way that Centillion can establish "use" by Qwest is if Qwest is vicariously liable for the actions of its customers such that "use" by the customers may be attributed to Qwest. Our precedents on vicarious liability, BMC, Muniauction, Inc. v. Thomson Corp., 532 F.3d 1318, 1328-29 (Fed. Cir. 2008), Akamai Technologies, Inc. v. Limelight Networks, Inc., 2009-1372, 2009-1380, 2009-1416, 629 F.3d 1311, 2010 U.S. App. LEXIS 25825, 2009-1417, 2010 WL 5151337 (Fed. Cir. Dec. 20, 2010), and Cross Medical, analyze the circumstances in which the actions of one party ought to be attributed to a second party for purposes of direct infringement — vicarious liability. In BMC, we noted that "[f]or process patent or method patent claims, infringement occurs when a party performs all of the steps of the process." 498 F.3d at 1378-79. However, we noted that in some instances, one party could be liable for infringement of a method claim even if it did not perform all of the steps. This vicarious liability arises when one party controls or directs the actions of another to perform one or more steps of the method. Id. at 1379. We confirmed this approach for method claims in Muniauction, 532 F.3d at 1328-29  [*19]  and recently explained in Akamai Technologies that for infringement to be found when more than one party performs the steps of a method claim, an agency relationship or other contractual obligation to perform the steps must exist. See Akamai Techs., 2010 U.S. App. LEXIS 25825, 2010 WL 5151337, at *6. In Cross Medical, we considered the issue of vicarious liability for making a claimed apparatus or system under § 271(a). The claim related to a medical device and, as properly construed, required contact between the device and human bone. 424 F.3d at 1310-11. In the particular facts of that case, the accused manufacturer created the accused product, but did not perform surgeries to bring the device into contact with bone. We held that the manufacturer did not "make" the claimed apparatus. We held that if anyone made the claimed apparatus, it was the surgeon who implanted the accused device, possibly bringing it into contact with bone. Id. at 1311. We noted that the manufacturer would not be liable for the surgeon's direct infringement unless the surgeon acted as an agent of the manufacturer. Id.

Following our vicarious liability precedents, we conclude, as a matter of law, that Qwest is not vicariously liable for  [*20]  the actions of its customers. Qwest in no way directs its customers to perform nor do its customers act as its agents. While Qwest provides software and technical assistance, it is entirely the decision of the customer whether to install and operate this software on its personal computer data processing means."
With this in mind, I find it very hard for an application developer to be considered the "mastermind" or in "control".

These are very complex legal issues that need a great deal of legal analysis and advice from a QUALIFIED ATTORNEY.

If you are threatened, do not take your advice from non-attorney bloggers.  Hire a qualified attorney to advise your options and legal strategy.

Just my opinion, go hire your own attorney for legal advice.


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