Even amid the ongoing backlash against patent trolls, FindTheBest.com’s response to infringement claims by accused troll Lumen View Technology stands out from the crowd. Last year FindTheBest CEO Kevin O’Connor called patent trolls the “scum of the earth” and vowed to “slaughter” Lumen View in court, declaring, “This is war.”
O’Connor chose as his weapon the Racketeer Influenced and Corrupt Organizations Act, accusing Lumen View in a May 2013 lawsuit of trying to wheedle settlements from FindTheBest and other companies through threats and frivolous patent litigation. But FindTheBest’s RICO suit fell flat on Monday, when U.S. District Judge Denise Cote in Manhattan found insufficient evidence that Lumen View’s actions amounted to wire fraud, mail fraud or extortion.
Monday’s decision is a win for Mark Goodman and Carl Riehl of Debevoise & Plimpton, who represent the inventors of the Lumen View patent and their companies, and for Lumen View counsel Stamatios Stamoulis of Stamoulis & Weinblatt in Wilmington. Debevoise’s Goodman wasn’t immediately available to comment.
The decision affirms that bringing a lousy patent case doesn’t amount to racketeering, whether the plaintiff is a troll or not. That doesn’t mean Lumen View is necessarily in the clear, however.
Cote declined to exercise jurisdiction over FindTheBest’s related state law tort claims on Monday, but the company can refile them in California. And Lumen View may be on the hook for attorney fees in its underlying patent case, especially after the U.S. Supreme Court last month eased the burden for defendants seeking fees from adversaries in failed patent cases in Octane Fitness v. ICON Health & Fitness. In the wake of that ruling, FindTheBest counsel Joseph Leventhal of Leventhal Law in San Diego supplemented an earlier motion for attorney fees.
As Joe Mullin previously reported for Ars Technica, O’Connor’s RICO gambit was always a long shot. Luckily for FindTheBest, Lumen View’s patent claims turned out to be just as weak. Cote found the company’s “multilateral decision-making” patent invalid in November 2013, ruling that it simply took the ancient (and unpatentable) practice of matchmaking and added a computer process to the mix.
Lumen View has appealed Cote’s ruling in the patent case to the U.S. Court of Appeals for the Federal Circuit. The appeal and other Lumen View cases in Delaware have been stayed pending a decision by the Supreme Court in Alice Corporation Pty, v. CLS Bank International, which could clarify what kinds of computer-enabled inventions are too abstract for patent protection.
FindTheBest counsel Leventhal practiced at Kirkland & Ellis and Cooley before founding his San Diego firm in 2012. Leventhal declined to comment.