Judge requires patent troll to explain its "Mr Sham" business

Patent trolls are mushrooming all over the world, thriving on the billions that they're able to extract from productive companies with their absurd patents and transparent extortion attempts. One of the only defenses society has against these parasites is the rare, clueful judge. Enter Judge William Alsup, who made history in the Oracle v Google shitshow, when his experience actually writing code let him see through Oracle's bizarre arguments and cut to the heart of the argument.

Now Alsup is back in the saddle, hearing a case involving "Network Protection Sciences," a troll who tried to engineer a hearing in the notorious East Texas courtroom that is the most favorable venue for trolling litigation, by renting out a closet in the area as its "offices" and naming the building's real-estate broker as the company's "director of business development." Alsup saw right through this, and required the trolls to explain, in fine detail, the workings of their "Mr. Sham" operation.

THE COURT: You're on the verge of losing this entire motion, and going to the Federal Circuit, with a lot of money against you. So if you want this to live to fight another day, you ought to listen to me for a moment. The best you can hope for is that the jury's going to decide this; but for the jury to decide the sham nature of this closet in Texas, they're going to have to understand why somebody would want to do this. So an expert is somebody you need to have explain it. This is going to be part of your case.

[COUNSEL]: No, Your Honor, it's not.

THE COURT: Well, then, it will be part of their case.

[COUNSEL]: Why is that relevant to the issue of patent infringement?

THE COURT: If we're going to try ownership here, and all of these issues about whether or not this guy was a sham, or not, the jury's got to understand the background of why it was or was not a sham.

[COUNSEL]: Well, Your Honor --

THE COURT: You're not going to be able to skate by, with -- beat this motion, and then get it somehow excluded at trial. For goodness' sakes.

[COUNSEL]: Well, how is it relevant to the issues that are at trial?

THE COURT: You've got to prove ownership. It's your burden.

[COUNSEL]: And you prove ownership by an assignment; not by -- not by showing --

THE COURT: It may not be valid, Counsel.

[COUNSEL]: But that will be resolved.

THE COURT: No, it's not going to be resolved. You're asking that it be resolved by the jury. I heard you say it a moment ago.

[COUNSEL]: No, Your Honor. I'm sorry.

THE COURT: Well, maybe now you're taking it back. It's on the record. I heard it. So on appeal you can make that point; but this jury is going to hear all of this stuff about the closet. And you're going to have to explain why "Mr. Sham" was signing these documents.

Tiny Closet, a Creative Commons Attribution Share-Alike (2.0) image from skrewtape's photostream)

Notable Replies

  1. I remember a patent lawyer telling me that unlike most crime, there are no morality issues in patent law to grapple with. A more interesting question is does the legal system make people such dbags and how can it be changed to make dbags into nice people?

  2. bwv812 says:

    On the other hand, "patent lawyer" most likely refers to a "patent prosecutor," which is a lawyer whose job is to apply for patents through the USPTO. There's probably not a lot of morality involved in prosecuting patents, other than how fully, comprehensively, or artfully you disclose prior art.

  3. On behalf of trolls everywhere, I am outraged!

  4. Thud. (my reaction to the cable. oy) The things you describe do not surprise me. Oracle and Open Source may both begin with the letter O, but the similarity ends there. I'm no expert on Oracle (far from it), but open source doesn't seem to be consistent with Oracle's DNA.

    Since I wrote that initial comment, I went and read (a good deal of) the legal ruling in the Oracle vs Google case.

    The intro is basically a tutorial on java and programming languages and APIs in general. Amazingly lucid. I'm a technology generalist of the digital imaging, design, tech writing, explanation, web development and code copy-er and paste-er variety, but I stop at seriously writing code from scratch. (in the pick your battles, I gave up there.) This means that I've passing familiarity with code, but some foundational principles that real coders know at the assumption level pass me by completely. For a person with my level of understanding, the Judge's stuff was spot-on brilliant.

    Anyway, skipped the middle part of the ruling (case history of software and copyright), then read the final section for the decision.

    The trial -- and the merits (or lack) thereof get at the difference between copyright and patents. (hi. Patents, again, for this off-topic diversion about Oracle/Google, I'm trying to get back on topic.) Insightful stuff. Patents last for 20 years, copyright protections (now) last for 95 years.

    From p 35 of the finding,

    Based on a single implementation, Oracle would bypass this entire patent scheme and claim ownership over any and all ways to carry out methods for 95 years — without any vetting by the Copyright Office of the type required for patents.

    Put that way, Oracle's complaint is pretty damn brazen.

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