Friday, January 6, 2017

Could a patent attorney (prosecution or litigation) lend pro bono help to Techdirt's Mike Masnick?

This morning I have just become aware of a Hollywood Reporter article on a defamation lawsuit (complaint, PDF) against the company behind and the principal author (Mike Masnick) of the Techdirt website brought by Dr. Shiva Ayyadurai, whom Techdirt has attacked over his claims to have invented email.

I have not communicated with Mike or anyone close to him in years and don't have any intention to do so. The only instance I remember was in 2012 or 2013: a brief exchange on Twitter regarding the monopoly power conferred by standard-essential patents. I don't remember for sure but it's possible that, whether or not my name was mentioned, I got attacked by him over my pro-copyright positions (Oracle v. Google). Also, far be it from me to endorse the way he wrote about this subject in general and Dr. Ayyadurai in particular. If I had taken an interest in the subject, I'd have done it differently.

The plaintiff is seeking damages of "not less than [$15 million]" plus punitive damages on top, a public retraction, and an injunction.

The attorney representing Dr. Ayyadurai, Charles J. Harder, previously obtained a $140 million verdict for Hulk Hogan against Gawker. While Peter Thiel had a hand in that case, I don't see any indication so far that Mr. Thiel has any involvement with the action against Techdirt. I would caution everyone against baseless speculation, and I'm saying so not only because I'm deeply grateful to Mr. Thiel for his support of Donald Trump's campaign and his service on the Trump transition team. He decided to swim against the Silicon Valley tide. By now, even liberals acknowledge that Silicon Valley has started to like Donald Trump's plans.

There must be enormous pressure on Techdirt to settle, which Dr. Ayyadurai would be able to portray as an indication of his claim of email inventorship being legit. Primarily, Techdirt needs help from a defamation lawyer. However, I believe Techdirt's defense would benefit immeasurably from the early involvement of a patent prosecution attorney or patent litigator. The key legal question will be whether or not the freedom of speech covers Mike's accusations, and that means the question of whether the plaintiff actually "invented email" will be at the heart of the case.

Patent law is the law of inventions. Even though the defamation question here will not come down to a patent validity analysis (there is no patent in play, just a copyright registration and earlier documents), I believe patent professionals are in the best position to perform the inventorship-related analysis that is needed for Techdirt to defend itself or, hypothetically speaking, to realize that there's no reasonable alternative to a settlement. Patent attorneys know how to determine whether the prior art fully anticipated something or whether any delta is (non-)obvious (and to compare this to what is nowadays deemed to constitute email). Even courts would likely be receptive to references to certain principles of patent law in this context.

In the ideal scenario for Techdirt, the case for total anticipation would be so strong that the case might be resolved in their favor even without a jury trial. If there was only partial anticipation, it would come down to whether the delta (if any) justified a claim of having invented email or whether it would only have supported a narrower claim such as (whatever may be the case here) having invented a particular feature or having independently come up with something that existed before.

The complaint cites all sorts of credit that was given to Dr. Ayyadurai, who has every reason to be proud of what those people said, but what is needed--and lacking so far--is a solid, professionally-crafted feature-by-feature analysis of the relevant prior art (see this email for a starting point) and the claimed invention. Also, it's a typical patent law question to determine what a person skilled in the art would have considered essential characteristics of "email" at the relevant point(s) in time.

In case any of you would like to help, please contact Techdirt directly. I wanted to help bring the truth about email inventorship to light by making this call and I'll be interested in the outcome of the case, but I won't play any role in it. If Mike made indefensible accusations, he should retract them and accept the consequences, but if other people, such as potentially Ray Tomlinson, deserve credit for having invented email, then the truth should be told in the further proceedings. And that's a question of facts, not of the color of one inventor or the other. Let's focus on the technical facts.

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