by: Patrick Anderson | June 14, 2017
During his testimony to the Senate Subcommittee on Courts, Intellectual Property, and the Internet, Culver Franchise Group’s General Counsel, Steven Anderson (no relation), made several misleading statements, in my opinion, in both his written and verbal testimony. During live testimony, Anderson expressed exasperation regarding the inability to guide his management and marketing department, saying they were “up in arms” and that they were “going to get sued no matter what.” A statement like that begs the question, how many lawsuits are these guys involved in? As it turns out, Culver Franchise has been sued a whopping two times this decade.
In his written testimony, Anderson exclaims
“Culver’s has now been sued twice in the past few years for patent infringement in the Eastern District of Texas.” (emphasis added).
In reality, however, Anderson’s statement stretches the meaning of “few.” A simple Docket Navigator search reveals that Culver’s was sued once in 2011, by Diet Goal Innovations, and again in 2017. Anderson also complained about the high cost of defending this patent case, but he goes on to admit that his attorney bills a whopping $900 per hour. Defense lawyers for patent cases are hired, not assigned. Culver’s choice to hire an absurdly expensive attorney in the country is not the patent owner’s problem. In addition, plenty of law firms offer non-traditional fee agreements, and businesses like Culver Franchise Group very likely carry insurance to cover defense costs for these types of advertising claims.
But most egregiously, Anderson also claims “entities can get away with providing us far too little information for us to determine whether we think the patent is even valid, and whether we might be infringing upon it. Since when is it a patent holders job to offer information “the patent is even valid”; isn’t the very nature of holding a patent, insinuate “a valid patent”…at least at the time of the communication (PTAB rancor aside for a moment).
This common refrain rings hollow here, and not only because Anderson already previously declared that the patents are “something that we do not feel should have be approved for a patent in the first place.” How can this conclusion be at all reliable if, as Anderson also claims, they’ve been given “far too little information”? More importantly, however, the patent owner attached seven claim charts to its patent infringement complaint against Culver’s.
Reminiscent of a person cursing the darkness while being handed a flashlight, this fact completely undermines the narrative Anderson tries to create. Of course, the half-truths and misleading testimony will most likely go unnoticed by the members of Congress and they’ll simply take these statements at face value, which is an unfortunate reality and is largely how we ended up with the AIA in the first place – lacking in real world reality.