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.