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August 21, 2009



When talking about hackers and such, using ESR as shorthand for that company can be confusing.

I keep trying to read it as "Eric S Raymond" rather than "Enhanced Security Research, LLC." even though I know you're talking about a company, not a person.

Jackie Hutter

Thanks for the very detailed explanation of this complicated fact pattern. The measured description does nothing to make me feel that the parties are acting like spoiled children, however. At first review, this seems like attorneys run amok--on both sides. They are playing litigation games that will invariably make for bad law that will negatively effect the patenting community. Someone needs to sit these people down and say "snap out of it." (Maybe this would be a good job for Juniper's shareholders?)

I care nothing about how much money is being wasted by the sides--that is their perogative and the lawyers are clearly getting rich on this case. What I do care about is that these types of irrational suits make it difficult for patent counselors to provide solid risk assessments to their clients. One cannot measure risk if there is an irrational litigation environment.

As for the false marking issue--it is a statute that people need to pay attention to. Congress put it there for a reason. Unfortunately, those who have brought the suits lately appear to be "bottom feeders" to the judges who don't want to give them a payday. As a result, the cases have been thrown out for lack of standing. As someone who has counseled clients to mark their products many times over the years, I understand that at most companies it is almost impossible to get that message to make it from the legal department to the far flung plants where the product is made. False marking is probably never intentional, but instead is a function of corporate organizational inefficiency and inattention. A couple of lawsuits where a company has to pay for false marking or doesn't get damages because it failed to mark, would be a good result to make it clear to companies that marking is something they need to pay attention to as an organization. But I wish the facts of these suits to date were not that a lawyer wanting a payday.

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