Are you a Patent Troll, or merely Rhetorical Hyperbole

Patent

by Dennis Crouch

Automated Transactions, LLC v. Am. Bankers Assn., 2018-0198, 2019 WL 3849518 (N.H. Aug. 16, 2019)

Automated Transactions holds several patents on automated teller machines (ATMs) and was seeking licensing revenue (reportedly receiving more than $3 million in a single year).  Potential licensees started identifying the patentee a “patent troll” and the licensing effort “extortive.” Automated (along with its founder Barcelou) sued in NH state court alleging defamation and violation of the NH Consumer Protection Act (CPA).

The district court dismissed the case — holding that the patent-troll statements by the defendants were non-defamatory “expressions of opinion” based upon known underlying facts and that the “extortion” statements were rhetorical hyperbole.

On appeal, the NH Supreme Court has now affirmed the dismissal — basically finding that the term “patent troll” has no objective meaning and therefore is not itself a statement of defamatory fact.  A statement of opinion can be defamatory – if it implies the existence of undisclosed defamatory facts.  Here, however, the speakers described the underlying basis for their opinions (primarily aggressive assertion of patent rights with no plans for marketing any actual product).  The Supreme Court also agreed that the “extortive” claim, was non-actionable hyperbole.

[Read the Decision Here]

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32 thoughts on “Are you a Patent Troll, or merely Rhetorical Hyperbole”

  1. 7

    Meanwhile …

    link to splinternews.com

    Splinter Prevails in $100 Million Defamation Suit Brought by Ex-Trump Staffer Jason Miller

    It can’t be said often enough but anybody associated with Perznit Spraytan and anybody who supports him in any way is a total stinking pile of d0gsh–t who should be shunned and shamed forever.

  2. 6

    Um, much as I love the rants, if we could return to Automated Transactions for a moment:

    Extortion is a felony in all states, and maybe even in the Republic of Texas. Did the NH courts parse “extortive” as other than an assertion that AT was engaged in felonious activity? I can see “patent troll” invective as being [viewed by the court as] hyperbole but when there are available other, less defamatory alternatives to “extortive” — e.g. “coercive”, “gouging”, “overly-aggressive” — it’s hard to defend the use in commerce of a term that strongly implies criminal conduct.

    Is this a case of the NH judiciary joining in now-fashionable troll-bashing? Or perhaps the NH CPA wasn’t the best basis for AT’s suit? And before someone says it: Yes, I should read the opinions themselves. 🙂

      1. 6.1.1

        Translation: The Ends justify the Means, and Malcolm’s animus against patent holders does not stop anywhere (hence the immense pressure of his cognitive dissonance causing the massive blight that runs rampant here on this blog).

    2. 6.2

      it’s hard to defend the use in commerce of a term that strongly implies criminal conduct

      ROTFLMAO

      This is offered in defense of people who have threatened how many people with how many invalid patents?

      Get a life, you disgusting c-r-e-e-p.

      1. 6.2.1

        … because Malcom FEELS that the presumption of validity need not apply to those things that he does not like…

      2. 6.2.2

        Well, let’s see:

        I write over my own name, “MM” anonymously. I pose questions of objective fact, while MM makes declarative statements of (in this case ironically) hyperbole. I use measured language, where MM’s is intemperate and ad hominem. I tread lightly with my own opinions (which in fact run strongly against NPEs), while MM without foundation attributes his own views, or their opposite, to others.

        Which of us is engaged in constructive dialog? And which in vitriolic polemics?

        Given the well-earned respect accorded this forum, I hadn’t expected to be embarassed to take part in it. My sympathies to all PO readers everywhere.

        1. 6.2.2.1

          No need for apologies, Andreas, as you have come face to face with this sites single largest source of blight (documented to have been ongoing for more than 14 years now).

          That being said, I will disagree with some of your points, notably two:
          1) posting in “my own name,” and
          2) words that are a little wild.

          As to 1) the “I use my own name” provides error in both directions: it presumes that those who post in pseudonym or anonymous are to be taken with less care, AND that those posting in their real name somehow “earn points” just because they are using their real name.

          Can those posting in pseudonym (or anonymously) BE more careless? Absolutely. But that does NOT carry any sense of universal causality that your comment implies. This country has a LONG and venerable tradition of anonymous and pseudonymous writing (for example, Poor Richard, Federalist Papers, etc).

          As to 2), there is a CLEAR difference between the almost always EMPTY ad hominem of Malcolm and the use of sharp or wild words. Here too, there is an affliction of going too far in the opposite direction (being painstakingly polite, but EMPTY of critical thinking). In this category are often Greg (real name) DeLassus and (pseudonym) MaxDrei. The bottom line on this point thuough is best summed up by John Maynard Keynes: “Words ought to be a little wild–for they are the assault of thoughts upon the unthinking.”

          And there is PLENTY of unthinking comments that beg to be countered. Which also brings up the point that some would suggest that no engagement be made at all (one of Greg’s views). There is a real problem in that regard, as only too often there are others who are unthinking that see the unrebutted nonsense and think that since no one rebutted the nonsense, it must be true, and then snowball that nonsense into even greater nonsense.

          1. 6.2.2.1.1

            Thanks, anon, your comments and encouragement much appreciated. Agree fully that great works can be delivered an/pseudonymously.
            I’ll have to take the JMK quote under advisement; it has potential, but I’m not sure thoughts can effectively be conveyed to the unthinking, regardless of how presented.
            I do look forward to more incisive analysis and spirited, respectful dialog.

            1. 6.2.2.1.1.1

              no prob – the thoughts are delivered LESS to the specific unthinking person (after all, it has been documented that Malcolm’s blight goes back fourteen plus years).

              Rather, the thoughts are delivered MORE so that the record shows that the blight is simply not accepted. Unfortunately, there are simply plenty of people out there that “read it on Patently-O” and without critical thinking actually think that the views “must be legitimate” since some (professed) attorney stated so.

              You will definitely get incisive analysis from me, and it may be more or less spirited (as I take that term to be generated more from disagreements, and I have a feeling you and I would not disagree all that much), but as for “respectful,” well, I will be as respectful as I deem necessary, but I do LOATHE the mere presentation of “politeness” when such is merely done for its own effect. I very much prefer the “wild words.”

              All this being said – please do not let the likes of Malcolm stop you from posting. The site certainly could use more of your “questions of objective fact,” even as you post your opinions (lightly treaded or otherwise).

        2. 6.2.2.2

          Get over yourself, Andreas, and stop fellating patent tr0lls.

          I hadn’t expected to be embarrassed

          LOL Tough luck, you mewling little manbaby. Maybe think harder before you show up here to defend the behavior of the worst people in the patent system.

          2. 6.2.2.2.2

            Tell me again Malcolm

            – who exactly has had more posts expunged for being inappropriate than anyone else?

            – who exactly has had more posts expunged for being inappropriate than everyone else combined?

            We BOTH know the answers, eh?

  3. 5

    Welcome to Season 12, Episode 42, of Patent Attorneys Behaving Badly!

    |
    V

    (looked like a down arrow on my cell phone)

  4. 4

    The decision includes more specific assertions as to why the shoe fits:
    “As to specific statements regarding ATL, one slide identifies “Automated
    Transactions, LLC” as a “Well Known Troll[].” This slide states that ATL
    “[t]argets all financial institutions within a given area – even ones that don’t
    own or operate ATMs.” It also states that the “Federal Circuit has invalidated 7
    of [ATL’s] 13 patents,” and that ATL is “[s]uing many Vermont [credit unions],
    as well as [credit unions] or community banks in Maine, New York, New
    Hampshire, and Georgia.”

  5. 3

    In related great and welcome news, super s-c-u-m-b-a-g and super entitled thin-skinned glibertarian David Koch has gone to his grave. HOORAY! Hopefully the miserable cretin in the White House follows him soon, but preferably in a more excruciating, public and embarrassing manner. Like slipping off the stairway out of Airforce 1 and splitting his melon open on the tarmac and maybe soiling his pants while he convulses in front of everybody. LOL

    1. 3.1

      My only question is, who is our bigger enemy, Jay Powell or Chairman Xi?

      Nothing to see here, folks. Everything’s perfectly normal, no point in discussing.

      Our great American companies are hereby ordered to immediately start looking for an alternative to China

      Just keep moving, folks. No email server management issues here! It’s all good. Definitely no point in highlighting the existence of the people who support this person and this person’s political party. Especially on a blog concerned with commerce-related issues.

    3. 3.3

      “super s-c-u-m-b-a-g and super entitled thin-skinned glibertarian David Koch”

      I’m somewhat surprised to hear you cheering his leaving, as he was on board with nearly all of leftism in these last few years despite his own general views.

      Speaking of deaths / upcoming demises:

      link to msn.com

      “Hopefully the miserable cretin in the White House follows him soon, but preferably in a more excruciating, public and embarrassing manner. Like slipping off the stairway out of Airforce 1 and splitting his melon open on the tarmac and maybe soiling his pants while he convulses in front of everybody. ”

      Cringe. Literally a stereotypical leftist “muh enemy dies embarrassingly” fantasy. Why are you such a walking stereotype MM?

      1. 3.3.1

        Spraytan McNugget is pretty much everybody’s “enemy”, 6chan, except for darkweb blowup doll munchers like you who identify with Dear Leader’s daddy issues.

    1. 2.1

      LOL

      Yes, a patent tr 0ll luvvah like Bildo would definitely try to spin this decision that way.

      Too funny.

      By the way, you know what other entitled rich thin-skinned l0w-life c-r-e-e-p was also famously fond of suing or threatening to sue his (correct) critics for “defamation” all the time?

      1. 2.1.1

        There is no spin from me – I am sure that your “book” will have plenty of very consistent instances of me quoting John Maynard Keynes.

        But why let facts get in the way of your feelings, 0 Trump of this blog?

  7. 1

    Wow: a ultra thin-skinned super entitled patent tr0 ll who loves to lawyer up and litigate!

    Shocking. Nobody could have predicted that combination of traits, particularly in the super awesome “do it on an ATM” art field.

    I wonder what the political affiliations are of the rotten human beings hiding behind this LLC. It would be so irresponsible to speculate …

    1. 1.1

      What the F has political affiliation has to do with this (or ANY) patent law concept?

      Are you that out of control with your feelings?

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