On defending one's patent by a hammer to the kneecaps

So say a company, Graple, invents a device that can calculates pi to infinty, cleans dishes without streaks, whitens teeth and freshens breath, plus does all sorts of other wonderous things. At the heart of their patent claims is the signal receiver circuit in their Yotta III processor which can instantly receive Graple’s master signal anywhere in the world (or space).

Another company, Samhummed, sees their market leader position being completely eroded by Graple’s new device. Making a strategic move, Samhummed decides to directly copy Graple’s patent and sell their own version of the device. Samhummed figures that they would be able to force Graple to license their technology in a settlement, or at worst, pay out fines and damages after a long court battle which would give Samhummed time to come up with their own patent, thus preventing Graple from dominating the market.

However, unbeknownst to Samhummed, Graple has designed a kill switch as a security measure that’s integral to their signal receiver circuit. Samhummed starts selling their Graple copy in the market. Graple’s engineers get a hold of one of these copies and tears it down, only to discover to their dismay that Samhummed has completely copied Graple’s patented circuit, right down to the nano-etched unicorn in the silicon.

Graple sends a cease and desist to Samhummed for the copied device. Samhummed vehemently denies any expropriation of Graple’s technology, fully expecting either an eventual settlement or a long court battle. However, instead of initiating a lawsuit, Graple sends a kill signal to all Graple devices not containing one of Graple’s authentic serial numbers, thus completely and permanently bricking the millions of Samhummed devices sold already.

The question is: In taking this direct action to protect their patent, does Graple have any exposure to liability? (For the sake of argument, let’s say that any court upon review of the patent would rule that Samhummed has completely infringed upon Graple’s patent).

I would think Graple could be found liable. Though they created the design, they did not supply any sort of service that Samhummed was using improperly (if, for instance, the Samhummed devices also linked themselves to the GrapleNet, and Graple decided to shut down the Net, then Samhummed wouldn’t have a leg to stand on).

Graple would be smarter to “accidentally” kill all of the Samhummed devices, in the course of some regular update to their own devices, which, NATURALLY, would be the only devices in the world that would have such a receiver…

I used to be a patent lawyer like you, but then I took an arrow to the knee.

But how is this different from a counterfeit device? If Samhummed put a Graple label on the device and shipped it to the U.S., it would be seized by customs at the docks and destroyed as a counterfeit. But since Samhummed placed their own label on it, it somehow becomes immune to preventative measures?

I know that some cable TV companies do (or did) something similar on occasion. They would send out some sort of signal which would disable any counterfeit cable boxes, but not interfere with the operation of legitimate subscribers.

I think Graple would be in deep shit. I’m no IP lawyer and maybe there is something in patent law that would save their ass, but they are deliberately and without official sanction taking positive steps to damage other people’s property.

Graple may well have certain civil rights against Samhummed. They may even have just cause to ask authorities to impose criminal sanction upon Samhummed. That doesn’t mean they have the right to self help.

The important bit here is “seized by customs”. There are any number of things you may be able to convince governmental authorities to do on your behalf that would be illegal for you to just do yourself. It’s like you saying “how is it different if I lock up my neighbour in my basement for committing a crime given that if I reported the crime to the police, that’s what the police would do?”

Your hypothetical would be more interesting if you posit that Graple’s device (unknown to Samhummed) will automatically fail unless it receives a certain code from Graple every week, and Graple simply don’t send the code to Samhummed’s devices. Then I think it would be hard for Samhummed to argue that Graple had done anything wrong, because it is very hard to see how Graple could be doing anything wrong by merely failing to do something they were under no obligation to do.

The best example of this is theDirecTV Black Sunday hack in 2001. Satellite broadcasters had been unable to stop the proliferation of SmartCard programming equipment and programmable encryption cards, so there were thousands of illegal users. After many attempts to block hacked cards using system updates, DirecTV started sending out new updates that seemed to do very little, that were hacked around. Eventually, (about a week before Superbowl 2001), a final update was distributed that assembled all the prior updates into a new program that hacked and locked pirate cards, marking them unusable with a “GAME OVER” message.

Cards were eventually reactivated, but DirecTV stopped many illegal users from misusing their service. Strangely enough, no-one sued them for preventing their illegal activities or for damaging their (technically) legitimate equipment.


I know nearly nothing on the subject but i see a difference with cable companies. In the case of a cable provider, the device is accessing their service without permission and they’re cutting of that access. The stealing device may be legitimately purchased and owned, but if you want to sue the cable company for damaging it, you have to admit it was being used to steal service. Good luck. It’s like me shooting you and trying to sue you for stealing my bullet.

The OP seems to be asking about a standalone device. The person didn’t buy it to steal, they just didn’t know the innards were copied. Killing it damages their property. Imagine Chevy copied a Ford and people bought it not knowing it was a copy, and Ford shut them all down. I can’t see how they wouldn’t be liable if the buyer bought it legitimately for honest use.

Is that an acceptable defence to recieving/handling stolen goods? If you bought a stolen painting without knowing it was stolen, do you have that defence? Can the rightful owner stroll into your, open to the public, gallery, lift the painting off the wall, walk out with it under their arm and return it to their vault without your permission?

When the telegraph was still the dominant form of long-distance communication, the Vibroplex company had a patent that pretty well locked up the best way to build a semi-automatic sending device. Similar devices that did not violate the patent were much more complex, and usually had inferior performance.

The Vibroplex “bug” keys were widely copied, but the company was very aggressive about defending this patent, and courts upheld the notion that purchasers of copies were practicing the invention and infringing, not just the manufacturers of the copies.

They would show up at telegraph offices and sue individual telegraphers who were using copies. They also started a licensing program where a telegrapher could purchase a license sticker for his knock-off key to avoid such issues. The key had to be shipped to Vibroplex, and the sticker applied, and shipped back. This allowed Vibroplex to examine the knock-offs and collect evidence to go after the manufacturers.

On the other hand, if Graple’s code validated itself against a Graple server, and Graple quit authenticating Samhummed devices running the code, I think they are legally perfectly clear. How is this different than the OP case? The results are identical.

Similarly, if I write an article and someone like Holden Caufield (the Catcher in the Rye douche, not the SD person) decided to illegally copy it and sell it to a friend, could I as the controller of the IP legally and on my own render the copy unusable like coating it with toner.

Amazon remotely wiped Orwell’s “1984” off of people’s Kindles after they mistakenly sold e-copies they didn’t have the rights to. This seems similar to your hypothetical, to me.

It’s not counterfeiting because Samhummed isn’t claiming that the products it’s selling are Graple products.

There’s three possible areas of theft here.

Simple theft, which would be one company stealing another company’s physical property and then selling it.

Intellectual theft, which would be one company stealing another company’s ideas and then using them to make and sell its own products.

Counterfeiting, which would be one company stealing another company’s reputation by making and selling products under that other company’s name.

The general legal principle is that once a property is stolen it can never be legitimately owned by any future owner, even if that owner had nothing to do with the theft and wasn’t aware the property had ever been stolen - “A thief cannot convey good title”.

Switzerland is a notable exception to this rule. In Switzerland, if you buy property in good faith, it’s yours even if it’s later found that it had been stolen from a previous owner.

Here’s an alternative scenario based on the OP.

Suppose that the Samhummed engineers found the Graple kill-switch when they were reverse engineering their device. And they removed the kill-switch feature from the Samhummed knock-offs. Then once the Samhummed products were out on the marketplace, they activated the kill-switch. The result was all the Graple products were destroyed and Samhummed took over the market.

Sounds evil, right? But consider that from a legal standpoint, the two scenarios are identical. Until a court issues a ruling on the copyright issue, original ownership of the idea is considered legally irrelevant. So both scenarios are simply cases of one company disabling another company’s products.

That’s not the same at all.

And the OP isn’t talking about reverse engineering, which when done properly can bring about an entirely legal “copy” (patents on functions might hamper this though). The OP is talking about a straight up copy of Grapple’s product, including using Grapple’s infrastructure AFAICT (otherwise Grapple would have no access to the non-Grapple devices).

What you describe is out and out sabotage, and Samhummed would be in extremely deep shit.

This is the type of example I’m looking for. Do you know if the decision is still used as a precedent and if there are any more recent real life examples?

In my OP, the Graple device doesn’t require a connection to a server to operate and I was trying to make a distinction between a copyright and a patent.

Let me create a simpler example. Graple invents the Infinity Battery. This battery operates on the principle of zero point fluctuations being separated into positive and negative charges by Maxwell’s demons. Every once in a while though, some of these demons randomly switch direction, becoming essentially a non-Graple demon. So Graple built in a receiver with a protection circuit to zap these non-Graple demons, thus restoring the Infinity Battery to 100% efficiency.

Samhummed copies the Infinity Battery right down to the protection circuit and sells it as the Always Charged Battery. However, their engineers don’t realize that in copying the device they didn’t use Graple’s Maxwell’s demons but instead created their own. So when Graple’s cleanup signal goes out, it completely zaps every single Samhummed battery, leaving those batteries deader than a door nail

So what would be the exposure of Graple in this example?

IIRC, there were additional problems with this (in this or some similar? case). People were in the midst of reading these books (and also Animal Farm) and some people had made annotations (notes to themselves). (They were reading the books for a class assignment?) When the books were pulled, they lost all their notes to themselves along with. That was part of their complaint.

ETA: Cite.

Game console makers are constantly doing this, though their goal to prevent users from bypassing the hardwares built-in copy protection. It’s been widely publicized, particularly when Sony disabled the ‘alternate OS’ feature of all PS3’s with an automatic update.