https://archive.org/details/LegalGeekEp104
The EFF is a powerful non-profit organization that has defended the rights of privacy and free expression online for nearly three decades. In many top copyright law disputes, especially those involving definitions of the scope of fair use, the EFF is often involved and usually on the side of expanding fair use, or curtailing copyright protections. The EFF is also critical of patents, especially so-called patent trolls who enforce overly broad patents against big money defendants.
In 2014 the EFF began awarding a Stupid Patent of the Month award, for just these types of patents. In June of last year, the award winner was Australian company GEMSA, who was trying to enforce against many parties a U.S. patent claiming exclusive rights for the online use of a virtual cabinet to illustrate data storage. In short, GEMSA was invading America like other Australians of the past...(land down under)
The EFF claimed that GEMSA basically argued it had the right to sue anybody who runs a website, and that such a result was unconscionable. GEMSA didn't take kindly to that, and they filed suit in Australia and obtained a court order from the Supreme Court of South Australia by alleging that the EFF article was filled with misleading and deceptive statements. If this sounds like a libel suit in the U.S., you've got the right idea.
However, Australia is one of many countries that has a low bar for proving defamation type claims and therefore is more restrictive of free speech than the U.S. Thus, the court ordered the EFF to take down the article and refrain from commenting any more on GEMSA under threat of imprisonment in Australia.
Of course, the EFF sits in the U.S., land of the free speech and home of the brave litigants. So the EFF filed suit last month in U.S. Federal Court, seeking a protective order against the Australian court's decree, calling such repugnant to the U.S. constitution and the rights of free speech. Under U.S. law, critical speech like the Stupid Patent award is typically protected expression, unless it crosses the narrow lines defining libel. Without truly false statements, the EFF almost certainly wins under the U.S. standard. That will make any judgment against the EFF unenforceable in America, even if it would be enforceable in Australia.
The Bottom Line is, this squabble over bad patents and free speech reveals the very distinctive laws and standards applied when doing business worldwide in many countries. Even though the result is likely two home-cooked court orders favoring the local business or organization over the foreign entity, the fact that we have this conflict at all reveals the unique constitutional protections we enjoy in America, a core tenant of why the EFF exists in the first place. Likewise, it also shows how tough the Patent Office's job is, as it tries to reach fair conclusions of what should be granted a patent monopoly while Applicants rightfully seek the broadest protection they can get.
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