Patent Fight Pending

When a company sues a notorious critic for infringement, is it just business or intimidation?

It was a sunny morning in July and Greg Aharonian, the author and publisher of the country's leading Internet patent newsletter, was eating a bowl of Cheerios in his Financial District apartment when an unexpected visitor knocked at his door. To his surprise, the casually dressed stranger had come to deliver a lawsuit alleging that Aharonian had infringed a patent owned by a Chicago company called TechSearch.

Aharonian was well aware of the company and its patent. He makes a living challenging the American patent system, and in fact, a few months before the lawsuit arrived at his doorstep, Aharonian had sent out an issue of his e-mail newsletter with a scathing critique of the very patent he was now accused of infringing. In his typical gloves-off style, Aharonian had called the TechSearch patent "idiotic" and "crappy." According to him, the patent was so ridiculously broad that virtually anyone using the Internet would at some time be guilty of violating it.

Though his friends often joked that he might one day get slapped with a libel lawsuit for his acerbic rants, Aharonian says he never thought he would be sued for infringement.

"At least libel would be legitimate, but [the TechSearch] charge is totally bogus," insists Aharonian, who is both respected and excoriated in the patent world. "I run a Web site that has nothing to do with their patent. It pisses me off big time."

Aharonian says the suit was filed to silence his scorching criticisms of the TechSearch patent -- an attempt to violate his freedom of speech. "It's subtle First Amendment busting," Aharonian says. "I'm not a traditional target because my Web site doesn't make any money. They're trying to harass me and it's maddening because it costs tens of thousands of dollars to fight this off, for a patent that most people would agree doesn't mean anything."

Some experts in the field agree that the TechSearch lawsuit -- thought to be one of the first patent lawsuits potentially aimed at silencing a critic -- is unusual and problematic.

"Aharonian has been caustic, and caustic toward me, but I think this is an outrageous lawsuit," says Lawrence Lessig, a Stanford University law professor who specializes in intellectual property and First Amendment issues. "Patent lawsuits typically don't think about the First Amendment, but the clear motivation here is to silence Aharonian the critic. It's exactly the worst way patents can be used."

But TechSearch maintains that the case is purely about infringement, and that Aharonian and three other defendants (an Illinois Acura dealership, the Green Bay Packers football team, and an adult Web site) have violated its "Remote Query Communication System" patent on their commercial Web sites. The patent, which involves the popular pro-cess of compressing and decompressing computer data from a remote server, is now being re-examined by the U.S. Patent and Trademark Office. But TechSearch points to four previous suits in which the alleged patent violators have settled and agreed to pay a licensing fee.

Bespectacled and slightly pudgy, Aharonian is a stereotypical middle-aged techie. Though unremarkable in appearance, his hypercritical tendencies have made him notorious in his field -- he has even been dubbed the "Matt Drudge of patents" by his detractors. That's because Aharonian, who works from his cluttered 20th-floor apartment, makes a living out of lambasting the U.S. Patent and Trademark Office for issuing what he calls overly broad and sometimes ludicrous patents (such as one awarded in 1996 for the invention of 3-D pie charts).

In Aharonian's opinion, the government gives out patents too easily and does a poor job of weeding out bad ones. Especially in the burgeoning field of software and Internet patents, he says, the government does not do a thorough job of digging for "prior art" -- that is, documentation that the invention already exists. Instead, the patent office issues patents for things that are neither "new" nor "non-obvious" -- two of the major criteria for awarding a patent. In his estimation, about two-thirds of the software patents granted each year -- or about 20,000 -- are invalid.

And so, for more than seven years, Aharonian has penned sometimes scathing rants on the patent system in his e-mail newsletter, which goes out to about 3,000 subscribers all over the world. And he is only too happy to condemn the patent office to anyone who will listen. In September, for example, he told USA Todaythat the patent system is becoming "extortion. Patent quality in this country is a joke. It's getting worse."

Among several law firms, Aharonian is known as a "patent buster" for his work as a consultant. He helps patent attorneys fend off infringement suits against their clients by spending his days scouring the engineering libraries of local universities to dig up prior art.

UC Berkeley patent law professor Mark Lemley says Aharonian, though harsh, is generally considered a valid critic. Lemley adds that the patent office is severely underfunded and understaffed, lacking the resources to do more thorough research.

But Aharonian's critique of the system doesn't stop with the patent process. Bad patents can create serious repercussions, he argues -- and the TechSearch lawsuit is a prime example.

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