Perry Street Software, Inc. v. Jedi Technologies, Inc., decided by the Southern District of New York, presents a creative–if not winning–argument by the creator of a dating app in its attempt to force a patent infringement claim into arbitration.
The dating app creator discovered that the claimant’s counsel had downloaded the app under the name “Jediscruff”, acknowledging the Terms of Service (“TOS”) in the browse through agreement, which included an arbitration provision. As the court summarized,
“’Jediscruff’s’ profile picture bears a resemblance to Mr. Haan, and geolocation research revealed that ‘jediscruff’ had accessed the app from a location near Haan’s office. Since Perry Street takes the position that anyone who downloaded the app had to agree (even if passively, via the browsewrap agreement) to its TOS – which included the arbitration clause – it argued that Jedi, for whom the lawyer was working, was required to arbitrate the patent-infringement claim – and was also required, by the terms of the arbitration clause, to arbitrate any dispute over the issue of arbitrability.”
The lawyer’s argument–that he accessed the site for purposes of fulfilling his Rule 11 requirements–satisfied the court for purposes of defeating a motion for temporary injunction to force an arbitration.
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