Scott Harris is an attorney who was ousted from law firm Fish & Richardson when his patent was used to sue firm client Google; Raymond Niro is the well-known patent plaintiffs' attorney who represents Harris. Both Harris' lawsuit against his former employer, and the firm's counterclaims against Harris, are ongoing.
Ray Niro doesn't like the term "patent troll," and has taken umbrage when that pejorative is used against his clients. It's not unusual for patent enforcers to ask judges to ban that term from court (as Rambus did recently.) Indeed, it's increasingly common for courts to police the use of "hot button" words generally.
Now we learn Niro doesn't care for the term "shell entities" either; court documents filed last month lay out his novel attempt to re-align the patent patois.
"The continual reference to our clients as 'shell entities' is offensive and we want it stopped immediately," Niro wrote to Fish & Richardson's attorney in an e-mail. "Are you prepared to withdraw all references to shell entities and to refer to these companies by their actual names or third-party defendants? If not, we intend to file a motion on the subject."
Two hours later, Niro filed his motion, which reads in part:
"Shell entity" is a pejorative term that connotes shallowness, a sham company without substance — something created for an improper or illegal purpose — not a legitimate business....
Yet, the truth is that, in this instance, five of the six corporations which Fish has attacked as “shell entities” are owned by a business lawyer, J. Beauregard Parker, who is a distinguished member of the New York and Florida Bars. His father was General Counsel of a Fortune 500 company; his mother is a prominent family attorney from New York that heads her own law firm... All corporate formalities were scrupulously observed for each of the third-party defendants. [from Memo in Support of Motion to Strike, PDF]
To demonstrate more clearly the hurtfulness of such name-calling, Niro lets the court know about some of the name-calling that he could have engaged in, if he were to stoop to such levels, which he of course did not. Specifically, he re-writes two paragraphs from a Fish court filing but replaces the word "Fish" with "the snooping, greedy law firm riddled with conflicts of interest." (Yes, seriously.) He also replaces the phrase "Fish clients" with "serial infringers." Re-written in Niro's mean guy language, one paragraph reads thusly:
On March 12, 2007, MCE and Mr. Harris in his personal capacity sued [a serial infringer]. “Based upon an inquiry from [a serial infringer],” the snooping, greedy law firm riddled with conflicts of interest requested that Mr. Harris remove himself from the [serial infringer] litigation “and sell his interest in the patents to third parties.” Mr. Harris agreed “to sell his entire patent portfolio as the snooping, greedy law firm riddled with conflicts of interest [demanded].”
... and so on. Fish responds that the term "shell entity" is both accurate and appropriate. The firm's lawyer, David Bradford of Jenner & Block, argues that most of those entities "appear to have no business other than to serve as a transparent basis for Mr. Harris to contend that he is not suing firm clients directly." And then:
Additionally, the Motion to Strike asserts that the term 'shell entity' is synonymous, in this context, with the term "patent troll." Significantly, Mr. Harris, even while at Fish & Richardson, sponsored a website, imapatenttroll.com, in which he proudly and openly referred to himself as a "patent troll." Truth is an absolute defense.
Quite an ending. [from Opposition to Motion to Strike, PDF]
The judge dismissed Niro's motion to strike, so Fish won't have to re-file their previous arguments; but the judge did agree that the court will not use the term "shell entities."
A hearing on Fish's motion to dismiss the Harris counterclaims is scheduled for Aug. 12, along with a few discovery-related motions.
Photo: Editor at Large / Wikimedia