Legal Pad

Oracle v. Google: 'Some Cases Just Need to be Tried'

[Ginny LaRoe]

What U.S. District Judge William Alsup described recently as the "World Series of IP cases" really is going to trial.

Oracle's patent infringement and copyright suit against Google over the Android operating system will not settle, a Monday order by U.S. Magistrate Judge Paul Grewal said. Grewal was brought into the case last year to preside over settlement talks. After one final round -- some six hours, according to a filing -- Grewal said further talks would be futile.

Here's his order:

Federal district courts resolve cases by any number of means short of trial. Sometimes we enter default judgments. Sometimes we enter summary judgments. Sometimes we convene settlement conferences. And yet, even though the overwhelming majority of cases are resolved by these and other means, we are not referred to in passing as judgment courts, or settlement courts. We are referred to as trial courts because, in the end, some cases just need to be tried.

This case is a good example of why that is so. Despite their diligent efforts and those of their able counsel, the parties have reached an irreconcilable impasse in their settlement discussions with the undersigned.

No further conferences shall be convened. The parties should instead direct their entire attention to the preparation of their trial presentations."

Grewal signed off by wishing them "Good luck."

Trial is set for April 16 before Alsup.

Chicago Firm Spins Broad Porn Piracy Web

[Petra Pasternak]

A Chicago law firm is going after grandma and her alleged online porn habit.

The San Francisco Chronicle reports that Steele Hansmeier has filed a lawsuit against “Does 1-46” -– including one the Chronicle describes as a Bay Area widow in her 70s -- in U.S. District Court in San Francisco on behalf of Hard Drive Productions.

Steele Hansmeier accuses the Bay Area woman and scores of other “digital pirates” across the country of downloading porn illegally over BitTorrent. They’re being urged by Steele Hansmeier attorneys to settle with the originators of the content by ponying up several thousand dollars by credit card.

The Bay Area Jane Doe tells the Chronicle she has never downloaded porn and doesn’t even know what a BitTorrent is. She can’t afford an attorney to make her case, but she won’t settle either, she told the Chronicle. The Electronic Frontier Foundation describes such lawsuits as "copyright trolling," and EFF attorney Matthew Zimmerman said the porn allegations add a further "coercive element," the Chronicle reported.

Steele Hansmeier, which describes itself as a law firm dedicated to eradicating digital piracy, says on its website (wefightpiracy.com) that it focuses on representing content producers and creative professionals. It’s unclear how many lawyers it employs.

 

Web Has Made First Amendment an Anachronism, Kozinski Says

[Scott Graham]

Alex Kozinski came to Golden Gate University School of Law on Monday to praise the First Amendment — and to bury it.

Appearing as part of the school's Distinguished IP Speaker series, the Ninth Circuit's chief judge argued that technology has rendered the First Amendment obsolete. As incidents ranging from Wikileaks disclosures to Barbra Streisand's house have demonstrated, it's no longer possible for the government or individuals to suppress speech in an age of distributed self-publishing via blogs and social networks.

"How do you sue a blogger who may be anonymous, or may be posting from Uzbekistan?" Kozinski asked. "And assuming you somehow get service of process and prove that he acted with malice, so what? How do you collect a judgment against a guy whose principal assets are an iMac and a genuine autographed poster of ZZ Top?" (See a video clip of Kozinski making his point here and Monica Bay's report on the lecture here.)

Prosecutors Want to Ditch Remainder of Economic Espionage Case

[Ginny LaRoe]

Looks like the U.S. attorney’s office wasn’t willing to risk another loss in a novel economic espionage case that ended badly for prosecutors last year.

The office today moved to dismiss the remaining charge against two Silicon Valley engineers, Lan Lee and Yuefei Ge, who were accused of stealing trade secrets from their employer, NetLogic Microsystems, and trying to commercialize them with venture funding from the Chinese government.

After a three-week trial last November, a jury acquitted the pair on two counts and deadlocked on three others, prompting U.S. District Judge James Ware of San Jose to later junk two of the three lingering counts. Ware kept in play one trade secret count, on which jurors had divided 6-6. With Ware’s approval, that count will now be history too.

Ge’s attorney, Edward Swanson of San Francisco’s Swanson & McNamara, said: “This is the right result, and we appreciate the prosecutor being willing to take another look at the case.”

Of course, there’s a new U.S. attorney in charge now.

Judge's Single Sentence on EFF's Fred von Lohmann Causes a Stir

[Pam Smith]

CNET has a thought-provoking story -- you can tell because it's got one of those question-mark headlines -- about the head scratching and hand wringing prompted by this sentence in a recent decision by New York federal Judge Kimba Wood:

"[LimeWire founder Mark] Gorton states that another attorney, [von Lohmann], gave [LimeWire], including [former company CTO Greg] Bildson, confidential legal advice regarding the need to establish a document retention program to purge incriminating information about LimeWire users' activities," Wood wrote in her decision.

CNET says this all went down in the granting of summary judgment to the Recording Industry Association of America, in its long-running copyright fight against file-sharing service LimeWire. According to CNET, the ruling was 59 pages and ...

"Wood doesn't offer any further explanation or mention von Lohmann elsewhere in her decision. It's hard to say what she meant exactly. But to critics of EFF and von Lohmann, who come mostly from the pro-copyright camp, Wood's description of his advice confirms what they've suspected for years. They say von Lohmann has long provided tutorials to file-sharing services on how to break the law and get away with it."

But Fred von Lohmann denied any wrongdoing, CNET reports. And EFF wants the decision tweaked to get off his back, already.

"Providing advice to clients about document retention is something lawyers do all the time," von Lohmann said. "In discovery, there are a lot of documents, and clients need to understand what obligations they have about keeping documents and not keeping them based on what the law requires. That's a conversation lawyers have with clients who fear litigation is a possibility. I don't see anything particularly nefarious about this kind of a conversation with a potential client."

On Tuesday, Cindy Cohn, EFF's legal director, sent a request to Judge Wood asking her to modify her written decision in regards to von Lohmann. "We believe the materials in the record do not support the inclusion of the phrase 'to purge incriminating information,'" Cohn wrote. "As you may imagine, Mr. von Lohmann and EFF are concerned that his professional reputation has been put at risk."

We'll see what Judge Wood is willing to do when you ask nicely.

IP News Roundup

[Zusha Elinson]

Here’s what you (and maybe I) have missed in big IP news this week.

Nader Mousavi, an IP partner at WilmerHale in Palo Alto, took the biglaw status elevator up and got a job at Sullivan & Cromwell. He will co-lead the white-shoe firm’s IP practice from Palo Alto.

As your mother told you, when you point one finger at someone, there’s always three pointing back at you. That’s the lesson for LG Display after it sued AU Optronics for patent infringement. AU’s lawyer, Wilson Sonsini’s Ron Shulman, turned around and won an infringement case for AU against LG. This week, he helped AU beat the original infringement rap. 

Ed Reines and his crew put up the final versions of the model protective order for the Northern District, and they changed some things around after criticisms from Michael Barclay.

The Secret Lives of Famous IP Lawyers

[Zusha Elinson]

Did you know that the head of Fish & Richardson's litigation practice could've been a pro volleyball player?

Thanks to Karineh Khachatourian, one of the organizers of today's IP Counsel Cafe conference in Palo Alto, we now have a bunch of little known facts about prominent patent lawyers. Khachatourian — whose claim to fame besides being an IP litigator at K&L Gates is that she appeared on the Phil Donahue Show — offered a little nugget for each patent lawyer on the contentious panel on damages.

Kathi Lutton, head of litigation at national IP law firm Fish: NCAA volleyball star who could've gone pro and former rocket scientist.

Taraneh Maghame, former Tessera IP lawyer and patent reform talking head: likes to skydive.

Brian Napper, expert IP witness for FTI Consulting: played tennis against former World No. 1 Tracy Austin... and lost 6-1.

Chris Marchese, IP partner at Fish: climbed El Capitan, camping on the side of the rock for five nights.

T. Rao Coca, IP lawyer at Nvidia: plays tennis. Hey, not everyone's life is that exciting.

Apple Snags Sun IP Expert

[Zusha Elinson]

The woman behind Apple’s patent wars is none other than Noreen Krall, former head of IP litigation at Sun Microsystems.

She was hired in March, according her LinkedIn profile. And the news was first reported on Apple fanboy site 9to5 Mac.

Apple didn’t use to have a head of IP litigation, but now with patent suits flying like so many shuttlecocks at a badminton tournament, Steve Jobs probably thought it was high time to hire one. This would appear to be the first major hire by Apple’s new GC Bruce Sewell, who abruptly took the reins (free reg. req.) from Dan Cooperman last year.

Here’s what we know about Krall: She doesn’t like to pay a lot for outside lawyers. And Sun won a defense verdict last year in a patent case in the very plaintiff-friendly Eastern District of Texas, for which she probably deserves some credit.

817 Days, Now They Can Breathe Again

[Pam Smith]

What’s it like to live through a professional crisis?

Four of the six lawyers caught up in the Qualcomm discovery scandal of 2007 talked to Recorder reporter Zusha Elinson this week about it. Of course, they’ve just recently come out at the other end of the tunnel, so it’s probably easier to talk about now: Magistrate Judge Barbara Major — the same judge who had reamed them in a 2008 sanctions order — just decided this month that they really didn’t deserve that kind of treatment, and she wouldn’t sanction them after all.

Check out the video below, to see them exhale.

Surviving the Qualcomm sanctions from Cal Law on Vimeo.

Zusha also has more on how her about-face came about in his Going Public column (free reg. req.).

Google's Doing Better in Europe

[Cynthia Foster]

Google, despite all its recent drama in the European Union, has pulled out a victory: the EU's highest court has ruled that the company does not infringe on copyright law when it sells trademarked names on the search ad market.

Google was originally sued by Louis Vuitton for selling its trademarked name to companies dealing in counterfeit goods. According to the Am Law Daily, the luxury goods-purveyor is particularly litigious and protective of its brand. It'll have to find someone else to fight, however, since Google's practice of selling the rights to advertise along side "Louis Vuitton" search results is legal in the EU.

It's not a 100% victory for Google, however.

From the Am Law Daily:

The court left the door open for companies to win damages from Google if they can prove the search engine giant knowingly accepts ads from counterfeit sellers and moves slowly to have those ads removed.