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Friday, November 16, 2007

Friday Patent Litigation News

It has been a busy Friday. But there's tons of Patent Troll News out there to be discussed. But I bring bunches of stories: Acacia losing to Microsoft, then getting right back on the bike and suing Google (see below). A jury verdict of infringement that nobody is talking about, and a biotroll. Something for everybody. This is likely my last post until after Thanksgiving.

First, I'd like to lead with a word about jury verdicts in EDTX. Everyone is talking about Acacia, and how EDTX is dead as a jurisdiction. I call bullshit. The fact is that it was a crappy patent, and crappy patents do die sometimes. The shame is that there are so few summary judgments of noninfringement.

Second, why is nobody talking about the other trial that was going on in Marshall? You know, the one between Power-One and Artesyn Technologies? Evidently, the jury found both of Power-One's patents valid and found one of them infringed. See here for Power-One's PR. You can view the verdict form here. According to the trial minutes, Power-One has moved for a permanent injunction. The judge has asked for briefing. Here is Artesyn's spin on the loss. Damages or no damages, a patent is the right to exclude, and it looks like Artesyn is going to be excluded from something. Hope Michael Smith picks this up and adds it to his database.

Third, who says that there are no big verdicts in EDTX? I have seen that trumpted by the Patent Bill Opposition Coalition lately. But remember z4 v. Microsoft? Today the Federal Circuit affirmed the $115M verdict that z4 got from Microsoft in that Judge Davis case in Tyler (Microsoft was represented by Fish & Richardson in that case, not Weil Gotshal).

Now, turning to reader email, there has been a ton.

Reader Anthony Sabatini of New York writes to tell me that the auto-text patent asserted by Acacia subsidiary AutoText in Cleveland might be invalid in light of the Control Data Corp CDC6600 console system developed two decades earlier. He points interested readers here (warning, massive PDF file). Sabatini offers this observation about software patents like this:

We have 30 years of software technology starting in 1950 that was not patentable. The patent office, by recognizing only itself as the registrar of technology, has made it possible for the unscrupulous to patent technology from that era since it does not exist in the patent database.
Next, a reader using the name "IP Standing" (hehe) observes that Antor Media is up to no good:
Here is an interesting troll trick that I have not seen discussed, but maybe I just missed it. Antor Media filed a patent infringement case against a single, essentially unknown defendant, AEBN (on-line porn sites), on Nov. 5th. Then, two day later, on Nov. 7th, they apparently remembered that they had left off the other 13 defendants, so they filed an amended complaint.

Probably not an accident, since these are some well-known defendants. The result of this trick is (1) a preview of which judge gets the case (Folsom) before all the other defendants are added; and (2) no one looks at amended complaints, so this case flys below the radar when these big-name defendants are added. If you didn't like the first-assigned judge, you could just drop the case, refile and see who comes up next. Once you get the judge you want, add the remaining defendants. Also, since AEBN is basically a no-name company, attorneys who subscribe to CourtLink, RFC Express, and other case-filing alert services are likely to ignore the case or put it at the bottom of their pitch list. No alert service looks at amended complaints and
updates new defendants. Also, you gotta love a case where the lead defendant is an on-line porn-provider and the co-defendants are respected companies from the telecomm, food, entertainment, automobile, and chemical industries. WARNING - Don't open any of the AEBN google search results with your door open or your kids or secretary in the room!
I couldn't have said it any better. The added defendants include media (Gannett, Univision, McGraw Hill), manufacturing (Ford Motor, EI du Pont), retail (Wal-Mart, Circuit City), high tech (Xerox, Cisco), and more. Sneaky, Fulbright & Jaworski on behalf of Antor, sneaky.

BIOTROLL ALERT!!! Well, an NPE, anyway. Individual inventor from Norcross, Georgia, gets angioplasty stent patent. Assigns it to a shell, and then to another shell. Plaintiff ends up being Wall Cardiovasular Technologies, LLC, a Texas corporation with principal place of business in Marshall, Texas. Parent is Cardio Holdings, LLC, a Delaware corporation with a principal place of business in Marshall, Texas. Parent of Cardio Holdings is probably another shell, and so on. Defendants are relative strangers to EDTX, Johnson & Johnson and Boston Scientific. Wall represented by a who's who of Texas lawyers: Otis Carroll, Judge Parker, Franklin Jones, Calvin Capshaw, led by Susman Godfrey.

Finally, IP Innovation and Technology Licensing Corp. -- in other words, ACACIA -- filed a lawsuit in Marshall against Google, accusing Google's search engine and Google Earth of infringing two patents. This is the same Acacia sub that sued Red Hat and Novell over Linux, with the same lawyers - Johnny Ward and Eric Albritton. But these are different patents. The patents asserted against Google are 5,276,785 and 5,675,819, which Acacia got from Xerox. Nice going, Xerox.