The fun and games in this move by Newegg - imagery and language are hilarious - mask their serious intent.
Newegg seems to be switching to offence and has carefully chosen its moment. The heartfelt video, the relatively small sums, demonstrably trollish behaviour from the counterparty, a clear underdog, building a movement of "geeks" are indicators of eventual success. Not just in this case, but in raising awareness towards political action.
Newegg, won't mind if the troll backs down now. It sends a clear message to other trolls that a white knight is possible, which can generate adverse publicity as well as legal cost. In a sense, they are using the trolls' own playbook against them. Nice strategy.
In their patent victory against Alcatel, their General Counsel bemoaned the fact that they had a lack of litigation now. Apparently as soon as patent trolls realize that Newegg never, ever backs down they withdraw their lawsuits.
It's a defensive tactic but an offensive strategy.
No, not that kind of offensive. I gave the larping.org guy $10 for legal fees, even though LARPers are strange folk unlike us normal, sane tabletop RPG players.
> No, not that kind of offensive. I gave the larping.org guy $10 for legal fees, even though LARPers are strange folk unlike us normal, sane tabletop RPG players.
Ok, I laughed. It's kind of true though, I'm always reminded of this video:
I had a roommate that was into melee, where they'd all get together and make fake weapons and then fight. They had a point system and everything, it was interesting to watch.
Clicking around [0], one finds that Global's business isn't even really based on selling foam arrows. No, they sell franchises to "Archery Tag® Licensees", to whom they then sell foam arrows. Then we learn:
"We do not guarantee regions, cities, or areas for our Licensees. We believe that having more Licensees in one area brings a larger brand awareness for Archery Tag®."
What a fucking scam. No wonder they're patent trolls. They already make a living screwing over their franchisees, why not try to screw over everyone else too?
I never thought I'd find myself defending a plaintiff in a patent lawsuit, but some of HN has really gone off the deep end with this anti-patent nonsense.
This is a company who are defending their legally granted competitive advantage in a field in which they actually compete. I don't know that I consider a foam arrow sufficiently non-obvious to patent, but that's neither here nor there.
Not only is this not troll-like, this is precisely the sort of situation for which patents were designed. Someone comes up with an idea; thinks, "huh, this idea would be easy to steal"; and applies for protection against it being stolen.
A patent does not have to be on a final good or service, and owning a patent does not oblige you to sell a product to anyone who asks. If you have a patent on industrial machinery to protect your own production chain, you're not required to build one for anyone who is willing to put up the cash for it. It is nevertheless reasonable for you to sue someone who copies it - "they won't sell it to me" is not a defence against patent infringement.
To draw a rather apt analogy - there is a laser tag company in my parts (basically you run around in a darkened room shooting each other with guns that fire a little IR laser) - they don't sell their equipment to anyone who asks - it's a competitive advantage for their venues. I don't know whether or not they have patents, but I don't see how you could reasonably argue that they shouldn't have them if they designed the equipment, or that they should be required to provide that equipment to others. If they were required to do that, what would be the point of the patent?
And just to save accusations of cherry-picking, I agree with you about the non-guaranteed region rah rah, but it's rather beside the point.
>It is nevertheless reasonable for you to sue someone who copies it - "they won't sell it to me" is not a defence against patent infringement.
Personally, I think it's ridiculous that someone could create something "obvious", refuse to sell it to you and also restrict you from making it yourself. The world shouldn't work that way. I hope courts agree.
I agree with you on the creating something obvious part, and the patent perhaps shouldn't have been issued (though scroll down for more discussion on that, it's more complicated than it seems at first, and it looks like prior art is more of a concern that obviousness - the patent is not simply for "foam arrows").
But restrict you from making something they designed and won't sell you?
Well are you making it to sell or for personal use? Making it for personal use, I agree, and I think it's unfortunate that the law does not.
Selling it, which is what the defendant did? No, that's the point of a patent.
This entire post is beside the point. I was talking about a franchising scam. These are not the business practices of a successful manufacturer successfully selling its valuable products. Apple and Samsung don't pull this kind of shit. This sort of thing preys on unsophisticated people who have a bit of money saved, by separating them from that money before they've seen enough to know how valuable (or not) the foam arrow product is. Read the first sentence of the FAQ: "Pricing details are available when an application to be a Licensee is approved..."
I'm all for caveat emptor, but once they've crossed that line they've lost the moral status to demand society's assistance in punishing competitors. Besides, what are we talking about here? Any 9yo could figure out how to attach a foam tip to an arrow. They've spent far more time obtaining patents and setting up complicated commercial schemes than they have developing a product. The entire patent system is seen by many as harmful and unnecessary. This isn't the example that's going to prove it's not.
How is it a franchising scam? I'm agreeing that not guaranteeing an operating area is a bit shit, but reports (from within this very thread, no less), suggest that it is very much a real and, more, worthwhile, outfit. Then again, I don't really care if it's good or a pile of shit, there's no law against having a crappy product.
Withholding pricing details is pretty standard for franchises. I would probably agree (somewhat) with a point that franchising as a system often tries to take advantage of unsophisticated people, but I don't see much evidence that this is anything more than par for the course.
> Any 9yo could figure out how to attach a foam tip to an arrow.
As I said, I didn't disagree with the obviousness, though it's become murkier, read more discussion below.
> They've spent far more time obtaining patents and setting up complicated commercial schemes than they have developing a product.
I don't understand how it could be called a competitive advantage when you have to run to the law to fend off your competitors.
Actually I don't really understand the whole idea theft scenario, shouldn't it be the patent holder's responsibility to prove others have stolen their idea? Innocent until proven guilty etc. If your product can be 'reverse engineered' just by looking at them, good luck with that, chances it was obvious in the first place.
>I don't understand how it could be called a competitive advantage when you have to run to the law to fend off your competitors.
The whole point of the patent system is to encourage people not to maintain trade secrets - to share their developments and in exchange be guaranteed time in which someone is not allowed to compete on that front. You're giving up practical ability to defend your advantage, on the understanding that the law will pick up the slack.
>If your product can be 'reverse engineered' just by looking at them, good luck with that, chances it was obvious in the first place
Sophistry. Look at Velcro: it's easy to see how it works on examination, but it was a damned clever idea, and not remotely obvious.
What is so bad about trade secrets? You either share or keep to yourself. Sharing something then prohibiting others from replicating it is just pretending that there is a cake you could eat, but you are forbidden to do so.
I agree we have a different definition for obvious, but I would argue that mine is at least very straightforward. If you think your idea is novel but very simple, you have to go a step further and find out how to monetize it better than others. I think it is my responsibility to protect my interests e.g. trying to keep it a secret by obfuscating the code. We do this all the time in software.
Nothing in particular, but there are lots of times when it's useful to a society for people not to keep them.
Patents generally last a little over a decade, after which competitors are free to use them. If you keep your developments secret, they could stay secret for decades, which means decades in which competitors couldn't study, improve upon, fix your ideas. It slows the pace of progress, or so the argument goes.
You can agree or disagree with the sentiment, but I don't think it can be dismissed out of hand.
>you have to go a step further and find out how to monetize it
I think this comes back to society's interest, as all discussions of patents must.
It's not necessarily in society's interest for you to withhold developments until you find a way to protect them.
What if drug manufacturers refused to sell drugs, only dispensing them on location, for fear of others stealing their secrets?
What if someone came up with an idea like Velcro, to hark back, and never developed it, seeing the cost and realising that the IP could never be protected. Would we be better off?
I would like to believe the answer is yes, but to be honest I'm not so sure. I don't think patents are the main driving force of innovation and research, and we would come to a halt without them. But even if they are, when you are the first to come up with an idea you are still in the best position to turn a profit off it without patents. Sure, your margins might be smaller, but society as a whole should benefit from a more competitive environment, compared to squeezing every drop of money to a single company.
From previous discussions I took away big pharma R&D and PR cost breakdown is usually very sad. You can defend a case like Solvadi, that Gilead is entitled to maximize their profits, but it is not in society's best interest after all, as I think it is not directly looped back into innovation.
You demonstrate a misunderstanding of why the patent system exists (not surprising given the people that profit from it go great lengths to ensure this is the public perception). The legal protections baked in the the patent system are supposed to be a side effect; they are the carrot to get people to buy into registering a patent. The intended result is to provide a path for non obvious ideas to enter the public domain. The legal protection is provided to discourage people from hiding or obfuscating construction plans to maintain their monopoly while also ensuring that those same plans are on record at the patent office so as soon as the device enters public domain access is available to all.
Under this scheme the "ability to franchise the making of foam in a specific arbitrary shape" completely fails the test of being unique or novel and is 100% divergent to why the patent system exists.
I was actually intentionally skipping over everything about the granting of the patent, the non-obviousness was just the first thing that came to mind.
The point I was making, which I thought my post made clear, was that the granting of the patent is immaterial in discussions of its enforcement.
But it's not immaterial. When a company becomes aware that its patent should not have been granted and can be invalidated, it is entirely (and legally) pertinent when considering bad faith enforcement actions.
In this case, the company is likely now aware that the particular "stolen" arrows in question had been designed and manufactured by that manufacturer many years before this company filed its patent.
The company is not protecting itself against copies of an idea that it came up with.
But did it know it before the case? Has it had time to withdraw its claim since this information has become widely known? In fact, does anyone know anything about the company besides what its legal opponents have said?
I'm not saying this company is necessarily acting in good faith, but there is an enormous presumption of guilt going on, which started long before anyone started discussing prior art, on a case which is not prima facie unreasonable.
Oh, now I understand! You meant to say that if we ignore everything about the plaintiff, the actions the plaintiff has taken in and out of court, what we know about the patent, and what we know about the products that were actually being sold, we should be able to consider the case in tabula rasa fashion, and give the patent the benefit of the doubt. I guess I was confused because this was in response to something about odious franchising...
Except, any particular patent won't get the benefit of the doubt from a jury of software people. We've seen the harm patents have done in our industry, and we're sensitive to the harms they've done in other industries and in society as a whole. There probably are some plaintiffs that would inspire some sympathy from us despite that, but this certainly isn't such a plaintiff.
That might be how you're choosing to use it, but I've seen widespread usage of "patent troll" to mean anyone abusing patents in a variety of ways, whether they make a product or not. So it depends on who's doing the describing.
In this case, Newegg's attorney concisely described another type of patent troll.
> but I've seen widespread usage of "patent troll" to mean anyone abusing patents
Or, on Hacker News, used to describe a software company defending their trademark of a programming language name for a language they sell and maintain.
Question: if it means something other than NPE, then what vague definition of "abuse" should we be relying on? Because if a company is making a patented product, and someone infringes that patent, and the company sues them... and THAT'S patent trolling, then literally anything can count as patent trolling.
No. Words have meaning. Stop trying to pervert their meanings for effect.
Few people would describe RSA as a patent troll. Few people would describe Intellectual Ventures as anything but. In between, there's a wide spectrum of entities with varying degrees of contribution, sympathy, and abuse. Whether any particular litigant qualifies as a patent troll depends heavily on who is speaking.
As far as definitions of "abuse", for one definition, see http://patentlyo.com/patent/2011/09/rader-patent-litigation.... : 'someone simply seeking litigation-cost settlements, or, in other words, "any party that attempts to enforce a patent far beyond its actual value or contribution to the prior art."' Newegg provided another clear and concise definition; both seem quite reasonable.
The phrase "foam-arrow lawsuit" suggests rather strongly that those definitions probably apply here.
The phrase as used by Newegg had the desired effect with their target audiences. And if using the phrase "patent troll" contributes to increased vilification of offensive patent use in general, I don't have any problem with that, either.
> The phrase as used by Newegg had the desired effect with their target audiences.
Exactly my point. It's using a dirty word in an unusual way to cast aspersions.
> And if using the phrase "patent troll" contributes to increased vilification of offensive patent use in general, I don't have any problem with that, either.
I think the grandparent post pretty clearly demonstrated a pretty good definition:
> Global is asserting questionable IP rights aggressively and counting on the high cost of defensive litigation to win, so we consider it a troll
If they are deliberately using shady claims (e.g. clearly overly broad interpretations of their patent) and counting on the high cost of litigation to get their desired outcome, I don't see what it matters whether they are a practicing or non practicing entity.
To me a patent troll has always been the patent equivalent of a SLAPP. Where you file not based on an expectation of winning, but that it will be less expensive for the defendant to settle than to fight the suit and win.
Here's a definition of abuse: filing a lawsuit they don't expect to win on the merits, but offering to settle for an amount small enough to make settling rational in the short term for the victim.
Something about this whole saga makes me think that both the underlying problem and the game of legal chicken could have been avoided if Global Archery just asked nicely in the first place. Unless of course it was hoping to drive the guy out of business, in which case, it's awesome that Newegg is helping out, because the courts should not be a tool for running fair competitors out of business.
You read about the franchising crap in the other thread, have you forgotten? Their own FAQ states clearly that they would never sell foam arrows to a distributor like the LARPer.
Spending $150,000 to stop $2k/month of volume from being sold at any rate of sales cannabilisation is foolish business. Their intention was to send a message. Any lawyer stooping this low should be ashamed of their actions.
Looks like the patents are somewhat original. '413 has a removable foam tip secured with barbs and '159 is similar with an overmolded tip. Might be tricky to come up with prior art on those.
The trademark violation looks legit too. AdWords were being used with their trademark as a keyword. Don't see how this company is trolling other than the ridiculous gag order.
Publication number US8449413 B1
Publication type Grant
Application number US 13/311,641
Publication date May 28, 2013
Priority date Dec 6, 2011
Publication number US8932159 B2
Publication type Grant
Application number US 13/871,537
Publication date Jan 13, 2015
Filing date Apr 26, 2013
Priority date Apr 26, 2013
It looks like iDV, where this dude buy's his arrows to resell falls under prior art as their stuff is shown in YouTube videos as far back as at least 2010:
Using other people's trademarks as keywords in Adwords bidding is not a trademark violation, it's standard practice. It's totally legit to use someone else's trademarks in advertising your product, as long as you are not claiming that you are selling under that trademark.
Just think about the classic soda taste test ads - "Coke tastes better than Pepsi".
Newegg has definitely earned a customer in me from their work! I'm going to buy from Newegg to support them even if what I'm ordering is a little more than what I could find it for on another site.
Why don't other distributors contribute? His gofundme says this could set a precedent for them to be sued. Seems worth their time and money to be sure this goes away now.
It might be wise for distributors to kick in some cash, but Gwyther uses the term "precedent" overbroadly in his gofundme video.
If he were to settle, there would be no precedent set. And even if he went to trial and lost, other District Courts would not be bound by the determination in the Gwyther case. This would only be considered as "persuasive precedent", which courts ignore all the time (see, e.g., every circuit split ever).
To be clear, I agree completely that they should band together to nip this in the bud. But this is only for practical reasons—not legal ones.
I like NewEgg's crusade against patent trolls, but this particular battle feels particularly off base. It's not just that the patent "troll" is not in an slightly unrelated business. It's that they're an operating company with a patent on a product whose business being undercut by someone else selling the same product. And this is the first patent suit they've asserted, and they've done it against one particular person, who is selling to their customers. I'm not a huge fan of patents, but will they win?
If you like what Newegg is doing... Buy from Newegg! You might save a few dollars with Amazon, but you'll save a lot more than that buying from Newegg.
> Cheng says that while Global Archery is an operating company, it still meets his criteria for being a patent troll.
> "Global is asserting questionable IP rights aggressively and counting on the high cost of defensive litigation to win, so we consider it a troll," Cheng said. "Newegg hates trolls—they bully the weak, they hurt consumers, they hurt America, and they just suck."
Yeah, no. Nobody really considers a company that is actually making the products its IP covers a troll. You're just throwing that word around because of its negative connotations, and trying to redefine it.
Your dismissal seems to elide the word questionable.
Back in the dark ages of computing, AT&T had a patent on the concept of "backing store" for windows, that is, the notion that if you had a GUI with two overlapping windows, you could save the state of the window underneath the other one rather than having to redraw the entire window when the top window moves or is closed. This is an extremely questionable patent; AT&T didn't even invent this -- Lisp machines did that, too, but they didn't try to patent it because it's blindingly obvious.
AT&T should never have been granted this patent, and their engineers had to know it. I would argue that "patent troll," although the term didn't exist back then, absolutely applies here, regardless of whether AT&T happened to be shipping their own system that used a backing store. Maybe your personal definition of "patent troll" requires the troll to be an NPE, but an awful lot of people would consider Wikipedia's definition to be more on point than yours: "a patent troll is a person or company that attempts to enforce patent rights against accused infringers far beyond the patent's actual value or contribution to the prior art."
I'm gonna tell you a secret. Every patent claim is questionable. That's why in almost every infringement litigation, validity and enforceability are at issue.
Newegg seems to be switching to offence and has carefully chosen its moment. The heartfelt video, the relatively small sums, demonstrably trollish behaviour from the counterparty, a clear underdog, building a movement of "geeks" are indicators of eventual success. Not just in this case, but in raising awareness towards political action.
Newegg, won't mind if the troll backs down now. It sends a clear message to other trolls that a white knight is possible, which can generate adverse publicity as well as legal cost. In a sense, they are using the trolls' own playbook against them. Nice strategy.