EFF Defends Live Action Role Players’ Right to Criticize Patent Suit

The First Amendment guarantees that even patent owners are subject to the slings and arrows of public criticism. Today EFF has submitted a motion and amicus brief asking the court to reject a patent owner’s attempt to silence criticism of its lawsuit.

The story begins last October when a company called Global Archery Products filed a lawsuit against Jordan Gwyther. Global Archery accused Gwyther of infringing its trademark on ‘Archery Tag’ and of infringing two patents on foam-tipped arrows. Gwyther sells arrows to the live action role playing (LARP) community.

Faced with the massive expense of a patent suit, Gwyther attempted to crowdsource his defense fund. He created a GoFundMe page and YouTube video publicizing his suit and asking for donations. Gwyther is a small US retailer who resells arrows that he buys from a German company. He argues that the patent claims against him are entirely bogus because the arrows he sells were available many years before Global Archery filed its patent application. Gwyther has also filed a motion which illustrates the striking similarity between an old German patent and the Global Archery’s supposed invention. He warns that, if Global Archery is successful against him, it could sue anyone else who supplies similar arrows to the LARP community.

Unhappy with being publicly criticized, Global Archery has filed a motion asking the court to silence Gwyther. Global Archery wants the court to order Gwyther to take down his GoFundMe page, return all donations, and not to issue similar statements in the future.

Our amicus brief explains that Global Archery’s proposed injunction is an unconstitutional prior restraint. The First Amendment requires an extraordinary showing before a court can issue a forward-looking order silencing speech. Global Archery doesn’t come close to meeting this standard. The public has a strong interest in learning about this case and placing it within the broader debate about patent quality. Indeed, if Gwyther’s criticism is valid, this is yet another case where a low quality patent is being asserted against a small retailer who cannot afford to properly defend himself. We hope the court rejects Global Archery’s attempt to silence criticism of its suit.