{"id":112351,"date":"2019-08-20T17:15:45","date_gmt":"2019-08-20T21:15:45","guid":{"rendered":"https:\/\/ipwatchdog.com\/?p=112351"},"modified":"2019-08-20T12:47:44","modified_gmt":"2019-08-20T16:47:44","slug":"new-hampshire-supreme-court-affirms-dismissal-patent-troll-defamation-case","status":"publish","type":"post","link":"https:\/\/ipwatchdog.com\/2019\/08\/20\/new-hampshire-supreme-court-affirms-dismissal-patent-troll-defamation-case\/id=112351\/","title":{"rendered":"New Hampshire Supreme Court Affirms Dismissal of Patent Troll Defamation Case"},"content":{"rendered":"

\u201cThe New Hampshire Supreme Court affirmed the dismissal of Automated Transactions\u2019 defamation claims as unactionable because the court found that the defendants\u2019 references to Automated Transactions as a \u2018patent troll\u2019 were statements of opinion, not fact.\u201d<\/p>\n<\/div>\n

\"https:\/\/depositphotos.com\/46003303\/stock-illustration-big-troll.html\"<\/a>On August 16, the Supreme Court of New Hampshire issued an opinion in Automated Transactions, LLC v. American Bankers Association<\/em><\/a> affirming a lower court\u2019s decision to grant a motion to dismiss claims of defamation alleged by an inventor whose legitimate patent licensing business was decimated by a collection of entities and individuals deriding that inventor as a \u201cpatent troll.\u201d The decision is certainly unwelcome news to any inventor concerned by the prospect that large entities could infringe upon their intellectual property and escape any chance of facing justice simply by hurling the \u201cpatent troll\u201d epithet<\/a>.<\/p>\n

The opinion issued by the New Hampshire Supreme Court rehashes elements of Dave Barcelou\u2019s inventor story that we\u2019ve previously covered on this website<\/a>, including Barcelou\u2019s development of an automated transaction machine and his attempts to monetize his patents after a series of companies, including financial institutions, began using web-enabled ATMs that practiced Barcelou\u2019s invention. After building a multi-million licensing operation, a series of entities including the Credit Union National Association (CUNA) and the American Bankers Association (ABA) made claims that Automated Transactions, the entity created by Barcelou to hold the ATM\u2019s intellectual property, was a \u201cwell-known patent troll\u201d engaging in activities meant to \u201cshakedown\u201d banking institutions through licensing demands that cost \u201cnothing more than the price of a postage stamp and the paper the claim is written on.\u201d<\/p>\n

Automated Transactions brought its defamation suit against CUNA and ABA to New Hampshire Superior Court, which granted a motion to dismiss the case last March<\/a> after the judge in the case found that the term \u201cpatent troll\u201d wasn\u2019t necessarily pejorative. The present appeal followed Judge Brian Tucker\u2019s decision to dismiss.<\/p>\n

Patent Troll References Are Statements of Opinion<\/strong><\/h2>\n

The New Hampshire Supreme Court affirmed the dismissal of Automated Transactions\u2019 defamation claims as unactionable because the court found that the defendants\u2019 references to Automated Transactions as a \u201cpatent troll\u201d were statements of opinion, not fact. The appellate court acknowledged that \u201cpatent troll\u201d is a derogatory phrase which has increased in use in recent years but of which \u201ca widely accepted definition\u2026 has yet to be devised.\u201d The term\u2019s \u201cmeaning is sufficiently elusive to permit application to any of an amorphous number of entities.\u201d In reaching this conclusion, the court cited to various cases, including one from the Northern District of California against the Electronic Frontier Foundation<\/a>, where the court determined that EFF\u2019s claim that a patent owner \u201cseems to be a classic patent troll\u201d was cautiously phrased as a statement of opinion, leading the court to dismiss claims of defamatory liability.<\/p>\n

In discussing CUNA\u2019s use of the \u201cpatent troll\u201d term, the appellate court determined that CUNA\u2019s statement that Automated Transactions is a patent troll because its patent-enforcement activity is \u201caggressive\u201d can\u2019t be proven true or false because \u201cwhether given behavior is \u2018aggressive\u2019 cannot be objectively verified.\u2019\u201d Although CUNA defined what a patent troll was, the definition itself didn\u2019t have a precise meaning that was capable of verification.<\/p>\n

It should be noted that CUNA\u2019s entire definition for patent troll included \u201can entity that owns patents and enforces them in an aggressive way with no intention to market the patented invention.\u201d Interestingly, the appellate court\u2019s discussion of the case background acknowledges that Barcelou\u2019s business activities included \u201chir[ing]… an industrial design firm to help refine\u201d his invention, \u201ccreating additional prototypes,\u201d seeking \u201ccapital investments\u201d and undertaking \u201cefforts to commercialize his invention.\u201d Many will likely recognize that these are the very steps an inventor would undertake precisely because he or she has an intention to market a patented invention.<\/p>\n

Court\u2019s Decision Deals \u201cIrreparable Harm\u201d to Self-Made Inventors<\/strong><\/h2>\n

The New Hampshire Supreme Court also found the ABA\u2019s uses of \u201cpatent troll\u201d in two instances of congressional testimony to be nonactionable as expressions of opinion based on disclosed facts. References to Automated Transactions licensing efforts as \u201can effort to extort payments\u201d were merely rhetorical hyperbole, as were statements regarding demands that the licensing demands cost nothing more than postage and paper. \u201cNo reasonable listener, attendant to the statement\u2019s context, would have understood ABA to be asserting that [Automated Transactions\u2019] efforts are, in fact, virtually costless,\u201d the appellate court wrote.<\/p>\n

William Lerner, General Counsel for Automated Transactions, lamented the damaging nature of the New Hampshire Supreme Court\u2019s decision to the prospects for inventors, and the ways it may embolden patent infringers in the future. \u201cI believe the rationale of the New Hampshire Supreme Court does an injustice to the individual inventor\u2014the ‘self-made inventor’ and the \u2018university researcher\u2019 as those terms are used by Justice Clarence Thomas in the eBay v. MercExchange<\/em><\/a> decision,\u201d Lerner said. He added:<\/p>\n

\u201cI believe that this decision further damages the image of the self-made or individual inventor by denying them, as the plaintiffs, the opportunity to have their day in court with a trial. Accordingly, the New Hampshire courts have caused an individual or self-made inventor to suffer irreparable harm. By not focusing on the branding of the plaintiffs as \u2018patent trolls,\u2019 the courts have caused irreparable harm to them and may cause irreparable harm to other legitimate patent holders as well.\u201d<\/p><\/blockquote>\n

 <\/p>\n

Image Source: Deposit Photos
\nVector ID: 46003303
\nCopyright: memoangeles\u00a0<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

On August 16, the Supreme Court of New Hampshire issued an opinion in Automated Transactions, LLC v. American Bankers Association affirming a lower court\u2019s decision to grant a motion to dismiss claims of defamation alleged by an inventor whose legitimate patent licensing business was decimated by a collection of entities and individuals deriding that inventor as a \u201cpatent troll.\u201d The decision is certainly unwelcome news to any inventor concerned by the prospect that large entities could infringe upon their intellectual property and escape any chance of facing justice simply by hurling the \u201cpatent troll\u201d epithet.<\/p>\n","protected":false},"author":11764,"featured_media":112354,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"content-type":"","footnotes":"","_links_to":"","_links_to_target":""},"categories":[117,274,7202,5519,262,228,3,1031,38597,37020,187],"tags":[13606,13605,1199,8054,181,153,38,49,41436,33,107,8742,232,8732,34,172],"yst_prominent_words":[52406,23235,52409,52405,52407,52402,52400,52408,41423,41419,52404,41417,41415,52398,17071,52403,15331,52399,52410,52401],"acf":[],"_links":{"self":[{"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/posts\/112351"}],"collection":[{"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/users\/11764"}],"replies":[{"embeddable":true,"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/comments?post=112351"}],"version-history":[{"count":0,"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/posts\/112351\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/media\/112354"}],"wp:attachment":[{"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/media?parent=112351"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/categories?post=112351"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/tags?post=112351"},{"taxonomy":"yst_prominent_words","embeddable":true,"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/yst_prominent_words?post=112351"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}