Patent Law Federalism (Part II): Protecting the Free Speech Interest of Patent Owners to Conduct an Out-of-Court Patent Enforcement Campaign

By Dennis Crouch

Activision TV v. Pinnacle Bancorp (D.Neb 2013)

In a second opinion in as many weeks, Federal Judge Bataillon (D.Neb.) has again ruled against the Nebraska State Attorney General and the state’s campaign against patent enforcement activities. [Link to Decision] Activision holds several patents that essentially cover the operation of a digital menu board with photographs. See U.S. Patent Nos. 8,330,613 and 7,369,058. And the company has sued a host of defendants and has sent out cease-and-desist letters to an even larger group, including some in Nebraska.

In response to those enforcement activities, the Nebraska Attorney General sent a letter to Activision’s litigation counsel ordering the firm to “immediately cease and desist the initiation of any and all new patent infringement enforcement efforts within the State of Nebraska pending the outcome of [the Attorney General] office’s investigation.”

In the first opinion, Judge Bataillon held that the firm could continue to represent Activision in Federal Court patent litigation by enjoining enforcement of that aspect of the Attorney General’s order. Following that order, Activision pressed on – asking the court to also enjoin the entire Attorney General order so that the firm could continue to pursue new out-of-court enforcement activities – such as contacting infringers and demanding that they pay for licenses. The Court has now sided with the patentee and against the Attorney General – finding that the restriction on enforcement activities likely operate as a prior-restraint on speech in violation of Activision (and its Attorneys) First Amendment rights of Free Speech and their Due Process rights.

The court finds the cease and desist order in this case is akin to a prior restraint. . . . The court finds Activision is likely to win on the merits as there is no claim or evidence to date of bad faith. Further, as there is no claim of bad faith, federal law governing these patents, including sending initial letters to businesses believed to violate a patent owned by Activision, is preempted by the federal government. Also, Activision has a First Amendment right to associate with counsel of its choosing without interference from the state of Nebraska. In addition, the cease and desist order operates in this case as a prior restraint on Activision’s speech and association rights. For these reasons, the court finds Activision is likely to win on the merits. . . .

The court is deeply concerned about the ability of the Attorney General to issue cease and desist orders, prior to the conclusion of the investigation, prior to any negative findings, prior to any hearings, and prior to permitting submission of documents and evidence by the Farney Daniels law firm. On the contrary, the Attorney General sent a request for information to Farney Daniels the same day it sent the cease and desist order, and gave Farney Daniels until August 18, 2013, to respond. Farney Daniels responded, and no further actions have been taken. The inability of Farney Daniels to submit such letters to businesses in Nebraska clearly infringes on the First Amendment rights of Activision to be represented by the counsel of their choice.

This opinion comes as a result of Activision’s motion for preliminary injunction (that has now been granted). Thus, the court found that the patentee was likely to win its case on the merits and that the Attorney General order was causing immediate irreparable harm. Under the laws of Appellate Procedure, the Attorney General has the right to immediately appeal this decision to the Court of Appeals to the Federal Circuit (where he would lose).

An important aspect of this decision is that it is not limited to patent law issues. Rather, the same First Amendment and Due Process claims here would apply any time the Attorney General issues a cease-and-desist order prior to conducting any investigation.

= = = = =

To be clear, the court did not shut-down the Attorney General’s investigation but instead found that it is improper for the Attorney General to compel silence without even conducting an investigation. “The court notes, there is no doubt the Attorney General generally has the power to investigate activity that it believes violates state law. . . . If … at some point during the investigation evidence supports a claim of bad faith, the Attorney General is free to revisit this preliminary injunction with the court.”

109 thoughts on “Patent Law Federalism (Part II): Protecting the Free Speech Interest of Patent Owners to Conduct an Out-of-Court Patent Enforcement Campaign

  1. Hey guys I finally found what is probably the root cause of NWPA and anon’s malfunction when it comes to software “structure”. link to web.mit.edu…It’s MIT’s fundamental 101 documentation, wherein they will use the term structure every other page and of course be using it in a different manner than it is used in patent law without ever making it clear that they are doing so for the mentally handicapped reader.

    1. An interesting quote straight from an expert’s mouth re 103:”Thus, programs must be written for people to read, and only incidentally for machines to execute.”

      1. This is no different than being told that circuits need to be designed so that people can understand them to modify them, or that doors need to be designed so that people can use the door.

        1. Well, it’s different in at least one respect. In one we’re talking about writing, and in the other we’re talking about designing.

          1. 6,Your gleeful bumbling like you discovered a super secret document reminds me of the glee that Malcolm had when he was the first to share the USPTO official Office takeaway from the Prometheus decision.Good times.

            1. “super secret document”I never said it was super secrit, I just noted that I discovered something that would help to explain where your malfunction has arisen.

            2. LOL – and yet, there is no malfunction on my part, and your lack of appreciation of what the document actually does say is what reminds me of Malcolm’s massive FAIL with the posting of the USPTO Prometheus integration link.As I said: good times.Please, 6, let’s chat again real soon.

            3. What is this boiling down to like, “art appreciation” or something now? Perhaps you’re thinking I’m only a true scotsman if I appreciate what the art says?

            4. Malcolm’s massive FAIL with the posting of the USPTO Prometheus integration link.Just like your massive fail when you wandered into the stairwell by the elementary school in violation of your probation while you were still wearing your ankle bracelet.Good times.Also, fun game. I assume you’ll start the next round, as usual?

            5. your lack of appreciation of what the document actually does sayOh golly, Patent Jeebus is going to tell us what the document “actually” says! Get ready to bow down before the profound wisdom of Patent Jeebus!*

            6. the USPTO official Office takeaway from the Prometheus decisionWhat about it, Trollboy? Nothing in the Office guidelines suggests that method claims in the form [oldstep]+[newthought] are eligible for patenting. In fact, if you follow the guidelines you’ll reach the opposite result.You need me to walk you through this again? Or are you going to try a little harder not to act like a “crazy person” (<– remember those words? Let me know if you’ve forgotten the context already).

            1. Yeah bro, and I lulzed the whole time. For example, programs apparently must be written primarily for people to read, and only incidentally for machines to execute. As in it is a quote directly from an expert directly refuting the rational that is behind the courts having supposedly made an exception to the PMD applying to CRMs.

          2. it’s different in at least one respect. In one we’re talking about writing, and in the other we’re talking about designing.That’s kind of an important and obvious distinction. I wonder why NWPA wasn’t able to see that?

    2. HAHAHAHAHA also a goodie:”Underlying our approach to this subject is our conviction that ‘‘computer science’’ is not a science andthat its significance has little to do with computers.”"The computer revolution is a revolution in the waywe think and in the way we express what we think.The computer revolution is a revolution in the waywe think and in the way we express what we think.”

    3. Wow, they even define abstraction right on the first page of chapter 1:”The acts of the mind, wherein it exerts its power oversimple ideas, are chiefly these three: 1. Combiningseveral simple ideas into one compound one, and thus allcomplex ideas are made. 2. The second is bringing twoideas, whether simple or complex, together, and settingthem by one another so as to take a view of them at once,without uniting them into one, by which it gets all itsideas of relations. 3. The third is separating them from allother ideas that accompany them in their real existence:this is called abstraction, and thus all its general ideas aremade.John Locke, An Essay Concerning Human Understanding(1690)”

      1. You still don’t understand the ladders of abstraction do you? Actually, I looked at the intro circuits class at MIT and at the first lecture (sorry no link) he defines the ladders of abstraction.

        1. What do ladders of abstraction have to do with the textbook laying out a quite acceptable definition of abstraction right in the opening?

          1. “What do ladders of abstraction have to do”,LOL, yes 6, you seem to have forgotten that you never delivered on your promise concerning the ladders of abstraction. The following quote helps explain why you were so afraid to do so:“These skills are by no means unique to computer programming.The techniques we teach and draw upon are common to all of engineering design.”That’s rather important.

            1. So skills and techniques being common to design in engineering is somehow a reason for me to be “afraid” to do something? Lulz. Anon. You kidder you.

            2. “You kidder you”You are the one who weaseled out of a promise, 6.This reference too, shows why – if you ever venture into a substantive explanation of your ‘abstraction’ theory and try to account for the ladders of abstraction, you will fail.You have already made some serious back-peddling with an addition of ‘generic’ when you last looked into ladders of abstraction (I remember the thread, because Leopold attacked me in a smarmy manner on that thread, demanding a reference and I gave him two – he has yet to answer my return questions from that thread.Seems to be quite the pattern.

            3. “You are the one who weaseled out of a promise”I thought I did discuss that for you anon. But now what, you’re upset that I didn’t discuss it directly enough with you in specific? I’m pretty sure I “accounted” for it as well during that discussion. “You have already made some serious back-peddling with an addition of ‘generic’ “Yeah it was in that discussion as a matter of fact. Good that you remember cause I didn’t fav that thread for you.

    4. OMG it just keeps getting better and better!”We are about to study the idea of a computational process. Computational processes are abstract beings that inhabit computers “

    5. Christ sakes, it even talks about how all this is akin to magic:”People create programs todirect processes. In effect, we conjure the spirits of the computer with our spells.”

    6. Also slightly interesting:”The basic idea of data abstraction is to structure the programs that are to use compound data objects sothat they operate on ‘‘abstract data.’’ That is, our programs should use data in such a way as to makeno assumptions about the data that are not strictly necessary for performing the task at hand. At thesame time, a ‘‘concrete’’ data representation is defined independent of the programs that use the data.”

    7. 6, all of this is a fun read, but it all boils down to an introductory professor saying that software has structure. In fact, the your your quotes are merely expressing that there are different ways of structuring software just as there are different ways of making doors and circuits.Let me sum all this up for you: software has structure. It can be structured different ways some of which make it easier to write and modify. Software needs to be written with the goal that people can understand its structure and so that it is compatible with the way people think so they can use it and understand it.This, by the way, sounds like exactly the same thing an engineer is told in mechanical and electrical classes. (and some of what an architect is taught.)And, one more point: the software/firmware/hardware equivalency is supported by the fact that MIT has merged the electrical engineering and computer science departments.Why you think this document supports anything you contend is simply bizarre. Check out the class on theory of computation and listen to the lecture on the Church-Turing Thesis. Or remain willfully ignorant and contemptable.

      1. “Let me sum all this up for you: software has structure.”Yeah, but not the kind we’re talking about in patent lawl. Note what else the good prof has to say.

        1. “Note what else the good prof has to say”,LOL, yes please note:“These skills are by no means unique to computer programming.The techniques we teach and draw upon are common to all of engineering design.”That’s rather important.

        2. software has structureSo do explanations and arguments. Are they eligible for patenting now? What if I write a new useful argument down in a book? Then we have a new useful composition of matter. Eligible for patenting? It would seem so under 101, unless you want to invoke some baroque extratextual “judicial” argument that would leave this useful statutory matter out of 101 but keep “software” in place. Is that what you want to do?

      2. Let me sum all this up for you: software has structure.What’s the structure of software that tells Grandma what the most popular public-domain DVD title is for less than $9.99, shipping included, wherein said DVD can be ordered by a mobile device while in a car?Describe that structure for everyone. Just one very specific example would be nice. What does that structure look like?

        1. Instead, MM, tell us how could a machine without structure offer a suggestion to your grandmother? How would that be possible? What exactly is a machine that can offer movie suggestions to millions of people? A machine without structure? I must have missed that lecture on MM-esk physics where machines without structure perform useful work.I am sure I have gone through the structure before and have no desire to do homework for you.

          1. MM, tell us how could a machine without structure offer a suggestion to your grandmother?Why? The issue is not whether “some” structure exists, NWPA. Everybody knows that compositions of matter and articles of manufacture have some structure. I never claimed otherwise. Who did? Nobody did, as far as I know.When attempting to patent an allegedly new composition or allegedly new article of manufacture with an allegedly “new function”, the issue is: what is the allegedlynovel structure that imparts the allegedly new functionality? Without the structure, you are merely claiming the functionality itself. “Functionality” is not eligible subject matter.

          2. I am sure I have gone through the structure beforeNo, you never have. What you always do instead is simply recite your conclusion, over and over and over. You never describe for us what the “structure” of a typical “software function” is. There is a good reason, of course, why that never happens. Most of us know what that reason is. Do you?

    8. 6,You forgot one very important quote:“These skills are by no means unique to computer programming.The techniques we teach and draw upon are common to all of engineering design.”That’s rather important.

    9. And what is the “root” cause? And what is the malfunction? And what is the nexus between this post and the malfunction?

      1. The root cause is the overuse of the term “structure” to simply mean “The interrelation or arrangement of parts in a complex entity” or similar as opposed to its traditional meaning in the patent context throughout the teaching of software edumacations to simpletons who don’t pick up on the difference in usage in the two contexts. The malfunction is the failure to recognize the difference in usage of the word in the two contexts. The nexus between this post, and the reference in the post, and the malfunction is that the reference herein shows what is causing the problem, aka professors not helping their simpleton students out with what they mean by words, demonstrates that the problem isn’t really the simpleton’s fault, and likewise suggests a course of corrective action, aka professos getting more specific for their simpler students and making courts and other relevant institutions aware of the the problem and its solution in the mean time.

  2. The complaint filed by Activision against Century Link says only this about the infringement:Defendant has been directly infringing and continues to directly infringe one or more claims of each of the Activision Patents in the United States at least by using digital signage systems in locations throughout the United States in violation of 35 U.S.C. § 271 (a)In other words, Activision believes it owns “digital signage systems.” The attorney who signed the papers is Jennifer Parker Ainsworth, a proud citizen of Texas and apparently a lifelong resident. Jennifer was born roughly 45 years ago so we know that she grew up with “digital signage systems” that were used long before the dark ancient age of 1998 when this j*nk was filed. And yet she signed the papers.Anything for money, I guess.Hey, Jennifer, I’ve got some “digital signage” going on right now. It’s a picture of you next to a picture of a troll and some text underneath that says “Will do anything for money”. Better run and tell your client that there’s some pennies to be scraped up (but please be careful not to knock over any old ladies who might be standing in your way).

    1. 6etcYou are calling a person a prostitue for prosecution of an application that got allowed? Or for treating a granted patent as assumed valid? This comment technology needs something stronger than a down button.

      1. You are calling a person a prostitueThose are your words, brother, not mine. I’m just calling someone who goes around trolling with a j*nk patent “a patent troll”. Sort of like calling people who chase ambulances around “ambulance chasers.”treating a granted patent as assumed validAssumed valid? What? I think you mean “presumed to be valid for the purpose of determining who has the burden of proof in court”. Given the history of such patents, there is little reason for a computer-implemented method granted by the USPTO to be “assumed” valid. People — particularly experienced attorneys — who make such assumptions are naive or lazy.Please tell me: if I was granted a patent on “Using a computer and a monitor to display a photo and associated text” and I sued every member of your family in Bananaville, Texas, would you send me some chocolates for “promoting progress”? Or would you first charge your family members for the time you spent reading the specification and prosecution history to “determine what the claims actually cover”, and then send me the chocolates? Or maybe you’re not legally allowed to charge people for such services?Do you reall think somebody owns “using digital signage”, George? In 2013? In the United States? Seriously?The system is broken and the bottom feeders are rushing in. People who can’t actually make stuff sit around and “innovate” ways to sue people who do make stuff, or who provide services. And there are always a few lawyers eager to help those grifters out. Because there’s nothing else to do with a patent law degree, is there? Not in Texas, apparently.It’s important to shine a light on the failures of the patent system, especially when those failures are compounded by relentless attempts to force other people to pay for those failures. If every patent attorney or patent agent just sits back and shrugs as if the current state of affairs is “nothing new” then things are going to get a whole lot worse before they get any better.

        1. Why do you always speak as if you know anything about innovation? You don’t. Do you? Tell us what experience you have in innovation? I have 35 years of experience in innovation. And, MM, you know squat. You are a flea who knows how to type.

          1. Why are you bringing up “innovation” in this context? What on earth do the claims being asserted here have to do with “innovation”? The use of programmable computers connected to monitors for displaying information? Exactly when was that technology “innovated”, in your opinion? You seem to think you’re some sort of expert. Tell everybody what you know. All I know is that I grew up with that technology and I wasn’t born in 1998.

          2. NWPA: I have 35 years of experience in innovation.That’s nice. I have more years of experience in “innovation” than that. Like most people, I’ve been “innovating” since I was first presented with solveable problems that could be described in a unique way. Of course, the vast majority of people never bother to consider that they should be calling a patent lawyer and trying to get broad patent coverage for those solutions, just in case there’s someone out there with deep pockets to pick.

            1. No person that respects technology and science would mock the Church-Turing Thesis.No person that respects technology and science would say software has no structure. (For fun, go to Google scholar and type in software structure.)

            2. “No person that respects technology and science would mock the Church-Turing Thesis.”All roads lead to the church-turing thesis eh NWPA?

            3. NWPA: No person that respects technology and science blah blah blah blah no true Scotsman blah blah blahIs this all you got? When do you think “digital signage” was “innovated”, NWPA? C’mon. You were all growed up in 1998. Were there “digital signs” back then? You know, monitors that displayed “programmed” information on them? Why not just answer the question instead of hurling insults?

            4. So what’s your point? Should this have not issued due to 102/103? Probably true. But, MM, what is your POINT? You say from this that there is no innovation in information processing? You say from this that innovation comes only in big steps? You say from this that people should have to literally disclose every embodiment rather than functionally claim to indication elements that recite known solutions?All of these I disagree with. There is no nexus between your post and the points above except 102/103 rejection should have been issued. You are a disruption to the application to the law. You just like Lourie are a detriment to our system of justice.The problem with your post is you try to use it to prove points that it does not support. You mock statements about the Church–Turing Thesis, you mock statements about hindsight, you mock statements about the ladders of abstraction, etc.You are a joke. A clear policy pusher. Your statements almost never support the proposition you are trying to use them to support.So, I will say it again, what is your POINT? What propositions do your repeated and endless posts with claims that should have been rejected under 102 and/or 103 support?Moreover, you do not address my repeated assertions that Benson is the cause of these patents issuing—Benson so mischaracterized information processing that it made it impossible for the PTO to properly analyze information processing patents.And, again, MM, machines that are going to replace 50% of the current jobs are not useful, not innovative? How is that possible? You are constantly betrayed by reality.

            5. You say from this that there is no innovation in information processing? You say from this that innovation comes only in big steps? You say from this that people should have to literally disclose every embodiment rather than functionally claim to indication elements that recite known solutions?Those things that “you say” are just your paranoid mis-reading of my comments, NWPA. They’re not worth addressing beyond that.machines that are going to replace 50% of the current jobs are not usefulAgain, you’re arguing with a strawman.What propositions do your repeated and endless posts with claims that should have been rejected under 102 and/or 103 support?The proposition is that, at least with respect to the patenting of computer-implemented “innovations”, the patent system is utterly worthless and probably beyond repair. Because patents on computer-implemented “innovations” are completely unnecessary and more likely counter-productive to the promotion of any meaningful “progress”, we should simply purge them from the system entirely. That’s one of my propositions, at least. I’m pretty sure I’ve made that crystal clear already.

            6. OK. So, you contend that proposition you state above is supported by your anecdotal presentation of several patents that (admittedly) should have been rejected under 102/103, or maybe 112.I think not.

            7. So, you contend that proposition you state above is supported by your anecdotal presentation of several patents that (admittedly) should have been rejected under 102/103, or maybe 112.In part, yes. As you’re aware, those “several patents” are just the tip of the iceberg. And it’s part of a seamless web of observations made over many years of closely watching and, indeed, participating in the game playing at the Great Patent Casino.

  3. Since the Nebraska AG isn’t a court and especially not a federal court, it can’t issue any orders to anyone outside a few Nebraska state agencies. I don’t see why a federal judge would get involved in an action like this.If some AG, especially an out of state AG, sends you a letter ordering you to do something it has exactly the same force as a letter from your aunt Sally ordering you not to eat too much ice cream. It has no force of law at all.Now the AG has its choice of judges and grand juries that will issue orders and subpoenas and and indictments at its command. When it does, then the federal courts can start to care. What is described here is just a federal judge writing a letter back telling you to eat as much ice cream as you like, but mind the consequences later.

    1. I don’t have PACER access, but the publicly available archived docket indicates that Activision TV’s counsel wants to withdraw from the case, and they were trying to find new counsel as of August 19. (This would be the defendant’s third counsel in the case, since they fired their first counsel.) There was supposed to be some new activity scheduled for September 23, but the archive hasn’t been updated recently enough for that.http://ia601009.us.archive.org

  4. This opinion comes as a result of Activision’s motion for preliminary injunction (that has now been granted). Thus, the court found that the patentee was likely to win its case on the meritsRight. About those patents …Activision holds several patents that essentially cover the operation of a digital menu board with photographs. See U.S. Patent Nos. 8,330,613 and 7,369,058.Because displaying photos is, like, so different from displaying text. It’s, like, way smaller pixels. And you know what’s even more different? Photos of text. But that’s nothing compared to displaying text that describes food. That’s a whole different animal. Wait? It’s displaying text about food and a picture of food? Seriously? Wow. Oh no. Don’t tell me. The text isn’t permanent? It can change? Next thing you’re going to tell me is that it changes in a visually appealing manner while simultaneously processing information about the type of foods that patrons are ordering in order to encourage the purchase of more of those foods based on a plurality of predetermined criteria. I mean, you’re kidding right? But surely it’s not .. I mean they weren’t that incredibly advanced back then … were they? Could they even conceive of it? I can’t believe what you’re tellng me. The information is displayed on a plane. My goodness, we should name a new month after the lead inventor.I am very curious about statements made under oath or with a duty of candor by the prosecutors of the application and the attorneys who have apparently sued people with Activision’s patents. Were they all born in Texas in 1987 and never left the ranch until college? Or is the system of patenting and asserting computer-implemented j*nk simply so incredibly broken from top to bottom that these ridiculous blanket threats are just a fact of life “we all have to get used to”? Because “progress”. Or something.

    1. Speaking of computer-implemented j*nk patents, check out this incredible j*nk filed by Quallcom:http://www.freepatentsonline.c…A method comprising: obtaining motion data from one or more motion-detecting devices; and filtering the motion data to obtain present motion states for respective time intervals based on the motion data, the present motion states comprising one or more pedestrian motion states and one or more vehicular motion states, the one or more pedestrian motion states comprising a walk state, and the one or more vehicular motion states comprising a vehicular stop state; wherein, during the filtering, transitions from the one or more pedestrian motion states to the one or more vehicular motion states are restricted to transitions from the walk state to the vehicular stop state and transitions from the one or more vehicular motion states to the one or more pedestrian motion states are restricted to transitions from the vehicular stop state to the walk state.”That’s right: Leonard Grokop and Bhuwan Dinga believe that they invented the concept of using a POWERFUL COMPUTER BRAIN to determine whether you are walking or in a car! Try to believe it, folks. Duty of candor, you say? Meaningless, apparently. The fact that an attorney or agent would even file this with the USPTO is all the evidence you need to understand that the system is a farce.Hat tip to the Steve Brachman, a “free lance journalist” who unwittingly (?) advertises this j*nk on a regular basis on behalf of a well-known patent apologist blog. Keep up the great work, Steve!

        1. My point is that there is no bar for competency or candor when it comes to the prosecution of patents in the computer-implemented arts. It’s just bottom feeding, by the least competent and the most greedy grifters and skimmers out there. Are the people who prosecute these cases even lawyers in most cases or have people finally figured out that all you need is an agent who barely managed to graduate from Video Game U?

          1. So, you trot out some claims that admittedly should not have been issued. And, you contend that this supports the proposition that all prosecutors in the electrical arts are bottom feeders with no ethics? Seems to me to be more than a bit of a stretch. I don’t have the time, but I am sure that there are plenty of patents that are just as junky in the chemical and mechanical arts. I know there are in the mechanical arts.

            1. the proposition that all prosecutors in the electrical arts are bottom feeders with no ethics?I never said that. Those are your words. Your arguing with a strawman. Look up the definition of “strawman” and see for yourself. It would be a good idea to check your comments before posting with that definition in mind. Otherwise you’re just wasting time.

  5. ” If … at some point during the investigation evidence supports a claim of bad faith, the Attorney General is free to revisit this preliminary injunction with the court.”"So then, kind of like right now? When the evidence supposedly (according to the preliminary investigation) shows that they have no intention of, and no ability to, file a lawlsuit against even a minority of the people they sent letters to? It’ll be interesting to see what the state AG does here.

  6. Apparently, in this court’s Merica, the authorities can’t tell harassers who are allegedly engaging in deceptive practices to stop harassing people until they’ve completed an entire investigation into the depths of the harasser’s wrong doings so long as the harassment is through speech. Good grief.

    1. “in this court’s Merica”That’s the wonderful thing (and the bittersweet thing at the same time) about rights in this Merica.Due process, and even (especially) First Amendment rights mean that notions of PC can (and in a healthy adversarial setting should) fail.But that appears to be something not easily put into practice on an objectively consistent basis, eh?Of course, this blog is the personal property of the moderator and true First Amendment rights do not apply – no matter how noble that notion may be.Personal property… I wonder if those wanting full publicity of all personal property are the same that got upset with this Merica’s NSA activities…

      1. notions of PC”Notions of PC”? What are you talking about?this blog is the personal property of the moderator and true First Amendment rights do not applyThey apply to the moderator, who is free to express his/her views in any way that he/she chooses. But why are you bringing this up?those wanting full publicity of all personal propertyWho are you referring to? Seems like you’re just attacking a strawman, unless you have someone specific in mind. Who is this person that “wants full publicity of all personal property” and why are you bringing that person into this discussion?

      2. those wanting full publicity of all personal propertyWho are “those” people? I’m not aware of any such person, much less numerous persons.

          1. Who are the peole that want “full publicity of all personal property”? Why won’t you answer the question? You brought these people up, for some reason. Name them. Name one. What’s the matter, Trollboy?

          2. I’m not being “obtuse”. I’m asking you a question about a claim that you made about “people who want full publicity of all personal property.” Who are those people? Name one.

  7. “is akin to a prior restraint”True, but not a prior restraint. In fact, more like telling a potential criminal to cool it with the potentially criminal activities. Indeed, exactly like that. “The court finds Activision is likely to win on the merits as there is no claim or evidence to date of bad faith. Further, as there is no claim of bad faith, federal law governing these patents, including sending initial letters to businesses believed to violate a patent owned by Activision, is preempted by the federal government. Also, Activision has a First Amendment right to associate with counsel of its choosing without interference from the state of Nebraska. In addition, the cease and desist order operates in this case as a prior restraint on Activision’s speech and association rights. For these reasons, the court finds Activision is likely to win on the merits. “I have little doubt that they would as well. The government so rarely does anything to, you know, enforce the law to protect businesses in this country from harassment. Wouldn’t want anything like the enforcement of the law to happen!

    1. In fact, more like telling a potential criminal to cool it with the potentially criminal activities.I suspect you are unfamiliar with the concepts of due process and presumption of innocence. Activision is presumed innocent of any wrongdoings. Activisionalso has a right to due process. The State of Nebraska cannot simply state that Activision is guilty and prevent them from doing something that Federal Law explicitly allows them to do.Activision cannot get an injunction against an alleged infringers without going to court and allow the alleged infringers their due process. Similarly, the State of Nebraska cannot enjoin Activision.The government so rarely does anything to, you know, enforce the law to protect businesses in this country from harassment.Exactly what Nebraska law are you talking about?

      1. “I suspect you are unfamiliar with the concepts of due process and presumption of innocence.”No I’m actually very familiar with them. And I’m also very familiar with the policing functions that go on routinely in this country to the betterment thereof. Including, but not limited to, telling potential criminals to cool it.

        1. No I’m actually very familiar with them.Doubtful. Very doubtful.telling potential criminals to cool itThe state ordering a law firm not to do something that is expressly allowed for by Federal Law is not telling a potential criminal to “cool it.”

          1. “The state ordering a law firm not to do something that is expressly allowed for”I didn’t realize that federal law “expressly allowed for” unfair and deceptive practices. Because if it does, please to be showing us all the section where it does so.

            1. What is unfair and deceptive about suing somebody for patent infringement or attempting to license the patent?Oh wait, you are ignoring the presumption of innocence and presuming the existence of the “unfair and deceptive practices” without due process, which leads us back to my original comment about your unfamiliarity with the same.I see some things don’t change.

            2. “What is unfair and deceptive about suing somebody for patent infringement or attempting to license the patent?”Nobody said that there was anything unfair or deceptive about either of those. What is deceptive is implying that you’ll sue someone by threatening them with such and having no intention of doing so. Or at least that’s what a state AG says and it makes sense to me. “presuming the existence of the “unfair and deceptive practices” without due process”Um no, I’m presuming nothing other than a state AG having found that he finds the abovementioned behavior unfair or deceptive and is thus going to investigate them. And in the mean time he suggests that they cool it with their potentially illegal behavior. That’s all I’m “presuming”. What is on the record.

            3. What is deceptive is implying that you’ll sue someone by threatening them with such and having no intention of doing so. Or at least that’s what a state AG says and it makes sense to me.No intention of doing so? I doubt it. If I believed somebody had no intention of suing me (for whatever reason), I would NEVER give in to their demands. You pay when you do have a reasonable apprehension that they will sue.And in the mean time he suggests that they cool it with their potentially illegal behaviorHe wasn’t “suggesting” anything. That is what is on the record. He issued a cease and desist letter. If you are going to argue, at least try to get your facts straight.The court finds Activision is likely to win on the merits as there is no claim or evidence to date of bad faith. Further, as there is no claim of bad faith, federal law governing these patents, including sending initial letters to businesses believed to violate a patent owned by Activision, is preempted by the federal governmentI suggest you re-read this passage a couple of times before your next response.

            4. Careful there, Patent_Guru, asking people to get their facts straight (especially in the instance here in which on the first thread related to this subject I had already corrected 6 on these very same issues) may not rise to the ‘norm’ of posts that contribute to conversations.You know, because the CRP-run away-CRP again style does meet that ‘norm.’/eye roll

            5. “If I believed somebody had no intention of suing me (for whatever reason), I would NEVER give in to their demands”Exactly. That’s the part where the deception comes in. The letter deceives the receiver into believing that they do intend to sue. There is of course evidence that they do not intend to sue, or are even capable of suing, even a minority of the threatened folks. “You pay when you do have a reasonable apprehension that they will sue.”Exactly, therein lies the problem with the deception having been perpetrated. “He issued a cease and desist letter.”He demanded they stop. That’s just how the authorities suggest people to cool it with their potentially illegal activities all official like. “Further, as there is no claim of bad faith,”Bad faith isn’t really the same thing as deception.

            6. “Bad faith isn’t really the same thing as deception”6,Read BOTH of the cases, andPut.The.Shovel.Down.

            7. The links are already provided in Prof. Crouch’s posts.Please tell me you read the decisions before you started posting.

            8. I read the decisions. I thought you meant you had info on the whole of each “case”.

            9. The letter deceives the receiver into believing that they do intend to sue. There is of course evidence that they do not intend to sue, or are even capable of suing, even a minority of the threatened folks.That is not what the Court found. Then again, you appear to be working with a different set of facts than most everybody else.He demanded they stop. That’s just how the authorities suggest people to cool it with their potentially illegal activities all official like.I don’t think the term “suggests” means what you think it means.BTW — it is painfully obvious you are not an attorney. As a matter of course, nobody is going to give you money (for unlawfully using your property) just for the asking. Some people need cease and desist letters. Many need to be sued. It isn’t deception to take legal actions to protect your property.You may be right that they cannot sue everybody. However, it is in EVERYBODY’S best interest for them not to sue everybody.

            10. “That is not what the Court found.”Yeah, the court made no “findings” because in their Merica the demand was “similar to” prior restraint (even though it wasn’t actually prior restraint). Had the court bothered itself to make some findings then we wouldn’t be having this conversation and attorneys wouldn’t get away with potentially breakin’ on the lawl quite as easily. “Then again, you appear to be working with a different set of facts than most everybody else.”Right, I’m operating with the set of facts presented by the AG and which are uncontested by the firm. “BTW — it is painfully obvious you are not an attorney. “Of course not. In my world attorneys or law firms would be no different than the average joe, and the court would “make findings” and then the case wouldn’t turn out quite so peachy for the person the AG was coming down so hard on.

            11. And yes, I agree with you that most times people will not give you money just for the asking and you need to send a cease and desist or sue. So does the AG. What me, and the AG of Nebraska contend is that you shouldn’t be able to deceive people in those cease and desist letters. “It isn’t deception to take legal actions to protect your property.”But it is deception to make it appear you’re going to take legal actions to protect your property and in reality have no intention or capability to do so.

            12. “However, it is in EVERYBODY’S best interest for them not to sue everybody.”It would also be even more in everybody’s best interest for them to not be able to deceive people into believing that they were going to sue everyone. In fact, we even have laws to further that best interest. Though apparently attempting to enforce them on the state government side is psuedo prior restraint and so the courts won’t allow such enforcement.

            13. It would also be even more in everybody’s best interest for them to not be able to deceive people into believing that they were going to sue everyone.Your failure to appreciate litigation strategy again rears it head. The ultimate goal (of the inventors) is to get paid for their technology (this is not a debate on the value of that technology). In the real world, you don’t get paid merely for the asking. As such, you need to send cease and desist letters to get paid. Sometimes that is not enough and you have to sue to get paid. However, in most instances, you don’t want to sue because lawsuits are expensive and time consuming. The fact that you don’t want to sue does constitute evidence of a deceptive practice on part of the patent owners.BTW — bluffing is a normal and accepted (and expected) business practice during negotiations.

            14. bluffing is a normal and accepted (and expected) business practice during negotiations.By bluffing, you mean “lying”, of course. Funny thing: I engage in business negotiations all the time but I can’t recall “bluffing” any of my partners. I guess that’s why I’m not as rich as these brilliant attorneys from Texas. In the real world, you don’t get paid merely for the asking.Actually I get paid “merely for asking” on a routine basis, provided that I’m actually owed money.This is not to dismiss the point your making about “litigation strategies” but rather to remind everyone that litigation, like war, represents a failure to find a reasonable compromise. Our legal system (and particularly the patent legal system) is presently set up to reward the greediest beneficiaries of incompetence flowing from an overwhelmed, undertrained, understaffed and conflicted government agency. $1000 or $2000 dollars to license an incredible piece of junk is ridiculous. Ten cents would be more appropriate but still undeserved.

            15. Funny thing: I engage in business negotiations all the time but I can’t recall “bluffing” any of my partnersThen perhaps you aren’t a good negotiator. If you are a great attorney (and think you are underpaid), make hints that you are thinking about leaving the firm (even though you aren’t). That is “bluffing.” It happens all the time.Actually I get paid “merely for asking” on a routine basis, provided that I’m actually owed money.Having a pre-existing agreement helps, to which I am sure you are referring. However, when somebody takes your IP, there are very rarely preexisting agreements to rely upon.

            16. “but I can’t recall “bluffing” any of my partners.”Why would you bluff your partners? Especially when in this conversation the bluffing is done to your opponent.If you don’t like the price being asked, don’t pay. If the patent is valid you will have to face the consequences. If the patent is not valid, then you have the designated forum to proof your case. If you don’t like either of those, then you STILL have choices of not using the patented item or (gasp) inventing something else.

            17. If I believed somebody had no intention of suing me (for whatever reason), I would NEVER give in to their demands. The attorney general wasn’t being threatened with a lawsuit. It was other people who were being threatened. At the very least, his actions have highlighted the activities of Farney Daniels, a bunch of bottom-feeding patent trollers from Texas, as well as the j*nk patent being asserted by Activision.The AG was certainly pushing the envelope with the “cease and desist” order but I think he made his point. It’s very difficult to see how Farney Daniels can spin the episode into a “victory”. Their money-grubbing scheme just got a bit more expensive for them.I’m confident that attorney generals around the country will keep throwing cold water on these pigs.

            18. I’m confident that attorney generals around the country will keep throwing cold water on these pigs.In the face of the Court’s decision, do you really think many AGs are going to waste their time on this? Do you think any contingent fee lawyers are going to get nervous about no teeth letters from AGs with little power?A hungry pig is going to eat no matter the weather.

            19. In the face of the Court’s decision, do you really think many AGs are going to waste their time on this?If by “this” you mean the exact response pursued by the Nebraska AG, probably not. Although it doesn’t take much time or money for an AG to copy that letter and send it to the patent trollers.Do you think any contingent fee lawyers are going to get nervous about no teeth letters from AGs with little power?Again, it wouldn’t be terribly difficult to put more teeth in those letters. The point is to continue to put roadblocks in the paths of patent trolls and to continue to alert/remind the public of what is going on with our broken patent system. To the extent that the brokenness of the system becomes more widely acknowledged, the ability of the patent trolls to profit from that brokennees at the expense of the public will definitely be impacted.A hungry pig is going to eat no matter the weather.No doubt. And it’s not my particular concern to monitor every such animal, all the time, in every legal or social context. I just do what I can to make sure they stick to acorns and grubs rather than people who are simply trying to run a business without being harassed by low-life Texas attorneys.

            20. Again, it wouldn’t be terribly difficult to put more teeth in those letters.How so?continue to alert/remind the public of what is going on with our broken patent systemI believe you vastly overestimate the public’s interest in patent trolls. With few exceptions, inventors get far more love from the public than infringers. Also, many NPEs are the original inventors, and any attempt to explain the nuances will only bore the public.Also, you seem to denigrate the quality of many patents. From my experience, the “public” sets a very low bar as to what they think is patentable. As such, I think don’t think your railing on the “quality” of the patents is going to get much traction with the public.Ultimately, a solution (if any) for trolls (or any other perceived failure with the patent system) has to come from Congress, which certainly has its fingers on the pulse of the public. While many businesses are negatively impacted by patents, there are also a great many of businesses that are benefited by patents. As such, I doubt Congress is going to get a consistent message (one way or the other) from the business community about patents. Additionally, the public largely doesn’t care about this battle, and if they do, they’ll more than like come down on the side of inventors rather than infringers.

            21. He rails on the ‘quality’ of patents, but if someone rails on the ‘quality’ of his posts, he goes all “Wah Wah Wah,” denies that legal differences matter, and then disappears into accusations and the Vinnie Barbarino “Huh? What?” response mode.The epitome of some ‘norm’ of conversation there – just not sure which norm, or whose level of conversation.

  8. “Patent Law Federalism (Part II): Protecting the Free Speech Interest of Patent Owners to Conduct an Out-of-Court Patent Enforcement Campaign”HAHAHAHAHAAHHAAHAHA, no, for real, HAHAHAHAAHAHAHAHAHAHA.

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