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Friday, October 12, 2007

Texas Judge Bans Using Term "Patent Troll" In Trial

Judge Folsom, in the Eastern District of Texas, granted a motion in limine in the now-being-tried (according to Michael Smith) Cybergym v. Icon Health & Fitness case, preventing the defendant from calling Paul Hickman a "patent troll" because the term "has no probative value and would unduly prejudice the Plaintiff." I suppose defendant can call him a non-practicing entity. Also, Judge Folsom allowed the defendant to refer to Hickman's associated licensing entity companies. I guess the defendant will have to come up with a clever way of calling Hickman a troll without using the word.

That's probably a better idea, anyway. Juries don't like it when an attorney bashes the other side. Much better in that case to just present the facts and let the presentation of those facts paint the picture. Let's just hope the jurors don't google "Paul Hickman" or "Cybergym," because they'll get my website, where I certainly have called Mr. Hickman and his non-practicing entity companies patent trolls.


Anonymous said...

Wow, what a shocker....you can't refer to the plaintiff as a 'patent troll'. Oh, I know you would like that to be allowed, or better yet, you could be called as an expert witness.

You could go into court with your ridiculous troll 'rating system' that you came up with and give the jury a good laugh before they go to lunch or something.

I mean come on already....it DOES NOT MATTER if your an NPE, shell, or whatever, if you have the patent in your hot little hand and someone or somebody infringes it, it's still just that, AN INFRINGEMENT!!!!

Why is that so hard for you to accept? It's so simple, yet you seem so confused. Reality is sometimes hard to accept, but it is what it is. Sorry you don't like it.

Anonymous said...

I love how people get worked up over someone's opinion on a subject (say... patents?). Then they spout the party line 'logic will prevail! patents should be upheld regardless! the uspto is god!' only slightly faster than my mom buys cereal she doesn't eat because it's on sale (she's fscking fast, too). Patents are bad for software, because software is like nothing that was around when patents were conceived (like mp3s weren't around when RIAA business models were spawned). Like a work of art, software should be copyrighted, so that it cannot be copied verbatim. It's about the implementation, not the resulting functionality. Why should every author of fiction be able to write similar stories of lust and romance on the high seas without litigation, yet every author of code resulting in a visual sprite that spans virtual workspaces be hunted for sport by big business? The reader of the novel has feelings and emotions triggered by a steamy love scene, just like the user of the GUI has emotions of their own at being able to use an application on multiple desktops.
Any idiot can see the folly in patenting a storyline, we only have technology's fast pace to blame for why no one non-technical realizes the mistake and abusive nature of software patents.
It's not about innovation, it's about capitalization. Go ahead, argue with me... and reveal your true nature! ;)

Anonymous said...

Yes, but unlike in the case of a company that actually makes something, you cant contersue with your own set of patents that should not have been granted, which is what the root problem is.

Anonymous said...

Dear Mr. Anonymous;

You seem to take this a little personally.

By being outside the industry in question, patent trolls have no economic incentive to behave reasonably, since they are immune to retaliatory patent suits.

This is problematic in much the same way that "asymmetric warfare" is problematic for conventional military powers.

So yeah, those of us who make stuff don't like patent trolls.

Anonymous said...

To the anonymous above: yeah you are right, but laws, especially b0rked laws should be changed, or at least the system should prevent that stupid laws are abused...

Anonymous said...

That's a stupid in limine to bring.

Go ahead with your name calling, Mr. Defendant - see where that gets you. Go ahead and tell the jury that the plaintiff shouldn't be suing in their backyard and filling their friends pockets with the commerce they bring to the district.

The DEFENDANTS should be bringing an in limine to exclude any testimony or documents from their own people that uses the term troll..

Troll Tracker said...

Go ahead and tell the jury that the plaintiff shouldn't be suing in their backyard

You don't read my blog, do you? None of these patent troll plaintiffs are in "their backyard." They are primarily out-of-staters who form shell corporations to take advantage of plaintiff-friendly East Texas juries, and then bring the money back to add a new addition to their mansions in New Jersey and Westchester County.

Anonymous said...

12:59 poster responding to TT:

I do read your blog and I do know the district. The "their" in "their backyard" was a reference to the jury's backyard, which I thought would be clear based on the rest of the sentence -which refers to the pockets of "their friends" (ie. the jury's friends).

Speaking of such pockets, aren't you in that group? Unless you are in house counsel, I presume you make quite a lot of your hours defending against those you call trolls. But I suppose you'd give all that up based on principle...

Russell said...

Another problem with patent trolls is that the troll has no proof that they ever had a working model. So a plan for trolling with patents is 1) patent an idea that you don't have working yet, and 2) when somebody gets it working, sue them. Since the patent examiners don't require a working model anymore, this plan is successful for trolls. Doesn't work for people practicing the patent. Patent trolling FTW.

Anonymous said...


I assume from your comments that you are someone that feels aggreived by "patent trolls" and not a patent lawyer (although the two categories are not exclusive).

There are some concepts that you should read up on; they include: the enablement and written description requirements, and the concept of constructive reduction to practice.

The sum of these concepts is that you can't file a patent on the idea of a rocket ship to the moon and then simply sit back and wait for NASA to figure out how to build it and then sue them when they do. This applies to all inventors.

R said...


Did you just learn how to use the word 'in limine'? It's an adjective not a noun.

You really don't have to show the world how 'well' you grasp the language.

Anonymous said...

To "R":

That's what you have to add? You sound like a first year law student who's just cracked open his brand new Black's.

Perhaps if you practiced law you'd know that lawyers (and judges) often refer to a motion in limine as simply an "in limine." It's shorthand - presumably like "R" is.