Excuse Me Sir, You Owe Me Money For Breathing
Added on: 02.08.13, by Todd Knapp
We’ve all seen the warnings on products we use every day:
“Not to be taken internally” on a bar of soap you are opening
“This product not intended to prevent disease” on a raincoat you picked up to keep dry
“Do not operate while bathing” on that new set of Christmas tree lights you bought in December
People often joke that these warnings were put there because at some point, someone really thought the soap looked tasty, or they put on a raincoat to cleanup a biological pathogen, or they suddenly felt that burst of holiday spirit in the tub. The fact of the matter is that… yup… as hard as it is to believe, that’s exactly what happened. However, that’s not why the warnings are there.
The Dangers of Placing Coffee Near Your Crotch
When I was younger and still living at home, my father flew into a rage one night because some intellectually ill-equipped person went to a McDonalds drive-through and decided that the perfect place to stow their steaming cup of joe was in-between their legs. They thought this was an ideal spot because (despite the alarming proximity to their nether-regions) clearly they needed their hands to drive the car over the pothole strewn roads. Most of us know the story, but even if you didn’t, you could probably do the basic math. Pothole, meet car. Coffee, meet crotch.
There is now a warning on the coffee cups at McDonalds, and on the drive-through sign, and on the drive through-window itself. Is it because some people make questionable decisions? Absolutely not. The reason the warning is there is because while those people seem unable to deliver on the skills necessary to avoid being culled from the herd in a true display of Darwinism, they do have the ability to dial a lawyer.
The Wonders of Our Legal System
Ah yes, our legal system. When it comes to the American legal system, I’m not completely jaded. It can be a shield for those who have been marginalized, and it’s the hand that dispenses justice to the lawless. Unfortunately, like a shotgun, it can also be used by stupid people to shoot another unsuspecting hunter in the face.
Let’s face it, some lawyers (not all of them, but some) love to sue over the ridiculous. They do it because they know that an impartial system of justice has to remain just that… impartial. It can’t make value decisions on what it feels is a “worthy” lawsuit. For the most part, all matters must get equal consideration. So, like a little car at the circus that’s dispensing a seemingly impossible number of clowns, these frivolous lawsuits just keep coming. What’s worse, often times there’s a huge payout.
So, back to my Dad. He came home ranting because this particular gem of a lawsuit resulted in a multi-million dollar settlement for ‘ol coffee pants. He thought it was unnecessary and set a bad precedent and I distinctly remember him saying, “One day, they are going to sue people just for living their lives”. Prophetic words.
You Are in Violation
A client called me last week. They got a letter in the mail alerting them that they were in violation of a patent and were obligated to pay a licensing fee (per employee) if the following statements were true about their computer network:
- Do you have a scanner capable of converting files to a .PDF?
- Do you have employees that have email in the form of Exchange, Lotus, or other “internet connected” mail services? (I’m not sure what other kind there is.. but hey… let’s not start nit-picking)
- Do you have, or have you ever had, a central repository for scanned files such as a server, NAS, or backup system?
Most of us would look at that list and chuckle. There’s hardly a company left ANYWHERE that could answer "no" to those questions. However, the letter went on to inform us that a small group of lawyers own a patent on the document management process described above. Furthermore, they have recently realized (I assume they sat bolt upright in bed with an epiphany like they do on TV) that everyone everywhere was violating their patent. Of course, they didn’t say it quite like that, but that was the gist of it.
My client was really concerned. The attorneys had sent all this information via certified mail, but it really did feel like a scam. Seriously, can you get sued for just going about your daily life? My client didn’t develop any of these technologies. They didn’t steal anyone’s trade secrets. Everything they were using could be bought at a Staples, or a Best Buy. As it turned out, the attorneys did actually file a law suit in Rhode Island against my client. They provided the filing number in their letter and suggested that they would be willing to settle out of court for the nominal annual patent license fee of $1,500 per employee.
Even as I write this, I am incredulous about the whole thing. It’s a colossal waste of time. I contacted an attorney I know and we discussed this. It is a scam… it just happens to be real, and legal. It’s been happening for more years than anyone can count. Attorneys buy up old patents that were never developed, find some use case that they can argue is in violation, and then pursue a population of people that are unlikely to have their own legal teams to defend themselves. Lots of people blow them off, but enough will pay to avoid the hassle (or because they are scared of being sued) that it’s actually a multi-million dollar payday for the law firm.
Cars That Help You Go
Not so long after Henry Ford made cars a household item, there was a law suit levied on owners by an attorney claiming to hold the patent to a similar concept. However, in his version, the magic combination was a “self-propelled carriage fitted with upholstered accommodations and adequate relief facilities”. Yes… he was talking about a car toilet, and yes (I was shocked to discover this) some vehicles at the time were built with that very accommodation. The patent made no mention of combustion engines, in fact, it appears as though the idea in the patent was an unnatural cross between a stagecoach and a sailboat (it was wind powered). Still, it held enough merit that people actually did pay this guy.
Similar actions have been levied against farmers, television owners, people with central heating systems, and a host of other circumstances. My favorite was one I read about a guy who patented the idea of using a particular tool for dentistry in butcher shops. He spent the better part five years having his employees buy meat at local markets and then casually mentioning the idea to the butchers. Then, one by one, he would go back after a year and submit letters to them letting them know that if they were using such tools, they were in violation of a patent. Thankfully, this guy had no idea what he was in for and the butchers counter sued and shut him down. Headline: “Lawyer Meats with Resistance” HA! (that wasn’t a real headline, I just like to make myself laugh).
The Dark and Scary Land of Patent Law
The bottom line: these suits are starting to popup everywhere in technology. Patent law is a dark and scary land. It’s full of legal hyenas and jackals waiting to take your money. Like that place in The Lion King that the light doesn’t touch, you must never go there.
I’m not an attorney, so don’t just chuck a lawsuit notice in the trash because you read my blog post*. However, you also shouldn’t take for granted that it’s legit and pay someone. If you get such a notice, have your attorney look at it. Have a nice laugh with him or her over lunch (make the attorney pay). Then when you chuck it in the trash you don’t have to worry that it’s going to rise from the trashcan like a zombie and attack you when you least expect it.
*This blog post is not intended to treat, prevent, or cure any disease