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Stupid Patent of the Month

Written by Samuel O'Toole on 01 December 2017

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The Electronic Frontier Foundation (EFF), in an effort to highlight the issue of somewhat “stupid” patents, introduced a blog entitled “Stupid Patent of the Month”. But it’s not all fun and games; the blog’s aim is to represent the idea that reform is needed at the Untitled States Patent Office, Court and in Congress.

With patents ranging from a “scan to email” and “bilateral and multilateral decision making” it does make for an interesting read. However, when US Patent Number, 6,690,400 was featured, things took a down turn.

The patent relates to a claim that uses “virtual cabinets” to graphically represent data storage and organisation and is owned by Australian company Global Equity Management (SA) Pty. Ltd (GEMSA). GESMA was not happy about the feature and wrote to the EFF accusing the organisation of “false and malicious slander”.  A lawsuit was subsequently filed and injunction obtained in a South Australian Court.

The EFF did not agree with the injunction, requiring the EFF to censor itself, so they filed a counter lawsuit in the U.S. District Court for the Northern District of California. The EFF sought a declaration that the blog post was protected speech.

The US Court agreed with EFF and found that the Australian injunction was not enforceable in the US, The Securing the Protection of Our Enduring and Established Constitutional Heritage Act (SPEECH Act) was quoted as it aims to prevent “libel tourism”. Libel tourism is the practice whereby claimants sue a defendant in different countries, such as England. Defamation lawsuits are often brought in England due to the reversal of the burden of proof, this reversal puts the onus on the defendant to prove the truth of the allegedly defamatory statement.

The SPEECH Act aims to counteract the practice of libel tourism as it provides that foreign orders are not enforceable in the US unless they comply with the US’s free speech provisions.

Therefore, the US Court reviewed each of GEMSA’s claims for defamation and held that “[n]one of these claims could give rise to defamation under U.S. and California law,” accordingly “EFF would not have been found liable for defamation under U.S. and California law.”

It is reported that an example of the above is the fact that GESMAS’s complaint was that the EFF had called the patent “stupid” – in the Stupid Patent of the Month blog. GESMAS’s argument was advanced on the basis that “in fact” the patent is not stupid. The US court found that this was a protected opinion and that “that the Australian court lacked jurisdiction over EFF, and that this constitutes a separate and independent reason that EFF would prevail under the SPEECH Act.”

The US court went on to declare that “(1) that the Australian Injunction is repugnant to the United States Constitution and the laws of California and the Unites States; and (2) that the Australian injunction cannot be recognized or enforced in the United States.”

So there we go, the Stupid Patent of the Month blog makes for an interesting read if you are interested in both patents and defamation. 

If you'd like to know more about this article please send an email to Michael Coyle quoting the article title and any questions you might have, alternatively call the office number on 02380 235 979 or send an enquiry through our contact form.

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