Taking a Page From the Patent Troll Playbook

The Harvard professor who went after a Chinese restaurant used some familiar tactics.

Photo by rez-art/Thinkstock

Slate holds a patent on the concept of noodles in a box and saw that this lo mein was listed as $1 cheaper on its website than we were charged for it. We intend to sue on both grounds under the full authority of the law.

Photo by rez-art/Thinkstock

Last week, a Harvard professor became Internet infamous for bullying a Chinese restaurant over $4. Ben Edelman found that the restaurant, Sichuan Garden, charged him more than the prices listed on the restaurant’s website. He then demanded $12 in “triple damages” based on Massachusetts consumer protection law (which he may have misunderstood). Edelman threatened that he had “referred the matter to applicable authorities” to “assure that an appropriate sanction is applied as provided by law.”

This is in large part a silly story about a Harvard professor being, well, a Harvard professor. Edelman has since apologized, and the Internet has moved on. But it occurs to me that this episode is valuable in that it explains pretty clearly what is wrong with a whole lot of intellectual property law, and particularly the problem of patent trolls.

Fundamentally, Edelman’s outlandish correspondence with Sichuan Garden boils down to three things.

  • First, he speaks from a position of apparent power. Edelman has four Harvard degrees, including a J.D. from Harvard Law; he cites Massachusetts statutes; he obliquely notes his status as an attorney.
  • Second, the recipient of this legalese browbeating obviously has no idea what’s going on or how to respond. The restaurant’s manager Ran Duan (no relation to me, as far as I know) struggles with English grammar, and yet is faced with these complex allegations of consumer protection law.
  • Third, Edelman’s purpose is not to fix a problem but rather to extract a freebie. If his real concern were consumer protection, he could easily have asked for Sichuan Garden to fix the website and give him $4. But by citing the treble damages law—which he likely isn’t even actually entitled to—he demands more than one-third of his $35 bill back.

These exact three characteristics underlie the bulk of abusive patent assertion stories today. The so-called patent troll speaks from a position of apparent power: He or she holds a granted United States patent and claims to know patent law. The recipients are often small businesses—particularly non-technology companies such as mom-and-pop restaurants—that never thought patent law was relevant to them. And the object of patent trolls’ demands is not to sell an invention or vindicate the inventor but to extract a nuisance settlement.

Only a few months ago, the Federal Trade Commission cracked down on one of the most infamous patent trolls, a shady company called MPHJ that claimed to have a patent on scanning documents and then emailing them. As part of the investigation, the FTC released demand letters that MPHJ had sent to some 16,000 companies in the high-tech industries of “Veterinary Services, Lawn and Garden Services, Building Maintenance Services, and Medical Laboratories.”

So let’s compare letters from MPHJ with emails from Ben Edelman. Both start out with an accusation of violating a legal right:

MPHJ Edelman
“We are the licensing agent for certain U.S. patents listed below. We have identified your company as one that appears to be using the patented technology, and we are contacting you to initiate discussions regarding your need for a license.” “Under Massachusetts law it turns out to be a serious violation to advertise one price and charge a different price. I urge you to cease this practice immediately.”

Both then go on to demand money, to make the accuser go away, citing legal statutes:

MPHJ Edelman
“As you can imagine, most businesses, upon being informed that they are infringing someone’s patent rights, are interested in operating lawfully and taking a license promptly. … Their doing so has allowed us to determine a fair price for a license negotiated in good faith and without the need for court action is a payment of $1,200 per employee. … [W]e are prepared to make this pricing available to you.” “In the interim, I suggest that Sichuan Garden refund me three times the amount of the overcharge. The tripling reflects the approach provided under the Massachusetts consumer protection statute, MGL 93a, wherein consumers broadly receive triple damages for certain intentional violations.”

When the threatened businesses refused to accede to those demands, both accusers use the businesses’ actions to trump up the charges:

MPHJ Edelman
“Having not heard from you, our client reasonably assumes you do have an infringing system and need a license. Accordingly, they have referred the matter to us to determine whether we may be able to work out a license with you, or whether additional steps might be required.” “To wit, your restaurant overcharged all customers who viewed the website and placed a telephone order. … You allowed the problem to continue, in your own words, ‘for quite some time.’ You don’t seem to recognize that this is a legal matter and calls for a more thoughtful and far-reaching resolution.”

Both intimated that it was time to get lawyers involved:

MPHJ Edelman
“We encourage you to retain competent patent counsel to assist you in this matter, if you have not already done so. If you have already retained patent counsel, please forward this letter to them, and have them advise us of their representation (or you may inform us directly) so that we may direct all future correspondence to them.” “Are you represented by an attorney in connection with this matter W? If so, as an attorney, I am bound by Massachusetts attorney ethics rules to communicate only with that attorney and not with you. In that case, please provide me with the name, address, and email of the attorney, and I will proceed accordingly.”

And expressed intent to bring in the big guns of the justice system:

MPHJ Edelman
“Accordingly, if we do not hear from you within two weeks from the date of this letter, our client will be forced to file a Complaint against you for patent infringement in Federal District Court where it will pursue all of the remedies and royalties to which it is entitled.” “I have already referred this matter to applicable authorities in order to attempt to compel your restaurant to identify all consumers affected and to provide refunds to all of them, or in any event to assure that an appropriate sanction is applied as provided by law.”

I have nothing against Edelman’s actual claim that the restaurant’s website should be corrected. His consumer protection law theory has some merit. (This is in contrast to patent trolls, which I more often than not find to be wrong on their legal theories of patents.) If he wanted to get the authorities on his $4 case, he is fully within his rights to do so. Those authorities would probably tell Sichuan Garden to fix its website, and that would be the end of the matter.

But a Harvard professor throwing the weight of his bar admission against a Chinese restaurant over a $4 mistake? That’s just an embarrassment. I’m embarrassed for Edelman for being the kind of person who would use his stature and knowledge to bully a little guy. I’m embarrassed as a lawyer when people misuse the law for its threat value rather than for justice.

And patent trolls are, for me, this embarrassment writ large across the face of the whole nation. Sure, if a legitimate patent is legitimately infringed, then by all means the inventor should receive a reward. But that does not make it right to use a patent as a hammer of glass, threatening only for its size though it would shatter upon impact.

Unfortunately, there is one difference between what Ben Edelman did and what patent trolls continue to do: Edelman’s dispute was over $4 (or $12). Patent trolls do somewhat more damage to the economy—$29 billion by one estimate. We can be satisfied with the former flap being resigned to a brief curiosity, but patent abuse is a serious problem deserving of careful attention by lawmakers.

This article is part of Future Tense, a collaboration among Arizona State University, New America, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, visit the Future Tense blog and the Future Tense home page. You can also follow us on Twitter.