Patent Fight Pending

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

Aharonian explains that a patent is always assumed to be valid, and even if it is overly broad or not unique, the patent holder still has the power to sue a vast universe of unknowing violators. He says that if 2 percent of the weak software patents turn into lawsuits each year, that translates into about 400 questionable cases a year. Ironically, it was for that reason Aharonian so viciously criticized the TechSearch patent in his newsletter months ago.

In a recent newsletter, Aharonian wrote that the TechSearch patent is "so pathetic that if the PTO [Patent and Trademark Office] had any pride it would reexamine on its own. Sadly, I am hearing companies settle with TechSearch because the license fee is so cheap ... that it isn't even worth having an invalidity opinion prepared -- a form of extortion the PTO must feel good about because one of the PTO's "customers' is happily making money."

The patent in dispute is TechSearch's Remote Query Communication System (Patent No. 5,253,341). In 1997, TechSearch began working to acquire the patent, which had been issued jointly to a retired Mobil Oil employee and a New Jersey entrepreneur in 1993 after the two men claimed to invent the process of using a computer to compress and decompress data from a remote server. Theoretically, the TechSearch patent could be used to protect the popular process of downloading and opening a graphic file such as a GIF (a compressed file) from the Internet (a remote server). Under this definition, anyone looking at a graphically enhanced Web page is violating the TechSearch patent.

"In the broadest sense, anything involving compression and decompression on the Internet would violate the patent," explains Ray Niro Sr., TechSearch's attorney. "It's probably right [that anyone opening a GIF could be violating the patent], but we have only sued and sought to license those that use the Internet for commercial purposes. We and our client are not attempting to enforce the patent against individual users. If someone wants to send an e-mail to a friend with a photo attachment, even if it's technically a violation, we don't seek to enforce it."

In the past year, Niro has helped TechSearch file four lawsuits against about 15 companies for infringing its patent. The Chicago company, whose business is helping inventors uphold their patents, has been fairly successful in these suits. All previous defendants, including United Airlines and Walgreens, have settled their cases and agreed to pay a licensing fee that ranges from $30,000 to $80,000; in the last year, more than 50 companies have paid for a TechSearch license to avoid litigation. TechSearch says a significant portion of the fee goes to the inventors or their families.

Berkeley professor Lemley says validating the TechSearch patent could have great implications on the Internet. "If the patent is as broad as they say it is, and it's valid, then it's going to come as a tremendous shock to a bunch of people," Lemley says. "They [TechSearch] would have the power to shut down the Internet, and basically everyone who uses the Web would have to take a license from them.

"It's hard to say whether the patent is valid because the question is: Did anyone do it before them? And I don't know. Under different circumstances, the person to ask would be Greg Aharonian."

Aharonian, however, refuses to fork over $35,000 for a license, and he stalwartly refuses to settle. He has hired a top-notch patent attorney from Washington, D.C., and continues to insist that he has not violated the patent. Aharonian also says he has a stack of prior art that will invalidate the patent, though he refuses to show it to the TechSearch attorneys. Two other parties -- to which Aharonian has no ties -- have asked the government to re-examine the patent. Aharonian's case has been put on hold until the government offers a decision.

Ultimately, Aharonian says that TechSearch is using the patent infringement lawsuit as a way to discourage him from criticizing the company. He argues that the TechSearch lawsuit -- which accuses Aharonian of "shamelessly, and oftentimes profanely, attack[ing] the United States Government, specifically the Patent and Trademark Office" -- focuses primarily on his brash writing style instead of the legal issues.

"The complaint is very bare bones, and there's nothing about why Greg is infringing," says UC Berkeley's Lemley. "It does seem like TechSearch sued Aharonian for political reasons because he was helping to prove that the patent was invalid, but I don't think there's anything to prevent them from doing it. It's troubling."

First Amendment arguments, however, carry little weight in a patent suit. "He could say that they sued him to keep him from speaking out, but patent suits don't have First Amendment defenses," Lemley says.

TechSearch's Niro, however, says the case is strictly about intellectual property. "Aharonian has it in his mind that we are trying to silence him, but First Amendment rights have nothing to do with this lawsuit. This is America -- he can say what he wants to say. What he can't do is violate this patent."

Though Aharonian continues to fight the suit and bust patents, he insinuates that in some ways TechSearch may already have won. "I've started to think twice about the things I write now," he says. "I'm facing $40,000 lawyer's bills. That's a lot of money. Now, in the newsletter, it's pretty much, "Someone sued somebody else, and here's the patent number.' Before, I would write, "Somebody sued somebody and one side is an asshole.'"

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