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Attorney-Inventor Sues EFF for 'Stupid Patent' Blog Post

By Casey C. Sullivan, Esq. on June 04, 2015 | Last updated on March 21, 2019

The Electronic Frontier Foundation has made a name for itself as a watchdog of online privacy, defender against government surveillance, and strong critic of intellectual property abuses. The nonprofit, self described as "defending civil liberties in the digital world," is no stranger to litigation. It often acts as plaintiff or amici in strategic litigation. But it seems like it may be a defendant, as the group has been sued for the very first time.

A lawyer who was the subject of an EFF "Stupid Patent of the Month" blog post has sued the group, claiming it defamed him as both an attorney and an inventor. EFF's monthly shaming called out the attorney-inventor, Scott Horstemeyer, for not only making stupid patents, but being connected to a notorious patent troll. The post caused Horstemeyer to cry foul -- and defamation.

You Are Violating My Patent on Suing

The subject of the EFF's blog scorn was U.S. Patent No. 9,013,334, invented (or "invented" if you're the EFF) and prosecuted by Horstemeyer. That is a patent for updating delivery information through mobile devices. According to the EFF, the "stupid patent" could lead to infringement claims anytime you text your friend to grab a pack of beer on his way over.

The patent is owned by Eclipse IP LLC, which Ars Technica notes owns only patents connected to Horstemeyer. The EFF describes Eclipse IP as belonging to an "elite group" of "the most litigious patent trolls in the country." Patent trolls broadly interpret questionable patents and threaten individuals and businesses with expensive litigation, often avoidable through a payment to the patent holder.

Eclipse has filed over 100 lawsuits related to its patents. In one instance the blog post highlights, Eclipse sent a letter to a small gym, claiming it infringed on Eclipse's patents by sending emails to customers regarding the status of their orders. Eclipse demanded a $45,000 payment.

Stupid Defamation Lawsuit of the Month?

According to the suit, the EFF blog post, written by staff attorney and "Mark Cuban Chair to Eliminate Stupid Patents" Daniel Nazer, thrice defamed Horstemeyer. First, Horstemeyer contends that Nazer defamed him by implicated that the attorney failed to disclose relevant information during his patent prosecution -- namely that three similar patents had been tossed out in federal court. Horstemeyer also objects to the claims that he hasn't made "any genuine contribution" to technology and was simply hoping his patent prosecution would be rubber stamped.

The EFF says it will vigorously defend against the lawsuit. The organization claims that the post is protected free speech, hyperbole, and opinion. Indeed, it doesn't seem like Horstemeyer and Eclipse LLC have a very strong case. But hey -- that's never stopped a patent troll before.

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