By Joseph N. Hosteny of Niro, Scavone, Haller & NiroRegular IP Today columnist Joseph N. Hosteny is an intellectual property
litigation attorney with the Chicago law firm of Niro, Scavone, Haller & Niro. A Registered Professional
Engineer and former Assistant US Attorney, his articles have also appeared in Corporate
Counsel Magazine, The Docket (American Corporate Counsel Association), American
Medical News, Inventors’ Digest, Litigation Magazine and Assembly Engineering Magazine.
Mr. Hosteny can be reached at (312) 236-0733, or by e-mail at jhosteny@hosteny.com, or by visiting his website at http://www.hosteny.com.
Anonymity is a disguise -- often a repugnant one. For example, pictures of a
teenaged girl killed in an automobile accident were posted anonymously by someone on the Internet.
The photos were of her dead and mutilated body inside the car.
The Chicago Tribune announced on February 1 that it was shutting
down the comment boards on its web site for all political news stories. See “Crossroads of Web,
Credibility Full of Potholes,” by Timothy McNulty. The reason? Describing recent posted
comments, McNulty said:
Those are the latest on the list of volatile topics -- including race, immigration and rape -- that
bring out anonymous writers who are so nasty, obscene and racist that the boards were beginning to
read like a community of foul-mouthed bigots.
What, you say, does this have to do with intellectual property litigation? As it turns
out, quit a lot. Some things written anonymously might be witty, like “Primary Colors,” or
the blog written by a fake “Steve Jobs.” But the vast majority are not. Anonymous
postings are poisoning the online well, making any real debate over our patent system in the Internet
arena difficult to nearly impossible. We litigators have been told, over and over, that we are not civil
enough to each other. Unlike some politicians, many of us have heard -- and heeded -- the
message. But these anonymous bloggers, and those who post anonymous comments to these blogs,
can say whatever they want. As McNulty said in his article, “Anonymity emboldens the cowardly
and the liars.”
But recently, the situation has become worse. We are now seeing death threats.
Before we go further, keep in mind that, on December 6, 2006, two patent lawyers and one of their
staffers in Chicago were shot to death by a disgruntled client. In 2005, the mother and husband of a
federal district judge in Chicago were shot and killed by a deranged litigant.
Many of you who are Internet-savvy know the anonymous law blog, TrollTracker.
This blog owner does not want anyone to know who he is. On December 6, 2007, a commenter on the
TrollTracker’s blog said, naming one of my partners, “If you shoot and kill Ray Niro
tonight, I would consider it a justifiable killing.” To my knowledge,
TrollTracker does not moderate comments, so anyone can post anything. At least this threat
had a name attached to it, and was removed, but not until a month later.
Another blog that includes lots of anonymous posts is Slashdot.org. One posting on
Slashdot identified Ray Niro by name, and posted his home addresses and phone numbers, and even
listed his wife’s name. Later, in another anonymous posting on Slashdot, a
“courageous” fellow added his “thoughts,” by saying this:
We already know who this Lawyer is, and who his firm is and who they work for. There is an
exceptionally expedient way for society to deal with this. It is unfortunate that it is necessary, but we
must reconcile ourselves to fact that societal institutions have been corrupted. We must search for
means to enact reform, and if they have forced us to take plays from their books, then so be it.
Vigilantism is not only necessary, it is justified. We need to seek out the personal information of
this lawyer, his entire firm, and the President and board of directors of the companies that employ
them. Publish their names, home addresses, any phone numbers that can be found, their license plate
numbers, the names of their family members, the schools their children attend. Everything. This is War,
ladies and gentlemen. Of a more dire and extreme sort than any in history. Only by securing true
strategic objectives can the enemy be worn down. We must destroy not just his willingness, but his
ability to fight. Destroy the ability of those who drive the conflict to live their lives in the most basic way
and victory is assured.
We, the greater whole of society, are everywhere. We surround them. We can destroy them. All
that is required is the will.
Is this person just a crank, or someone who is really prepared to “destroy
them”? The persons who shot and killed a judge’s family and several people in a law firm
were thought to be cranks, too. But they were cranks with guns and ammunition.
The anonymous bloggers say that firms like ours -- intellectual property litigation
firms -- are “trolls” and that we destroy innovation. But those commenters -- or should I
say “ranters”? -- aren’t bothered by the facts. To paraphrase what the late
Chicago reporter and humorist, Finley Peter Dunne, once said (referring to fanatics), these people do
exactly what the Lord would do if He had all the facts of the situation at hand. The facts these
anonymous bloggers don’t want to hear about include the cases our firm has won on behalf of
companies trying to protect the intellectual property that makes them successful. Our firm has a great
record of representing both companies and individuals. In the last fourteen months, we have won four
multi-million-dollar verdicts for real companies, with real inventions, all with findings of willful
infringement. Each was on behalf of a real company. One, for a manufacturing company, Acumed,
involved the infringement of a significant patent on an implant for the treatment of shoulder fractures
that was copied by a deliberate infringer. The trial judge enjoined that willful infringement and
her judgment was affirmed on appeal.
In a second case, we represented Black & Decker -- the creator of the DeWalt
brand of power tools -- against a large foreign infringer of its patents on a unique radio charger used by
construction workers. That infringement was also enjoined to protect Black & Decker's
investment in innovation (part of which was a $3 million payment made to an individual
inventor). A third case involved a small company in Pittsburgh that was founded by two
inventors who created new jobs for more than 100 people and then got crushed by a giant company
that willfully infringed its patents on the first Internet-based electronic system for auctioning municipal
bonds. The fourth case, tried in May, involved a publicly-traded manufacturing company named
Telecommunication Systems Inc., that invented a new system of inter-carrier text messaging.
The patented invention was copied by a deliberate infringer who told TCS it would rather pay lawyers
than respect invention. It is the infringer, not the patent owner, who is responsible for the damage done
to innovation.
Some of the individual inventors we have represented include: a man who was
deposed on his deathbed, whose wish was to take care of his family; a schoolteacher from Iowa who
had a better idea about color inks; an electrical engineer in Indianapolis who started his own business
after he was laid off when his job was moved overseas; an electrical engineer from Oklahoma who has
sixty patents to his name, and who established a successful business that makes and sells products;
and an army veteran, also with sixty patents to his name, who made his own products and
couldn’t even get a decent response from two major companies, one of whom thought it cute to
accuse him of inequitable conduct.
The anonymous bloggers say that firms like ours represent “shell”
companies, implying there is something illegal about a patent holding company. The criticism is
misplaced. Some large companies have subsidiaries that do nothing but own, license and litigate
patents. Individual patent owners should be entitled to have the same advantages, because some large
defendants with well-funded law firms may chase an individual plaintiff for the bloated fees the
defendant incurred by hiring a mega-firm. To make matters even worse, they try to collect out of the
inventor’s personal assets. A single individual is as entitled to the benefits and protections of the
corporate form as is any giant corporation.
Even successful individual inventors have endured struggles. Eli Whitney, who was
broke, invented the cotton gin. After being involved in many disputes over his invention, he concluded
that “an invention can be so valuable as to be worthless to its inventor.” He never
patented anything again. Alexander Graham Bell was a teacher and author. His patent for the telephone
led to years of litigation. Elias Howe, an unemployed machinist in frail health, spent five years inventing
the sewing machine. He was destitute for years, while others were using his invention. He didn’t
begin receiving any royalties on his 1846 patent until 1854. Chester Carlson, the inventor of
xerography, began his work in 1934. It took him four years to make a xerographic copy, and ten more
years before he got any support from Battelle. The first copy machine using his invention was sold in
1958, twenty-four years after he began his work.
People who wish to engage in the debate about patent law are welcome to do so,
even on the Internet. There are several excellent patent blogs out there. In the better ones, the
authors identify themselves. See Dennis Crouch’s Patently-O; Peter Zura’s 271 Patent
Blog; Lawrence Ebert’s IPBiz; PHOSITA (http://www.okpatents.com/phosita/), written by several lawyers from a firm;
Chicago IP Litigation Blog, by David Donoghue; and a lot of others. These lawyers are willing to stand
up for what they say. And because they are open about their identities, many attorneys –
including me -- are interested in what they have to say.
An even better example of having the courage to stand behind what you say was in
a public service advertisement that appeared just before the Super Bowl. The spot featured people like
Lovie Smith, Roger Staubach, Ronnie Lott and the widow of Pat Tillman reciting the Declaration of
Independence. I was reminded that all of the backers of the Declaration put their
names on it, so the English would know who to hang if the Revolution was not successful. That’s
walking the talk.
But the anonymous bloggers and their anonymous ranters/commenters are
different. They don’t have the courage to identify who they are, so that their postings and
comments will have to be responsible, rather than vile, and sometimes, even criminal. We are not able
to evaluate where they come from, what experiences have formed their lives, or what biases or
prejudices they may have that influence and shape their commentary, so that the reason -- or lack of
it -- for their views may be honestly judged. TrollTracker offers opinions about one of the clients we
represent, and his opinions are harsh, to say the least. TrollTracker’s postings include
references to “shell” corporations. Wouldn’t it be nice to know what, if any,
corporate work TrollTracker has done? Wouldn’t it be nice to know if TrollTracker represents, for
example, companies who are members of the misnamed Coalition for Patent Fairness? Wouldn’t
it be nice to know if TrollTracker has ever represented an individual or small company whose interests
were run over by, say, Intel, which secretly set up a front company in the Cayman Islands so it could
tell a judge in Texas that a patent was valuable at the same time it was telling a judge in California that
the same patent was worthless?
Imagine what our courts would be like if lawyers could behave like these bloggers
and commenters. They could appear under false names, and not identify their firms or describe their
backgrounds. Imagine what it might be like to hear from a judge who, covering his or her face, wrote
opinions that didn’t carry any judge’s name. And imagine what Congress would
be like if all of its members could argue and vote anonymously.
A good propagandist knows that repetition can make a lie true. It isn’t public
debate when anonymous posters slander their opposition, or encourage violence. It’s time for
these cowards to make themselves known.
NOTE: On
Saturday, February 23rd, several days after this column went to press, TrollTracker revealed his
identity on his blog.