If you thought bogus patent lawsuits were crazy now, just wait and see what might happen if a court rules the way two companies are arguing they should. The EFF has filed an amicus brief in two cases in which patent holders are arguing that they can drag third parties into patent lawsuits if those third parties do one part of a claim, while someone else does the rest. If you think about this, and are aware of current patent lawsuits, this is a horrifying prospect. Think Lodsys on steroids, where individual consumers could be sued for patent infringement, merely for making use of what a service provider offers. For example, in one of the two cases, Akamai is claiming patent infringement, and the issue is one claim in the patent. All of the steps of that one claim are handled by a third party… except for “tagging,” which is done by users. If Akamai’s argument holds, then users of Limelight’s services who do “tagging” could be liable for patent infringement without having any idea at all that they’re at risk, and without them even violating the vast majority of what’s claimed in the patent.

While the patent holders are claiming that without this the patents would be unenforceable, the EFF filing reasonably argues that the problem is that the patents were drafted poorly, and patents should make clear that when they list out a series of steps, those steps are performed by a single party. The arguments by the patent holders would put almost everyone at risk of being directly liable for patent infringement without them realizing it. We see broad patent claims asserted against various internet companies all the time. Imagine if every user of those services could suddenly be sued for infringement as well, just because clicking on a button, adding a tag or whatever, helped “infringe” on the patent in question in combination with the service provider?

As the filing notes, there is simply no social benefit to imposing liability on such third party users. They’re hardly in a position to stop the infringement (let alone even know that it’s going on). All they’re doing is using a service that is offered to them.

Not surprisingly, one of the companies making this argument, McKesson, is using copyright law to back this fundamentally new interpretation of patent law. Specifically, McKesson cites the Supreme Court’s terrible Grokster decision on third party liability, and is trying to extend it to patent law. Of course, McKesson does not even properly cite Grokster, falsely claiming that Grokster claims “a defendant’s decision to profit from infringement ‘while declining to exercise a right to stop or limit it'” makes one liable. That’s simply not the Grokster rule at all. Grokster set out a specific set of criteria under which a third party would be liable, but “declining to exercise a right to stop or limit” is not nearly enough.

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