There is nothing explicitly illegal about the process of patent trolling. Many patent trolls — shady conglomerates profiting from patent lawsuit settlements — waltz across the bank accounts and legal teams of countless start-ups, tech firms, and industry leaders alike. But Lumen View Technology may have knocked on the wrong door because Kevin O’Connor, CEO of the Santa Barbara–based online comparison network FindTheBest, has decided he’s the one who does the knocking.
A patent troll’s business plan is relatively simple: “Inventors,” usually hidden behind shell corporations, file patents for general technological concepts or applications, and they then actively pursue existing companies tech that violate said patent. On May 30 of this year, Lumen View Technology, LLC, sent a formal complaint to FindTheBest, alleging that its comparison-shopping software violated U.S. Patent No. 8,069,073 and demanding a $50,000 settlement to make amends.
And the story from this point is typically as straightforward: After a quick check with their legal team, most companies passing over a patent troll’s bridge cough up the change, especially as legal fees to even begin to fight the charge can quickly surpass the initial settlement offer.
“The first thing you do is try to figure out: Are we infringing, is there a valid patent, and who is this company?” O’Connor said. “And what we found was … nothing. Their demand letter didn’t tell us what we were doing wrong; it was kinda this Stalinistic thing — ‘We know you’ve done something wrong, but we’re not gonna tell ya’ [what it is].”
So, instead of immediately settling, O’Connor came out swinging, pledging to spend $1 million of his own money (he cofounded the online-advertising behemoth DoubleClick, which sold to Google in 2008 for $3.1 billion) fighting off the troll. Patent 8,069,073’s coinventors, Eileen Shapiro and Steven Mintz, as well as their attorney Damian Wasserbauer, did not respond to requests for comment on the case.
And unlike many companies struck by trolls, O’Connor may have an impenetrable suit of armor. Lumen View’s patent seems to specifically apply to dual-input selection, in which two users plug in preferences and information and are matched up accordingly — a process frequently seen on online dating sites. With FindTheBest, however, one user inputs information, and the company’s software uses it to help the user find and compare products, companies, and services. O’Connor and FindTheBest have filed for an early ruling with New York federal judge Denise Cote, hoping to get the case thrown out quickly.
“It’s only been tried a few times before — it’s a really high bar that you [have to clear] to prove it,” O’Connor said.
On September 16, FindTheBest filed a civil lawsuit against Lumen View Technology under Racketeer Influenced and Corrupt Organizations Act (RICO Act), the federal law initially designed to allow prosecutors to put organized-crime bosses behind bars for involvement in racketeering schemes harming other businesses. “It’s only been tried a few times before — it’s a really high bar that you [have to clear] to prove it,” O’Connor said. “We think we have the facts to prove it,” he went on, referencing CISCO Systems, Motorola, and Netgear’s similar, but ultimately unsuccessful, attempts to fight the patent troll Innovatio under RICO.
FindTheBest is drafting its final statement to Judge Cote, due by Friday, to attempt to get the patent case thrown out. The RICO case, which will also be in the hands of Cote, is still in its initial stages. Lumen View has until October 31 to file their first motion or response before the November 1 pretrial discussion.
But despite O’Connor’s personal and professional devotion to the cause, lasting change in U.S. patent law is mostly a legislative issue. “The endgame is either the federal government — the FTC [Federal Trade Commission] — goes after these people, or the California Attorney General goes after them, or Congress passes legislation that eliminates this practice,” he said. Still, the FindTheBest case has attracted national attention, as it could serve as valuable precedent for future cases and legislation. O’Connor, who recently spent time in Washington, D.C., talking to other inventors and lawmakers about patent reform, doesn’t see himself as the champion of victimized companies, but he is more than willing to draw his sword when threatened.
“I’m not sure we’re trying to be the poster case; it’s just that we’re so irritated — that this incredible injustice exists in this country,” he said. “It’s an obvious scam; nobody wants to fight it, nobody’s willing to fight it, no one wants to stick their head up … and they just picked on the wrong company.”