
In foam-arrow patent fracas, Newegg swoops in to aid LARPer defendant - nkurz
http://arstechnica.com/tech-policy/2016/03/newegg-donates-10k-to-larping-org-in-foam-arrow-patent-fracas/
======
lovemenot
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
> 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.

~~~
labster
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
> 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.

------
jessaustin
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
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.

~~~
forgetsusername
> _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._

Personally, I think it's ridiculous that someone could create something
"obvious", refuse to sell it to you and _also_ restrict you from making it
yourself. The world shouldn't work that way. I hope courts agree.

~~~
wyattpeak
Right, but you're rolling two issues into one.

I agree with you on the creating something obvious part, and the patent
perhaps shouldn't have been issued (though scroll down for more discussion on
that, it's more complicated than it seems at first, and it looks like prior
art is more of a concern that obviousness - the patent is not simply for "foam
arrows").

But restrict you from making something they designed and won't sell you?

Well are you making it to sell or for personal use? Making it for personal
use, I agree, and I think it's unfortunate that the law does not.

Selling it, which is what the defendant did? No, that's the point of a patent.

------
JoshTriplett
> 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
Often NPEs are not considered trolls, such as universities.

~~~
JoshTriplett
Depends on who's doing the describing. Some university offices of "technology
licensing" do act like patent trolls.

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munchbunny
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
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?"

~~~
wyattpeak
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
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.

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api_or_ipa
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
Do you know many lawyers?

~~~
thaumasiotes
"should"

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

~~~
kevin_thibedeau
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...](http://arstechnica.com/wp-
content/uploads/2016/02/GA.Gwyther.complaint.pdf)

~~~
patcheudor
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)

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grej
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.

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cassieramen
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
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.

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EGreg
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?

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

~~~
hotcool
I'll second that. I keep getting redirected to the Canadian site.

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fapjacks
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.

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

------
monochromatic
> 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
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
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.

