04.18.16
Gemini version available ♊︎Michael Garofalo’s Patent Lawyers Austin Hansley Are Trying to Twist § 101 in Favour of Software Patents Rather Than the Opposite
Taking pride in the state which openly brags about being trolls-friendly
Summary: Michael Garofalo, who is attacking small companies using software patents that are likely worthless once actually subjected to expensive scrutiny (at the courts), is being defended by a firm which doesn’t seem to grasp the difference between the USPTO’s lenience and courts’ adherence to the Supreme Court’s decision on Alice
Austin Hansley, which is based near the capital of patent trolls, isn’t the sharpest pencil in the toolbox. We recently wrote about the Garfum case, where the plaintiff essentially lost after the EFF had stepped in, making ‘protection money’ harder to collect without a legal challenge.
The patent in question is a software patent — one that any court would likely invalidate because the USPTO isn’t doing its job (finding prior art, considering triviality and so on). But as long as the defendant (victim to be sued) is poor enough Michael Garofalo (of Garfum) probably hopes that money will be shelled out to avert legal expenses.
A New Jersey man named Michael Garofalo had a patent he claimed covered online contests, and used it to demand money from other small businesses. But when the Electronic Frontier Foundation came to the defense of a photographer targeted by Garofalo last year, Garofalo quickly dropped his case. Last month, he and his lawyers were ordered to pay $29,000 in legal fees.
Now Garofalo, who owns the website Garfum.com, is asking for the fee smackdown to be reconsidered. His reasoning: since the US Patent and Trademark Office recently agreed to grant him another patent, nearly identical to the first, his case couldn’t possibly be considered “exceptional.”
“This new evidence shows that this case does not lack substantive strength,” writes Garfum.com’s lawyers, from the Texas-based Austin Hansley law firm. “Simply put, how could Plaintiff’s position lack substantive strength when the USPTO performed the same § 101 analysis as this Court and found nearly identical claims to recite patentable subject matter?”
But actually, contrary to what these aggressive lawyers claim, § 101 analysis at the court is a very different matter (unlike the 'analysis' at the USPTO), so both patents are likely to be bogus and invalid, once subjected to proper scrutiny by agents that don’t profit from granting rather than rejecting. One must begin to question whether Austin Hansley even groks § 101 at all. █
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