The Electronic Frontier Foundation has advocated against problematic technology patents for years, but it wasn't until February that the organization directly represented someone who had been sued in a patent lawsuit. A little-known video website called Garfum.com owns US Patent No. 8,209,618, which it says covers online photo contests. It sued four small photo websites seeking royalties, including BytePhoto.com, a website run by Pennsylvania photographer Ruth Taylor.

EFF labeled Garfum a "patent bully," but it was a bully that couldn't take a punch. After EFF filed a motion to dismiss the patent, Garfum replied with a brief explaining how its patent was special and eschewed "traditional databases."

That 19-page brief was all the fight Garfum's lawyers had. Once a hearing to consider the validity of their patent was scheduled, they dropped the case. Now EFF is seeking to make Garfum pay attorneys' fees.

"The idea that you could patent an abstract idea, find innocent enthusiasts online and demand settlement money—and then slink away once challenged and before the court issues a ruling—goes against any sense of fair play," writes EFF lawyer Daniel Nazer in today's blog post about the case.

Seeking $5,000 settlement for “ancient and well-known concept”

EFF's motion for fees (PDF), written by Nazer and Joe Gratz of the Durie Tangri law firm, argues that the patent in question was plainly obvious under the standard established by Alice Corp. Supreme Court precedent created last year. Garfum was using the cost of litigation to extract a quick settlement, and only a fee award will deter such behavior, he writes.

"If Defendant had not secured pro bono counsel to defend this case on the merits, it would have had no choice but to capitulate to Garfum’s demands," explains Nazer, who was joined on the brief by Joe Gratz of SF law firm Durie Tangri. "Only an award of attorneys’ fees can deter Garfum and end its campaign of nuisance litigation."

Taylor runs a small photography business, but EFF says BytePhoto is a "hobby" website that generates almost no revenue. In 2013, the site made just $313—that's $165 from donations and $148 from Google AdSense. It cost about $1,400 per year to run the site, including $1,212 in server costs.

The patent claims supposedly infringed by BytePhoto "take the ancient and well-known concept of a competition by popular vote and describe it in the modern context of computer network," explains Nazer. "The claims describe a computer service with user accounts through which users can upload media content—a conventional photo-sharing website."

Garfum's response to EFF's claims was to file a brief explaining how its patent covers sharing multi-media "among a plurality of users in a computer network, a task which was notoriously difficult prior to the ’618 Patent." It asserted that technology was innovative, going beyond "traditional databases," although it didn't explain how. "Traditional databases using conventional methods could not deliver the most relevant content, e.g., funniest videos, to users," Garfum's lawyers wrote. Yet Garfum's own patent stated, twice, that "conventional database packages" could be used in implementing it.

"Though it is dressed up in the language of patent claims, what Garfum claims to have 'invented' is a photo competition by popular vote, albeit one that occurs online," Nazer wrote in the fee motion.

The concluding section accuses Garfum of using the legal system to "extort money from a vulnerable small business." Even after Garfum found out that BytePhoto runs at a loss, it still demanded a $5,000 payment from Taylor. "By targeting a small family business such as Reflections by Ruth, Garfum surely knew it selected a defendant that would not be able to defend the case on the merits."

Once EFF took Taylor's case and a hearing about the patent was scheduled, Garfum unilaterally submitted a covenant not to sue and moved to dismiss its claims with prejudice.

Garfum's lawyers didn't respond to requests for comment for this story.

Listing image by Flickr user Andreas Surya