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02.09.18

The EFF, in Tackling Software Patent Trolls, Turns to Motivational Health Messaging; Craig Daniels Spills the Beans on Packet Intelligence

Posted in EFF, Patents at 5:26 pm by Dr. Roy Schestowitz

Even without the founder, who died a few days ago, the EFF carries on with his battles

John Barlow

Summary: Even after the unfortunate death of John Barlow the EFF continues to expose and fight against patent trolls, whose victims would otherwise remain unnamed and their stories untold

THE USPTO granted plenty of terrible patents over the years. Many of these patents landed on the laps of patent trolls and Motivational Health Messaging is one such patent troll. We wrote about it before. Basically, patent trolls are engaging in blackmail using (typically) bogus patents, so they pick on relatively small companies that have a greater incentive to settle than to fight in court, potentially invaliding the patents. The EFF has one new story about this troll:

Trying to succeed as a startup is hard enough. Getting a frivolous patent infringement demand letter in the mail can make it a whole lot harder. The experience of San Francisco-based Motiv is the latest example of how patent trolls impose painful costs on small startups and stifle innovation.

Motiv is a startup of fewer than 50 employees competing in the wearable technology space. Founded in 2013, the company creates fitness trackers, housed in a ring worn on your finger.

In January, Motiv received a letter alleging infringement of U.S. Patent No. 9,069,648 (“the ’648 Patent”). The letter gave Motiv two options: pay $35,000 to license the ’648 Patent, or face the potential of costly litigation.

The ’648 Patent, owned by Motivational Health Messaging LLC (“MHM”), is titled “Systems and methods for delivering activity based suggestive (ABS) messages.” The patent describes sending “motivational messages,” based “on the current or anticipated activity of the user,” to a “personal electronic device.” It provides examples such as sending the message “don’t give up” when the user is running up a hill, or messages like “do not fear” and “God is with you” when a “user enters a dangerous neighborhood.” Simply put, the patent claims to have invented using a computer to send tailored messages based on activity or location.

To a certain degree, there’s a massive racket between patent lawyers (or law firms) and patent trolls because they create ‘business’ for each other. It’s hardly surprising that these law firms and trolls habitually attack the EFF for its work in this domain.

There’s another new troll story making the rounds right now. Craig Daniels explained how Sandvine got targeted by a patent troll called Packet Intelligence LLC. We wrote about it a few times before. Here’s how the story began:

The shot across the bow, the splash in the water that signalled an adversary had appeared on the horizon and was spoiling for a fight, came in February, 2016.

“All of a sudden my phone started ringing,” recalls Dave Caputo, the former CEO of network optimization company Sandvine.

“And it was a bunch of law firms, many of them based in Dallas [saying] that, ‘We would love to represent you in your patent lawsuit.’

“I had no idea what the calls were about and thought, well, something must have happened.”

What had happened was Civil Docket No. 2:16-CV-147, filed in the United States District Court for the Eastern District of Texas, Marshall Division, by a three-person company called Packet Intelligence LLC.

Sandvine had been targeted in lawsuit by a patent troll. And those phone calls, which began on Feb. 17, 2016, would herald the beginning of a 21-month legal odyssey for Caputo and his senior executives as they worked to stake a claim to their company’s innocence and avoid paying a US$13.8-million demand for damages, plus ongoing royalties on future sales.

It was an odyssey that would eventually swallow up to US$2 million of Sandvine money in legal fees and additionally emerge as a cautionary tale for otherwise unsuspecting technology companies in Waterloo Region.

These sorts of stories are familiar; it happens many times every single day in the US, causing a lot of harm to companies which actually produce something. Well, hopefully these trolls will die soon. US-based patent trolls are, in general, a dying breed.

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