Archery company sues LARPer over patents, then files gag motion to silence him
arstechnica.com
arstechnica.com
A sane court system would be able to investigate and dismiss the IP claims quickly, before they forced the defendant to incur any significant costs. The US courts, however, are not a sane system, especially where intellectual property is concerned. It is a system where people believe, first, that if you don't spend a lot of money on lawyers, then the merits won't save you. And it's a system where defendants almost never get to recoup the money spent on lawyers.
So we get this. When patents appear in the news, it's always a mean plaintiff trying to bully a meritorious defendant out of a market, or extort a payout. This is very different from the stories our lawmakers hear about, which are about patents protecting virtuous inventors from theft by big companies--a scenario which, as far as news headlines are concerned, never ever happens.
Their use of that trademark is probably fine (you're allowed to compare your products to those of other firms), but it's not correct to suggest that Global Archery is somehow enforcing a trademark on all of "larping".
The actual mechanics where the man is getting sued for patent infringement is likely an unrelated lash-out by "Archery Tag". Archery Tag just saw this guy deliver the "first blow" since he was purchasing Google Ads explicitly using their trademark without permission.
Which isn't trademark infringement in any way.
In particular, if YOU import something, you are responsible for ensuring it doesn't violate a patent, as I understand it. (See: recent Dollar Shave Club lawsuit).
That the German company did this "first" is relevant for overturning the patent, but that doesn't invalidate the case until said patent is dead, regrettably.
I can't tell from this article what's going on with enough detail, so it may or not be egregious behavior from either party, or just a "reasonable" legal dispute.
So how do you get these patents voided if there's clear evidence another company (the arrows he sells from Germany) produced something similar before? Pretty clear case of priors at least according to European patent law which is the only one I'm vaguely familiar with. I think that would be awesome. You bully you pay a hefty price.
"As a result of Larping’s tortuous interference with Global’s contractual relationships, Global respectfully requests this Court to enter judgment against Larping in such an amount to be proven at trial, together with punitive damages, pre-judgment and post-judgment interest at the highest legal rate, the costs of this action, and all other relief as this Court deems just and proper."
Global Archery are bullies. I hope this action causes their sales to shrivel.
edit: actually, it looks like things are much, much worse for Global Archery. It appears that iDV filed a German patent in 2004 for much the same thing as Global Archery's patent. It's where the guy is importing his arrows from!
Something tells me that they suddenly have a far bigger problem than they original anticipated. That $150,000 legal budget? I hope they top it up - I think someone is about to challenge their patent.
There are many rectrictions, civil and criminal, on free speech.
But, yeah litigant is kinda fucked even if they win case.
If the foam arrow already existed, how is it not prior art?
And if the patent is invalid how are they not using the courts to bully a competitor out of business?
Prior art COULD invalidate the patent. (remember that patents tend to have broad descriptions ("foam arrow!") and narrow specifics ("with a head in this shape, attached in this manner")
But invalidation that doesn't magically happen the moment prior art is found. Someone (Judge/USPTO) would have to rule that this IS prior art AND sufficient to invalidate the patent)
So even if the judge in this case decides this is prior art and kills the patent, this isn't "using the courts to bully a competitor out of business", but instead using the courts as legally correct. (sadly)
In recent history, we've seen a lot of cases where the courts trust and rely on the USPTO to rule correctly on patents, and the USPTO trusts and relies on the courts to test patents, so we end up with a lot of patents, a lot of cases, and a lot of lawyers getting paid.
Unfortunately you can sue with unenforceable patent. It's just that you lose if the other guy has enough money. But in many cases the other guy doesn't have the money.
If, indeed, foam arrows existed (and were publicly known, not some sort of trade secret) before the date that the patent was issued then that would make the patent invalid. There is a point in the legal process where the defendant is allowed to argue that the patent was invalid. Unfortunately, in many cases that point comes AFTER the defendant has already run out of money and been forced to concede the case.
Using the courts to bully a competitor out of business is perfectly legal. For instance, if the competitor is illegally selling a product that uses your validly patented invention, then putting them out of business (and/or requiring them to obtain a license for the patent) is exactly what the law requires. Your application of the word "bully" simply means "to demand something which I think is unfair". Now, if the patent is NOT valid, then the whole argument falls apart, but as I mentioned, that comes up at a later point in the legal process.
I'd recommend it when you have the chance.
Has the US Patent Office reached a conclusion on this question?