8 ms·

In foam-arrow patent fracas, Newegg swoops in to aid LARPer defendant

205 points by nkurz 11y ago

munchbunny 11y ago
Something about this whole saga makes me think that both the underlying problem and the game of legal chicken could have been avoided if Global Archery just asked nicely in the first place. Unless of course it was hoping to drive the guy out of business, in which case, it's awesome that Newegg is helping out, because the courts should not be a tool for running fair competitors out of business.
- Mtinie 11y ago
  All Global Archery had to do was call up and say: "Hey, we see that you're reselling for one of our competitors. Do you think you and your customers be willing to switch to our product for {X} price?"
  - duncan_bayne 11y ago
    Those who can, do. Those who can't, sue.
  - wyattpeak 11y ago
    I mean hold up a minute, do we know that they didn't? This article, two-line update aside, is extraordinarily one-sided. They don't seem to have reached out to the other party at all.
    - jessaustin 11y ago
      You read about the franchising crap in the other thread, have you forgotten? Their own FAQ states clearly that they would never sell foam arrows to a distributor like the LARPer.
api_or_ipa 11y ago
Spending $150,000 to stop $2k/month of volume from being sold at any rate of sales cannabilisation is foolish business. Their intention was to send a message. Any lawyer stooping this low should be ashamed of their actions.
- dipnuggetron 11y ago
  Do you know many lawyers?
  - thaumasiotes 11y ago
    "should"
zhaeon 11y ago
It would be nice if Newegg sold these shirts on their Canadian site as well.
- hotcool 11y ago
  I'll second that. I keep getting redirected to the Canadian site.
JoshTriplett 11y ago
> Global is asserting questionable IP rights aggressively and counting on the high cost of defensive litigation to win, so we consider it a troll Glad to see this high-profile acknowledgement that "patent troll" doesn't exclusively mean "non-practicing entity".
- fleitz 11y ago
  Often NPEs are not considered trolls, such as universities.
  - JoshTriplett 11y ago
    Depends on who's doing the describing. Some university offices of "technology licensing" do act like patent trolls.
  - Natanael_L 11y ago
    ARM is a good example, they don't really manufacture any hardware. They license out rights to develop and sell hardware using their base designs. But they're a rare species...
- monochromatic 11y ago
  > Glad to see this high-profile acknowledgement that "patent troll" doesn't exclusively mean "non-practicing entity". Except that's exactly what it means (unless it means less than that--excluding universities and the like).
  - JoshTriplett 11y ago
    That might be how you're choosing to use it, but I've seen widespread usage of "patent troll" to mean anyone abusing patents in a variety of ways, whether they make a product or not. So it depends on who's doing the describing. In this case, Newegg's attorney concisely described another type of patent troll.
    - monochromatic 11y ago
cassieramen 11y ago
Why don't other distributors contribute? His gofundme says this could set a precedent for them to be sued. Seems worth their time and money to be sure this goes away now. https://www.gofundme.com/savelarparchery https://www.gofundme.com/savelarparchery
- gnicholas 11y ago
  It might be wise for distributors to kick in some cash, but Gwyther uses the term "precedent" overbroadly in his gofundme video. If he were to settle, there would be no precedent set. And even if he went to trial and lost, other District Courts would not be bound by the determination in the Gwyther case. This would only be considered as "persuasive precedent", which courts ignore all the time (see, e.g., every circuit split ever). To be clear, I agree completely that they should band together to nip this in the bud. But this is only for practical reasons—not legal ones.
lovemenot 11y ago
The fun and games in this move by Newegg - imagery and language are hilarious - mask their serious intent. Newegg seems to be switching to offence and has carefully chosen its moment. The heartfelt video, the relatively small sums, demonstrably trollish behaviour from the counterparty, a clear underdog, building a movement of "geeks" are indicators of eventual success. Not just in this case, but in raising awareness towards political action. Newegg, won't mind if the troll backs down now. It sends a clear message to other trolls that a white knight is possible, which can generate adverse publicity as well as legal cost. In a sense, they are using the trolls' own playbook against them. Nice strategy.
- JoshTriplett 11y ago
  > Newegg seems to be switching to offence and has carefully chosen its moment. This isn't offense; offense in patents would be asserting Newegg's own patents against others. This is defense, just defense of others.
  - ryanpetrich 11y ago
    It's defence in a war of patents, but offence in a war against patents.
  - labster 11y ago
    It's a defensive tactic but an offensive strategy. No, not that kind of offensive. I gave the larping.org guy $10 for legal fees, even though LARPers are strange folk unlike us normal, sane tabletop RPG players.
    - mreiland 11y ago
      > No, not that kind of offensive. I gave the larping.org guy $10 for legal fees, even though LARPers are strange folk unlike us normal, sane tabletop RPG players. Ok, I laughed. It's kind of true though, I'm always reminded of this video: https://www.youtube.com/watch?v=KZ04mfAY2BU https://www.youtube.com/watch?v=KZ04mfAY2BU I had a roommate that was into melee, where they'd all get together and make fake weapons and then fight. They had a point system and everything, it was interesting to watch.
kevin_thibedeau 11y ago
Such is the state of journalism that we know more about some t-shirts than details of the patents in question.
- kevin_thibedeau 11y ago
  Found it [1]. Looks like the patents are somewhat original. '413 has a removable foam tip secured with barbs and '159 is similar with an overmolded tip. Might be tricky to come up with prior art on those. The trademark violation looks legit too. AdWords were being used with their trademark as a keyword. Don't see how this company is trolling other than the ridiculous gag order. [1] http://arstechnica.com/wp-content/uploads/2016/02/GA.Gwyther.complaint.pdf http://arstechnica.com/wp-content/uploads/2016/02/GA.Gwyther...
  - DanBC 11y ago
    Here's the HN discussionn from that earlier submission. https://news.ycombinator.com/item?id=11144437 https://news.ycombinator.com/item?id=11144437
  - patcheudor 11y ago
    The patents in question are from 2011 and on: Publication number US8449413 B1 Publication type Grant Application number US 13/311,641 Publication date May 28, 2013 Priority date Dec 6, 2011 Publication number US8932159 B2 Publication type Grant Application number US 13/871,537 Publication date Jan 13, 2015 Filing date Apr 26, 2013 Priority date Apr 26, 2013 It looks like iDV, where this dude buy's his arrows to resell falls under prior art as their stuff is shown in YouTube videos as far back as at least 2010: https://www.youtube.com/watch?v=KVdHnANZ2o0 https://www.youtube.com/watch?v=KVdHnANZ2o0
  - URSpider94 11y ago
    Using other people's trademarks as keywords in Adwords bidding is not a trademark violation, it's standard practice. It's totally legit to use someone else's trademarks in advertising your product, as long as you are not claiming that you are selling under that trademark. Just think about the classic soda taste test ads - "Coke tastes better than Pepsi".
monochromatic 11y ago
> Cheng says that while Global Archery is an operating company, it still meets his criteria for being a patent troll. > "Global is asserting questionable IP rights aggressively and counting on the high cost of defensive litigation to win, so we consider it a troll," Cheng said. "Newegg hates trolls—they bully the weak, they hurt consumers, they hurt America, and they just suck." Yeah, no. Nobody really considers a company that is actually making the products its IP covers a troll. You're just throwing that word around because of its negative connotations, and trying to redefine it.
- chipotle_coyote 11y ago
  Your dismissal seems to elide the word questionable. Back in the dark ages of computing, AT&T had a patent on the concept of "backing store" for windows, that is, the notion that if you had a GUI with two overlapping windows, you could save the state of the window underneath the other one rather than having to redraw the entire window when the top window moves or is closed. This is an extremely questionable patent; AT&T didn't even invent this -- Lisp machines did that, too, but they didn't try to patent it because it's blindingly obvious. AT&T should never have been granted this patent, and their engineers had to know it. I would argue that "patent troll," although the term didn't exist back then, absolutely applies here, regardless of whether AT&T happened to be shipping their own system that used a backing store. Maybe your personal definition of "patent troll" requires the troll to be an NPE, but an awful lot of people would consider Wikipedia's definition to be more on point than yours: "a patent troll is a person or company that attempts to enforce patent rights against accused infringers far beyond the patent's actual value or contribution to the prior art."
  - monochromatic 11y ago
    I'm gonna tell you a secret. Every patent claim is questionable. That's why in almost every infringement litigation, validity and enforceability are at issue.
grej 11y ago
Newegg has definitely earned a customer in me from their work! I'm going to buy from Newegg to support them even if what I'm ordering is a little more than what I could find it for on another site.
jessaustin 11y ago
Clicking around [0], one finds that Global's business isn't even really based on selling foam arrows. No, they sell franchises to "Archery Tag® Licensees", to whom they then sell foam arrows. Then we learn: "We do not guarantee regions, cities, or areas for our Licensees. We believe that having more Licensees in one area brings a larger brand awareness for Archery Tag®." What a fucking scam. No wonder they're patent trolls. They already make a living screwing over their franchisees, why not try to screw over everyone else too? [0] http://archerytag.com/faqs http://archerytag.com/faqs
- wyattpeak 11y ago
  I never thought I'd find myself defending a plaintiff in a patent lawsuit, but some of HN has really gone off the deep end with this anti-patent nonsense. This is a company who are defending their legally granted competitive advantage in a field in which they actually compete. I don't know that I consider a foam arrow sufficiently non-obvious to patent, but that's neither here nor there. Not only is this not troll-like, this is precisely the sort of situation for which patents were designed. Someone comes up with an idea; thinks, "huh, this idea would be easy to steal"; and applies for protection against it being stolen. A patent does not have to be on a final good or service, and owning a patent does not oblige you to sell a product to anyone who asks. If you have a patent on industrial machinery to protect your own production chain, you're not required to build one for anyone who is willing to put up the cash for it. It is nevertheless reasonable for you to sue someone who copies it - "they won't sell it to me" is not a defence against patent infringement. To draw a rather apt analogy - there is a laser tag company in my parts (basically you run around in a darkened room shooting each other with guns that fire a little IR laser) - they don't sell their equipment to anyone who asks - it's a competitive advantage for their venues. I don't know whether or not they have patents, but I don't see how you could reasonably argue that they shouldn't have them if they designed the equipment, or that they should be required to provide that equipment to others. If they were required to do that, what would be the point of the patent? And just to save accusations of cherry-picking, I agree with you about the non-guaranteed region rah rah, but it's rather beside the point.
  - jessaustin 11y ago
EGreg 11y ago
I like NewEgg's crusade against patent trolls, but this particular battle feels particularly off base. It's not just that the patent "troll" is not in an slightly unrelated business. It's that they're an operating company with a patent on a product whose business being undercut by someone else selling the same product. And this is the first patent suit they've asserted, and they've done it against one particular person, who is selling to their customers. I'm not a huge fan of patents, but will they win?
exabrial 11y ago
I know we all love Amazon prime, but I buy from Newegg whenever possible. Greatest PR campaign ever.
fapjacks 11y ago
If you like what Newegg is doing... Buy from Newegg! You might save a few dollars with Amazon, but you'll save a lot more than that buying from Newegg.
WizardlySquid 11y ago
When will this dumb hair meme die?

205 points by nkurz 11y ago

Something about this whole saga makes me think that both the underlying problem and the game of legal chicken could have been avoided if Global Archery just asked nicely in the first place. Unless of course it was hoping to drive the guy out of business, in which case, it's awesome that Newegg is helping out, because the courts should not be a tool for running fair competitors out of business.

Mtinie 11y ago
All Global Archery had to do was call up and say: "Hey, we see that you're reselling for one of our competitors. Do you think you and your customers be willing to switch to our product for {X} price?"
- duncan_bayne 11y ago
  Those who can, do. Those who can't, sue.
- wyattpeak 11y ago
  I mean hold up a minute, do we know that they didn't? This article, two-line update aside, is extraordinarily one-sided. They don't seem to have reached out to the other party at all.
  - jessaustin 11y ago
    You read about the franchising crap in the other thread, have you forgotten? Their own FAQ states clearly that they would never sell foam arrows to a distributor like the LARPer.

api_or_ipa 11y ago

Spending $150,000 to stop $2k/month of volume from being sold at any rate of sales cannabilisation is foolish business. Their intention was to send a message. Any lawyer stooping this low should be ashamed of their actions.

dipnuggetron 11y ago
Do you know many lawyers?
- thaumasiotes 11y ago
  "should"

zhaeon 11y ago

It would be nice if Newegg sold these shirts on their Canadian site as well.

hotcool 11y ago
I'll second that. I keep getting redirected to the Canadian site.

JoshTriplett 11y ago

> Global is asserting questionable IP rights aggressively and counting on the high cost of defensive litigation to win, so we consider it a troll Glad to see this high-profile acknowledgement that "patent troll" doesn't exclusively mean "non-practicing entity".

fleitz 11y ago
Often NPEs are not considered trolls, such as universities.
- JoshTriplett 11y ago
  Depends on who's doing the describing. Some university offices of "technology licensing" do act like patent trolls.
- Natanael_L 11y ago
  ARM is a good example, they don't really manufacture any hardware. They license out rights to develop and sell hardware using their base designs. But they're a rare species...
monochromatic 11y ago
> Glad to see this high-profile acknowledgement that "patent troll" doesn't exclusively mean "non-practicing entity". Except that's exactly what it means (unless it means less than that--excluding universities and the like).
- JoshTriplett 11y ago
  That might be how you're choosing to use it, but I've seen widespread usage of "patent troll" to mean anyone abusing patents in a variety of ways, whether they make a product or not. So it depends on who's doing the describing. In this case, Newegg's attorney concisely described another type of patent troll.
  - monochromatic 11y ago

cassieramen 11y ago

Why don't other distributors contribute? His gofundme says this could set a precedent for them to be sued. Seems worth their time and money to be sure this goes away now. https://www.gofundme.com/savelarparchery https://www.gofundme.com/savelarparchery

gnicholas 11y ago
It might be wise for distributors to kick in some cash, but Gwyther uses the term "precedent" overbroadly in his gofundme video. If he were to settle, there would be no precedent set. And even if he went to trial and lost, other District Courts would not be bound by the determination in the Gwyther case. This would only be considered as "persuasive precedent", which courts ignore all the time (see, e.g., every circuit split ever). To be clear, I agree completely that they should band together to nip this in the bud. But this is only for practical reasons—not legal ones.

lovemenot 11y ago

The fun and games in this move by Newegg - imagery and language are hilarious - mask their serious intent. Newegg seems to be switching to offence and has carefully chosen its moment. The heartfelt video, the relatively small sums, demonstrably trollish behaviour from the counterparty, a clear underdog, building a movement of "geeks" are indicators of eventual success. Not just in this case, but in raising awareness towards political action. Newegg, won't mind if the troll backs down now. It sends a clear message to other trolls that a white knight is possible, which can generate adverse publicity as well as legal cost. In a sense, they are using the trolls' own playbook against them. Nice strategy.

JoshTriplett 11y ago
> Newegg seems to be switching to offence and has carefully chosen its moment. This isn't offense; offense in patents would be asserting Newegg's own patents against others. This is defense, just defense of others.
- ryanpetrich 11y ago
  It's defence in a war of patents, but offence in a war against patents.
- labster 11y ago
  It's a defensive tactic but an offensive strategy. No, not that kind of offensive. I gave the larping.org guy $10 for legal fees, even though LARPers are strange folk unlike us normal, sane tabletop RPG players.
  - mreiland 11y ago
    > No, not that kind of offensive. I gave the larping.org guy $10 for legal fees, even though LARPers are strange folk unlike us normal, sane tabletop RPG players. Ok, I laughed. It's kind of true though, I'm always reminded of this video: https://www.youtube.com/watch?v=KZ04mfAY2BU https://www.youtube.com/watch?v=KZ04mfAY2BU I had a roommate that was into melee, where they'd all get together and make fake weapons and then fight. They had a point system and everything, it was interesting to watch.

kevin_thibedeau 11y ago

Such is the state of journalism that we know more about some t-shirts than details of the patents in question.

kevin_thibedeau 11y ago
Found it [1]. Looks like the patents are somewhat original. '413 has a removable foam tip secured with barbs and '159 is similar with an overmolded tip. Might be tricky to come up with prior art on those. The trademark violation looks legit too. AdWords were being used with their trademark as a keyword. Don't see how this company is trolling other than the ridiculous gag order. [1] http://arstechnica.com/wp-content/uploads/2016/02/GA.Gwyther.complaint.pdf http://arstechnica.com/wp-content/uploads/2016/02/GA.Gwyther...
- DanBC 11y ago
  Here's the HN discussionn from that earlier submission. https://news.ycombinator.com/item?id=11144437 https://news.ycombinator.com/item?id=11144437
- patcheudor 11y ago
  The patents in question are from 2011 and on: Publication number US8449413 B1 Publication type Grant Application number US 13/311,641 Publication date May 28, 2013 Priority date Dec 6, 2011 Publication number US8932159 B2 Publication type Grant Application number US 13/871,537 Publication date Jan 13, 2015 Filing date Apr 26, 2013 Priority date Apr 26, 2013 It looks like iDV, where this dude buy's his arrows to resell falls under prior art as their stuff is shown in YouTube videos as far back as at least 2010: https://www.youtube.com/watch?v=KVdHnANZ2o0 https://www.youtube.com/watch?v=KVdHnANZ2o0
- URSpider94 11y ago
  Using other people's trademarks as keywords in Adwords bidding is not a trademark violation, it's standard practice. It's totally legit to use someone else's trademarks in advertising your product, as long as you are not claiming that you are selling under that trademark. Just think about the classic soda taste test ads - "Coke tastes better than Pepsi".

monochromatic 11y ago

> Cheng says that while Global Archery is an operating company, it still meets his criteria for being a patent troll. > "Global is asserting questionable IP rights aggressively and counting on the high cost of defensive litigation to win, so we consider it a troll," Cheng said. "Newegg hates trolls—they bully the weak, they hurt consumers, they hurt America, and they just suck." Yeah, no. Nobody really considers a company that is actually making the products its IP covers a troll. You're just throwing that word around because of its negative connotations, and trying to redefine it.

chipotle_coyote 11y ago
Your dismissal seems to elide the word questionable. Back in the dark ages of computing, AT&T had a patent on the concept of "backing store" for windows, that is, the notion that if you had a GUI with two overlapping windows, you could save the state of the window underneath the other one rather than having to redraw the entire window when the top window moves or is closed. This is an extremely questionable patent; AT&T didn't even invent this -- Lisp machines did that, too, but they didn't try to patent it because it's blindingly obvious. AT&T should never have been granted this patent, and their engineers had to know it. I would argue that "patent troll," although the term didn't exist back then, absolutely applies here, regardless of whether AT&T happened to be shipping their own system that used a backing store. Maybe your personal definition of "patent troll" requires the troll to be an NPE, but an awful lot of people would consider Wikipedia's definition to be more on point than yours: "a patent troll is a person or company that attempts to enforce patent rights against accused infringers far beyond the patent's actual value or contribution to the prior art."
- monochromatic 11y ago
  I'm gonna tell you a secret. Every patent claim is questionable. That's why in almost every infringement litigation, validity and enforceability are at issue.

grej 11y ago

Newegg has definitely earned a customer in me from their work! I'm going to buy from Newegg to support them even if what I'm ordering is a little more than what I could find it for on another site.

jessaustin 11y ago

Clicking around [0], one finds that Global's business isn't even really based on selling foam arrows. No, they sell franchises to "Archery Tag® Licensees", to whom they then sell foam arrows. Then we learn: "We do not guarantee regions, cities, or areas for our Licensees. We believe that having more Licensees in one area brings a larger brand awareness for Archery Tag®." What a fucking scam. No wonder they're patent trolls. They already make a living screwing over their franchisees, why not try to screw over everyone else too? [0] http://archerytag.com/faqs http://archerytag.com/faqs

wyattpeak 11y ago
I never thought I'd find myself defending a plaintiff in a patent lawsuit, but some of HN has really gone off the deep end with this anti-patent nonsense. This is a company who are defending their legally granted competitive advantage in a field in which they actually compete. I don't know that I consider a foam arrow sufficiently non-obvious to patent, but that's neither here nor there. Not only is this not troll-like, this is precisely the sort of situation for which patents were designed. Someone comes up with an idea; thinks, "huh, this idea would be easy to steal"; and applies for protection against it being stolen. A patent does not have to be on a final good or service, and owning a patent does not oblige you to sell a product to anyone who asks. If you have a patent on industrial machinery to protect your own production chain, you're not required to build one for anyone who is willing to put up the cash for it. It is nevertheless reasonable for you to sue someone who copies it - "they won't sell it to me" is not a defence against patent infringement. To draw a rather apt analogy - there is a laser tag company in my parts (basically you run around in a darkened room shooting each other with guns that fire a little IR laser) - they don't sell their equipment to anyone who asks - it's a competitive advantage for their venues. I don't know whether or not they have patents, but I don't see how you could reasonably argue that they shouldn't have them if they designed the equipment, or that they should be required to provide that equipment to others. If they were required to do that, what would be the point of the patent? And just to save accusations of cherry-picking, I agree with you about the non-guaranteed region rah rah, but it's rather beside the point.
- jessaustin 11y ago

EGreg 11y ago

I like NewEgg's crusade against patent trolls, but this particular battle feels particularly off base. It's not just that the patent "troll" is not in an slightly unrelated business. It's that they're an operating company with a patent on a product whose business being undercut by someone else selling the same product. And this is the first patent suit they've asserted, and they've done it against one particular person, who is selling to their customers. I'm not a huge fan of patents, but will they win?

exabrial 11y ago

I know we all love Amazon prime, but I buy from Newegg whenever possible. Greatest PR campaign ever.

fapjacks 11y ago

If you like what Newegg is doing... Buy from Newegg! You might save a few dollars with Amazon, but you'll save a lot more than that buying from Newegg.

WizardlySquid 11y ago

When will this dumb hair meme die?