Wednesday, July 29, 2009

Patent reformer morphs into patent troll?

Bedrock Computer Technologies (owned by Dave Garrod) has sued Google, Yahoo, Amazon and others in ED Texas over US Patent 5,893,120.

In discussing Dave Garrod's actions in initiating a lawsuit in ED Texas, Ryan Paul wrote:

Another characteristic that makes this case unusual is the person behind it. Bedrock Computer Technologies is owned by David Garrod, a former Goodwin Procter lawyer who is an active contributor to patent reform efforts. Garrod is leading an initiative against false patent markings in collaboration with PubPat, a nonprofit organization that was founded in 2003 to fight against abuses of the patent system.


IP reporter Joe Mullin tracked down PubPat founder Dan Ravicher and asked if he was aware of Garrod's outside activities. Ravicher has a pragmatic view of the issue and says that Garrod's commitment to fighting against false marking makes him a valuable partner for PubPat despite his outside trolling work.

"Without Dave's assistance we couldn't do this campaign, which I'm convinced is a public good," Ravicher told Mullin. "We disagree about software patents. Dave's going to do that other stuff, with or without the false marking campaign."

Ryan Paul seemed to be confused about the strategic role of naming defendant CityWare:

Bedrock Computer Technologies, the company that filed the patent suit, likely named CityWare in the suit solely to increase the chances of having the case heard in that region.

Ryan, ED Texas likes all patent suits. Say VW and ask the Federal Circuit. But the CAFC's ruling in TS Tech has changed that game a bit.

Of PubPat, Ravicher led the ill-fated re-exam expedition against the stem cell patents of WARF using non-enabled references and conclusionary declarations, and was smoked by the USPTO. PubPat's glow was already tarnished long before this expose on Garrod.

**Going to the bottom of Ryan Paul's post, one sees that this came from TechDirt, which in turned relied on Joe Mullin.
This would seem to be another example of the TechDirt/Mullin "connection." [See previous IPBiz post:
Joe Mullin on copying .
The TechDirt post is If You're An East Texas Company, Are You Now More Prone To Patent Infringement Lawsuits? , which includes the text:

Mullin speculates reasonably that the two companies may have been added as a strategy to fight off any attempt to change the venue outside of East Texas.

The argument of TechDirt in the captioned post seems to run: Companies WITHIN ED Texas are NOW more likely to be sued in multi-defendant cases BECAUSE their presence as named defendants would limit the likelihood that the case would be transferred out of ED Texas. Plaintiffs will seek out ED Texas companies as defendants to increase the likelihood of staying in ED Texas.

As a first matter, under current law, venue must be proper for ALL defendants in multi-defendant law suit. As has been discussed in recent matters on patent reform: The amendment to Sec. 1400(b)(1) also does not affect the rule that, in case of multiple defendants, venue must be proper for all of them. Thus, unless the principal place of business or state of incorporation are common, paragraph (1) may not be used as a basis for venue. See
House Report 110-314 - PATENT REFORM ACT OF 2007

After the Federal Circuit's ruling in TS Tech, companies marginally connected to ED Texas have a good chance to change venue. See
In re TS Tech to shut down patent biz in ED Texas?
. Does adding, as a defendant a company "really" connected to ED Texas, change the calculus? Likely not.

One place to look is the Tamburo case, citing to
Wild v. Subscription Plus, Inc., 292 F.3d 529 (7th Cir. 2002):

Tamburo’s reading of Wild, however, is highly and self-
servingly selective, for the appellate court goes on to say:

But that leaves the question whether a defendant in a multidefendant suit
who cannot be served can be forced to defend in the transferee district or,
as most cases hold, must be severed from the rest of the suit and the suit
against him either dismissed or … transferred back to the district in which
the suit was first filed or to a district in which service upon him is possible
…. The argument for the latter course … is that the transfer statutes do
not purport to alter the rules governing personal jurisdiction; and of course
the outer bounds of those rules are set by the Constitution.

That is, including a defendant who can ONLY be served in the initial district
(in our discussion, ED Texas) does NOT preclude transfer as to the OTHER
defendants. Transfer CAN occur, with severance or dismissal as to the ED Texas party.

As with the matter of copying, TechDirt and Joe Mullin kick up a lot of
dust, without much substance. Further, the language in Tamburo:
highly and self-servingly selective does seem to fit
the approach of TechDirt and Mullin to patent law, wherein the
accurate "big picture" is missed.

***See also

Mullin's "Prior Art" blog tries to smoke Ebert


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