Written by Brandon Shalton

27-Jan-2004

Court docs filed for Markman Hearing on Feb 6th.

Interesting insight in the legal wranglings over the definition and use of words in a patent.

Latest Docs released on Jan-22 *new*

Docs filed on Jan-1

Stand by Your Man, or Woman, or Software

For those following the Acacia Saga, you will find this story to be eerily parallel to Acacia's attempts at "marketing" towards websites who run porn affiliate programs to license the patent.

For those tuning in late, a small detour to help catch you up. An affiliate program is where a porn membership websites pays commissions to websites that send people to their website to become members. The Affiliate websites attract web surfers to their website and market porn membership websites to the surfers. The porn membership sites would be direct infringers of Acacia's DMT patent claims because they carry audio or video. Affiliate websites usually don't have any audio or video and simply link to a website that does. Acacia has claimed that Affiliate Websites are contributory infringers and are required to pay for a license based on the gross amount of revenue generated.

If a porn membership website has licensed the DMT patent, then the affiliate does not have to pay any licensing for revenue generated from that program, but must pay a license for the rest of the programs that they derive revenue from.

It would seem that the direct infringer, the membership paysite, should be targeted, but under patent law (and the abuse of patent and civil law) allows Acacia to target the affiliate. From a strategic standpoint, it would make sense to leave the direct infringer alone, and target the indirect infringers. A memberhsip paysite may have 5,000+ affiliates in their program.

Returning back to the regularly scheduled program...

I found this message posted to a patent email list that I subscribe to:

"Rockwell, is suing a law firm that is currently suing Rockwell's customers.
The law firm says that Rockwell has infringed on a patent. (I'm uncertain
what relationship the law firm has to the patent holder.) The law firm
appears to assume that suing Rockwell's customers will get more money than
suing Rockwell. Rockwell sees this as blackmail/threat because the law firm
has not -- and cannot (without suing Rockwell) -- prove that the patent is
or is not infringed. So Rockwell is now suing the law firm. Rather nasty."

Here is a link to an article explaining further. Some excerpts below:

"We believe these defendants have conspired among themselves to harm our relationship with our customers," said Matt Gonring, Rockwell's vice president of communications and marketing. Unless they are stopped they "will continue baseless actions against hundreds of manufacturers."

"In Rockwell Automation Inc. v. Schneider Automation Inc., 02-01195,
Rockwell says its technology is not covered by the Solaia patent, and
rather than battling that issue out in court, Niro Scavone and its clients
have sought to "shakedown" manufacturers through threats of potential
business interruption or catastrophic damages. "

It remains to be seen what major players like Microsoft, Real Networks, and Apple will do to help companies who use it's software against Acacia's patent infringement claims. Lots of rumors and tips, but nothing publically stated or taking a stance like Rockwell has done with their customers.

Who will step up and show concern and support for their customers? We'll see, but until then, pop open another beer and toast the current defendants who can write their own country song about this whole mess.