NH Judge rules ‘patent troll’ not ‘necessarily pejorative’

By Gene Quinn
April 13, 2018

NH Judge rules 'patent troll' not 'necessarily pejorative'On March 19, 2018, New Hampshire Superior Court Judge Brian T. Tucker granted a motion to dismiss in a defamation case. The case was brought by David Barcelou and his company Automated Transactions, LLC, against a series of defendants that had made derogatory statements about Barcelou and his company. Repeatedly, the defendants, which included the American Bankers Association and the Credit Union National Association, called Barcelou a “patent troll”.

In a breathtakingly disingenuous passage from the decision, Judge Tucker finds that not all definitions of patent trolls are “necessarily pejorative.” Such a statement either demonstrates a level of ignorance that is almost unfathomable, or a level of intellectual dishonesty that is simply unbecoming a judge.

Are we really to believe Judge Tucker thinks the term “patent troll” is a loving and endearing term spoken with great admiration for inventors who spend tremendous amounts of time, money and energy seeking patents on their inventions?

As proof that not all uses of the term “patent troll” are pejorative, Tucker cites a law review article that explains patent trolls play a function as intermediaries specializing in litigation, a role that is not in and of itself a bad thing. So a passage in an article that defends the role played by those maligned as patent trolls somehow becomes evidence that the term is not defamatory?

The reality is the term patent troll has been intentionally used in a derisive manner to belittle patent owners and manipulate decision makers on every level for over a decade. Large corporate entities that steal patent property rather than pay fair and reasonable rates to use the property have colluded to convince the public, press, Judiciary and Congress that inventors and patents are evil with a false narrative about patent owners. They use false “facts” to support a false narrative (see here and here), which have been debunked over and over again (see here and here). Even President Obama’s Federal Trade Commission, which set out to condemn patent owners, ultimately concluded it is unhelpful to call patent owners patent trolls because it fuels a false narrative that fails to take into account the underlying business model of patent owners.

So, Judge Tucker is wrong. The term patent troll is pejorative. There can be no serious or credible debate to the contrary.

But there are other problems with this decision as well.

Judge Tucker cites as an example the word “scam”, which can’t possibly be defamatory. Oh really? Perhaps the judge needs better law clerks, more nuance with his explanations, or some knowledge of the Invention Promotion industry. Clearly, the word “scam” can be and has been found to be defamatory, and having been involved in litigation over the term “scam” I can say that with absolute certainty. So when Judge Tucker uses that as an example as to why the term patent troll can’t possibly be defamatory one has to very question whether he took this complaint seriously, or whether he was just looking for reasons to dismiss the case.

Another big problem is that the facts as asserted in the complaint are supposed to be taken as true and viewed in a light most favorable to the plaintiff. Judge Tucker goes to great lengths to say that he is doing just that, but if you really read the decision it becomes clear that is not what he did. In fact, at critical points he did the exact opposite.

Judge Tucker points to places where the plaintiff did not disagree with factual statements made by the defendants and props them up to create the impression that there is simply nothing to debate. Everything the defendants said was an opinion, Tucker writes over and over again. But read closer and you notice that Judge Tucker also dismisses various factual assertions as being “readily understood as hyperbole and not a statement of fact.” Well, Judge Tucker, that is not taking those factual assertions in a light most favorable to the plaintiff. That is taking those factually assertions in a light most favorable to the defendant and acting as a fact finder and determining what is, and what is not, credibly a fact on a motion to dismiss. That is simply inappropriate.

But the biggest and most concerning aspect of this defamation decision is that there is absolutely no appreciation for the fact that there is a disparate power scenario at play, which is absolutely fundamental to any defamation action.

In defamation actions it is well known black letter law that those that are public figures have a very heavy burden to demonstrate defamation, and must do so by demonstrating actual malice. If you are not a public figure you do not have to demonstrate actual malice, and instead have a lesser standard that must be achieved. In a nutshell, public figures on various levels either have a platform or seek the limelight.

Here several of the largest national banking organizations in the country, and several of the largest law firms in New England were defendants because they were claiming David Barcelou, an inventor, is a patent troll. What exactly has Barcelou done to become a public figure? In 2018, does an individual seeking redress for someone stealing their patent property make them someone on equal footing with large national banking associations and regional law firms? We don’t know because it wasn’t discussed.

To put this in terms that everyone ought to understand, it is one thing if Google were to call Qualcomm a patent troll, but quite another if Google with all their power and might went after an inventor in a campaign to malign the inventor in the same way these defendants went after Barcelou.

So here, where these law firms and national banking associations engage in a coordinated campaign to malign an inventor using the clearly pejorative term patent troll, that — in my opinion — should be relevant. Sadly, it wasn’t.

More to follow on this case! Stay tuned!

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 17 Comments comments.

  1. Bemused April 13, 2018 3:12 pm

    New Hampshire Superior Court Judge Brian T. Tucker is a tool. I’m certain that I could reasonably argue that not all definitions of “tool” are “necessarily pejorative.” But I have a better argument than that: An absolute defense to defamation is the truth.

  2. Ternary April 13, 2018 8:59 pm

    From Investopedia:
    What is a ‘Patent Troll’
    A patent troll is a derogatory term used to describe the use of patent infringement claims to win court judgments for profit or to stifle competition.

    This probably concurs with how much of us have seen the term “patent troll” used. I have never heard the term used “lovingly.” Like: he is a fantastic patent troll.

    The fact is that Mr. Barcelou could have been called any other non-derogatory term. Fact is that Mr. Barcelou did and invention, obtained a patent, and has asserted his patent. Mr. Barcelou should have been called an inventor who asserts his legally obtained and issued patents.

    The descriptions of the plaintiffs’ conduct as a “shakedown,” “extortion,” or “blackmail” and of being a “patent troll” are, according to the court, all are non-actionable statements of opinion. Well, USPTO Director Andrei Iancu has quite a struggle ahead of him to convince the public and the courts that patents and more importantly, efforts by independent inventors, are worth anything.

  3. Joachim Martillo April 14, 2018 3:50 am

    When is the word troll (n) not pejorative?

    I can only think of one case: the movie Trolls.

    Trolls

    In Massachusetts one can bring a complaint for libel per se, but unless one can demonstrate some actual harm or tort, the defendant will probably respond with a demurrer.

    On the other hand, it can be libel to state truth in certain cases if the audience is inappropriate.

    Massachusetts judges tend to dismiss libel complaints when the parties are oponents in a litigation, or there are threats of litigation.

  4. Joachim Martillo April 14, 2018 3:55 am

    Here is a movie trailer where the meaning of troll is definitely pejorative even though the trolls turn out to be good guys.

    Boxtrolls

    The Boxtrolls are described as inventors.

  5. Joachim Martillo April 14, 2018 4:08 am

    Here is the source movie for the Harry Potter novels.

    Troll

    The trolls here are definitely the bad guys.

  6. Joachim Martillo April 14, 2018 4:10 am

    From Lord of the Rings: Cave trolls are not warm and cuddly.

  7. Joachim Martillo April 14, 2018 4:20 am

    Something for gamers — a good but scary troll in

    Troll and I.

  8. Joachim Martillo April 14, 2018 4:28 am

    In theory Massachusetts continues to have the common law criminal libel offense, which refers to libel causing “breach of peace.”

    I might try to make a case that a libelous patent troll accusation is being used to undermine the political economic social structure of the USA, but I would not expect to get very far.

  9. Uhh April 14, 2018 7:07 am

    I was wondering what happened with this case. Unbelievable.

    Judge Tucker is obviously trolling Barcelou.

  10. Gene Quinn April 14, 2018 12:19 pm

    Joachim @3 et seq.

    Your question about where the word “troll” is ever used in a way that is not pejorative is an excellent question. I think this deserves more treatment. Perhaps we should publish a list of all the places we can find where the word “troll” has bee used in popular culture and see. My guess is the troll is always the bad guy.

    Wasn’t that the entire point of the first Shrek movie? In that movie they called him an Ogre, but isn’t there also reference to trolls too?

  11. Benny April 14, 2018 12:29 pm

    Gene,
    Trolling is also a method of fishing. Troll fishermen aren’t bad guys.
    Irrelevant fact.

  12. Ian Harvey April 14, 2018 2:32 pm

    Well said Gene on the issue of trolls. I used to be the CEO of BTG plc, which patented and licensed most of the inventions coming from UK universities and government research. Our commercialized inventions included the cephalosporin antibiotics (then half the world’s antibiotic market), MRI (Nobel prize winner and 100% of the world market), pyrethrin insectides (1/3rd of the world market) and many, many others. In almost all cases we would not have got companies to invest in their development without very strong patents. But we (like any university), could not do that ourselves – we had neither the expertise or the funds. We were then the world’s largest (by revenues) non-practising entity – in today’s words a patent troll. Yes, we had to sue infringers. And yes, without the ability to sue (and usually win) against infringers, those taking the early risk to develop these technologies would not have done so. It’s a shame that the perjorative ‘troll’ is used to describe anyone who does not themselves manufacture the patented product.

  13. Don Quixote April 14, 2018 4:22 pm

    This provides an excellent exhibit of just how poorly, and narrowly, educated are some of our judges. They are just dumb enough to be obedient.

    Once again, note the defendants: “American Bankers Association.” High finance (including, demonstrably, the Fed) is at the very center of the lobbying effort to neuter patent law so as to serve only those in power. Blaming this trend of corruption on certain powerful industrial sectors is not getting to the core of this issue.
    Same as it ever was.

  14. Anon April 14, 2018 11:03 pm

    Paging through the decision, I am left with the distinct notion that there does not exist a single “name” that one can call someone else and be hailed before this judge under the charge of defamation.

    The “logic” used herein is applicable to “ANY” epithet.

  15. Joachim Martillo April 16, 2018 9:52 am

    Here is a recent NH complaint for libel (defamation per se).

    https://www.courthousenews.com/wp-content/uploads/2017/10/Original-Billboard-Defamation-Complaint.pdf

    The plaintiffs won $274.5 million.

  16. Gene Quinn April 16, 2018 11:51 am

    Joachim-

    We are aware of that case, and it is our understanding that same Judge in this case was the one who presided over that NH record ruling. NH only operates pursuant to snail mail, with no records kept electronically. So we’ve made a request for the ruling in the case. We will continue to follow.

  17. Ned April 17, 2018 3:11 pm

    So, when is it ok to use the term “patent troll?”

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