Two weeks ago in Court Rulings Show Abusive Patent Litigators Can Be Beaten (But Is It Worth The Cost?), WLF’s Glenn Lammi noted the determination of one patent litigation defendant, FindTheBest.com, to oppose an infringement suit filed by patent assertion entity Lumen View Technology. The company’s CEO, who we have since learned was a co-founder of advertising company DoubleClick, pledged to spend $1 million to fight the suit.
It seems that FindTheBest will spend some of that money playing offense, not defense. On September 16, the company filed a complaint against Lumen View Technology alleging civil violations of the Racketeering Influenced and Corrupt Organizations Act, better known as RICO. The facts alleged in the complaint, which include references to Lumen’s “license or else” demand letter, will likely look familiar to targets of such litigation, but will be quite eye-opening to everyone else. The letter promised “full-scale litigation” and “all motion practice as well as protracted discovery” (our emphasis) if FindTheBest didn’t pay the licensing fee. The letter went on to illuminate the “protracted discovery” pressure point, emphasizing the disruption and potential embarrassment that could result from Lumen’s digging through FindTheBest’s electronic documents.
FindTheBest also alleges that Lumen’s attorney told FindTheBest’s attorney that FindTheBest could be prosecuted for a “hate crime” because its CEO used a popular slang term for patent assertion entity when referring to a co-inventor of the patent Lumen holds.
As a Washington Post blog post pointed out, this is not the first time a patent litigation target has sued its tormentors under RICO. Cisco filed a similar action against an entity asserting infringement of a Wi-Fi related patent, but a federal court dismissed the RICO claims in January.