Written by Brandon Shalton

14-December-2003

12-Jul-2004

Markman Order released!

Read my Summary

Read the court PDF

updated on 27-Dec-2003

(thanks to some ACTG Yahooligans for inspiring the updates)

Feb 6th is a day that will live in infamy....

It's Ronald Reagan's birthdate.

It's my birthday.

It's also the first day of court for 11 defendants against Acacia in a Markman Hearing.

For those that tuned into the Acacia Research 3Q conference call... here is a a very close transcription of a question and answer:

question by a shareholder:

"In terms of actual patent litigation or dealing with any of the potential licensees of the existing DMT patents, anything new creep up in terms of court challenges or anything of the like or nothing special this quarter?"

Paul Ryan answer:

"NO… .... as Chip indicated the vast majority of the defendants and the only litigation that we have brought to date, have actually all settled with us.... and a significant number of the remaining ones there have also settled but no,.... there is nothing we have seen from a legal perspective to cause us any concern "

On an interesting side note, we have learned from Bill Clinton, you can answer a question truthfully, though not telling the exact truth when he said ''I did not have sexual relations with that woman <pause, gaze averted> Ms. Lewinsky'. There is an interesting article that talks about how the use of words by Clinton can make what he says to appear to be a truthful answer.

The current 11 defendants had been waiting for their day in court since the 3Q call, and it has now arrived.

On December 18th, 2003, Acacia added 8 new lawsuits. Most notable name to appear is Club Jenna Inc. which is owned by noted-adult industry star Jenna Jameson.

Other new defendants:

Orgasm.com

Webpower Inc. = Click Cash

Cybernet Ventures = Adult Check

Global AVS = ProAdult

ICS Inc. = adult.com

National A-1 Advert =
singles.com, sextoys.com , girls.com , guys.com , ladies.com, slaves.com , celebrities.com, cash.com

A great article talking about a Markman Hearing.

The significance of this event is that Acacia does not get discovery information from the defendants...they have to appear in court and present their claims, and the defendants present their defense claims. The judge weighs the arguments and determines if there real validity in the plantiff claims.)

A quote from an AVN article about the Markman Hearing:

"Because claim construction should be done without looking at the systems or methods that are accused of infringement, it is unlikely that Acacia will be able to find out how the Defendants' systems work and then tweak its claim construction arguments to make its infringement case," the message continued. "This is a huge victory because the documents that Acacia has given the Defendants thus far make clear that Acacia does not know how Defendants' systems work, and that it lacked a good faith basis for filing these suits in the first place. "

It's not like a trial, but is like one, in that you have to present evidence to support your claims. Prior Art will be presented due to the judge asking for it, to give him a better understanding of the scope and the relevancy of the claims.

This could mean that the judge could be convinced with the prior art presentation by the defense to see that the Acacia patent claims are not valid and don't apply.

Given this potential direction, I have modified the prior art page and the searching for prior art page to protect the defendants case.

Prior to this news, it was decided that the presentation of sample prior art and a list of prior to search for, was more of a benefit to the defendants case because it would allow more people to be involved in the searching and to also see that prior art is out there.

During discovery phase of litigation, Acacia would be handed over all the prior art that the defendants found, so it was not an issue if Acacia had read about some prior art on my pages.

But with a Markman Hearing and not having a discovery phase, this means Acacia could get some insight into what prior art the defendants might use and try to prepare their attack based on it.

For those that have joined me on the search for prior art, please send the leads to me, and don't post on boards.

There is a real reason now not to publically post the information.

I am making the private webpages available to defense attorneys and other interested parties.

The Adult Industry is not alone in Acacia's targeting. Mainstream IS AWARE and are getting their defenses in place. OnCommand (a Video-on-Demand company, recently acquired by Liberty Media, was also recently named in a lawsuit)

I won't be getting an invalidation verdict for my birthday, but atleast I will know when the candles are lit on my cake, that the fuse to this bomb will also have been ignited.