Energy Heating, LLC et al v. Heat On-The-Fly, LLC et al, 4-13-cv-00010 (NDD August 13, 2015, Order) (Erickson, J.)
Monday, August 17, 2015
Pejorative Terms Excluded, But Accurate Description Of Parties’ Businesses Allowed
The court granted in part defendants' motion in limine to preclude plaintiffs from referring to them with derogatory terms. "Among the terms movants object to are 'patent troll', 'pirate', 'patent assertion entity', 'shell corporation', 'privateer', 'bounty hunter', 'bandit', 'paper patent', 'stick up', 'shakedown', 'playing the lawsuit lottery', 'corporate shell game', 'company that doesn’t make anything', 'company that doesn’t sell anything', and 'company that doesn’t do anything'. . . . The court agrees that such terms as bandit and bounty hunter carry negative connotations and, in fact, do not really have much descriptive value. . . . The court agrees that the parties shall avoid all terms that are not only pejorative but, like 'patent troll', actually contain a legal conclusion. The court, however, will not prevent any of the parties from using terminology that accurately describes the other parties’ businesses. . . . . Clearly [defendant] was, at an earlier time, in the business of making and doing things, as it constructed water heating apparatuses and heated water for use in fracking. As a licensor, [defendant] sold the rights to use the patent, so it is not accurate to describe it as a company that does not 'do anything' or a company that 'does not sell anything'. There is nothing illegal or immoral about protecting patent rights and selling the right to use a patented product or service. . . . [T]he parties are all entities that have engaged in legitimate services related to the production of oil. There is no reason for the parties to resort to any terminology that contains meaning or connotation that goes beyond accurately describing the activities of the other parties."