Blue Jeans Cable Strikes Back - Response to Monster Cable

Posted by dinotrac on Apr 15, 2008 5:25 PM EDT
Audioholics Online A/V Magazine; By Tom Andry
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Not a Linux article, but on a topic near and dear to our hearts -- An attack by an IP holding company. In this case, Monster Cable's lawyers sending a Cease and Desist letter to Blue Jeans Cable. Too often, FOSS folk, bless their hearts, panic at the word "patent". This letter from Blue Jeans President and former litigator, Kurt Denke, gives some idea why real companies -- companies with valuable businesses and assets to protect don't just go out and routinely drop "patent bombs".

Admittedly, Denke may be pushing the envelope a bit -- that is something lawyers do, but look for these things:

1. He wants to be notified of infringement in a way that actually informs him of what his company is doing.

What a lovely argument, btw. He checks out Monster products and doesn't see it. They send him five design patent claims, all of which are different, and asks : How can I infringe all five? Tell me what the heck you think I am doing wrong.

He points out that some design aspects are a functional requirement of RCA plugs and not subject to design patents. He even manages to find an expired Monster patent that may constitute prior art!

Mostly, though, he says don't through BS my way. If I infringe, tell me what the heck I am infringing. This crap you're sending tells that you don't know, and, if you don't know, you are probably in violation of Federal procedural rules. For those that don't know -- Federal Rule 11 requires that a lawyer certify that he has investigated the facts and law sufficiently to know that the filing is not frivolous. The cool thing about Rule 11 is that it exposes the lawyers to sanctions, not just the client.

The letter is also potential evidence, if, in the end, Blue Jean is found to have infringed a Monster design patent, that it had not been properly notified and that damages bases on that patent would not accrue until notification was sufficient.

I also like the last paragraph, which is the cost and benefit end of things. One reminder: if a patent infringement claim is considered frivolous, the plaintiff can be made to pay the defendant's attorney's fees. This has two effects:

1. Raises the plaintiff's cost significantly, and
2. Increases the likelihood that defendant will be able to secure competent representation.

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A lawyer with a sense of humor Sander_Marechal 8 2,584 Apr 17, 2008 6:25 AM

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