Eolas Technology, a company built on a patent that originated at the University of California, has gone Texan. Eolas—having settled a previous infringement suit against Microsoft after winning a jury verdict of more than $500 million—this week asserted its 5,838,906 patent in a suit filed against 23 companies, including large banks, technology companies, and retailers. The goal, obviously, is to amass a new fortune via the patent wielded against Microsoft, as well its flashier child-patent, No. 7,599,985. The common thread connecting the targeted companies: they all employ browser plug-ins and “AJAX” technologies that have been used in some form on the Web for more than a decade.
Despite that, Eolas attorney Mike McKool of McKool Smith is confident the '906 patent will hold up in the current litigation. Speaking with The Am Law Litigation Daily, McKool emphasized that the patent has already been tested three times in PTO reexaminations. (It’s worth noting, of course, that none of the present defendants were around for those hearings.)
As for Eolas itself, the patent-holding company has evolved since it was last heard from. It had just one employee—Dr. Mike Doyle, who lives in the Chicago area—when it sued Microsoft, and its payroll doesn’t appear to have grown much since then. The Eolas website, however, claims the company now does research and development in addition to enforcing patents, though the links its research accomplishments are mostly brief descriptions of patents or patent applications.
In July, Eolas was incorporated as a Tyler, Texas corporation (it was previously incorporated in Delaware). And if that wasn’t enough to give it a legitimate reason to file suit in E.D. Tex, it managed to salt the list of targets in its current suit with three companies—JC Penney's, Perot Systems, and Rent-A-Center—headquartered in Plano, a Dallas suburb that lies within the patent-loving, plaintiff-friendly district. Consider it a belt-and-suspenders strategy aimed at keeping the suit in Eolas’s favored venue in the wake of decisions like the one in the TS Tech case that have made it easier for some defendants to get cases transferred out of the Eastern District. It's a popular strategy. Read the Eolas complaint [PDF].
Judge balks at $600,000 bill for a quick win
The Prior Art has previously reported on Triune Star, a patent-holding company that filed suit against Walt Disney Co., Pantech, and LG Electronics. The federal judge overseeing the suit, which involved claims related to camera phones, deemed it so frivolous as to warrant Rule 11 sanctions and the payment of the defendants’ attorneys fees.
The winning attorneys at Morrison Foerster and Drinker Biddle & Reath subsequently submitted bills totaling $600,000—for a patent lawsuit knocked out on summary judgment after limited discovery. Judge Michael Mihm of the Southern District of Illinois responded by slashing the bill by 60 percent to “cut the fat” before approving it.
In trimming the tab, Mihm criticized the defense attorneys for performing duplicative work and seeking big fees, especially on the fee motion itself: "With all due respect, incurring more than $30,000.00 in fees in drafting a fee petition for an award of Rule 11 sanctions when many sanction awards in their entirety in this circuit do not exceed $30,000.00 borders on unconscionable," he wrote in his order [PDF].
Mihm said the defense lawyers over-briefed the case by filing motions with evidence on claim construction that were "not helpful" in resolving the dispute. He also said the two firms "presented substantially the same arguments," and added that the joint defense arrangement between the Triune Star’s three targets should have resulted in "better coordination and a reduction in redundant billable hours." (TPA’s calls to MoFo and Drinker Biddle were not immediately returned.)
Triune Star's attorney, Keith Rockey of the Chicago firm Rockey, Depke & Lyons, has settled with Disney and MoFo, but Drinker Biddle were apparently less flexible in discussing its award of just over $115,000. Rockey is appealing that portion of the award to the Federal Circuit.
Guardian v-chip campaign grinds to a halt
Guardian Media Technologies' V-chip assault, which has been playing out in the Southern District of California since 2005, has come to an end. Judge Irma Gonzalez has now ruled that Sony and three other defendants didn't infringe either of the patents—4,930,158 and 4,930,160—that the patent-holding company claims cover V-chip technology.
Richard Gresalfi of Kenyon & Kenyon, who represented Sony Electronics in this case, says that the patent's previous owner, Australian inventor Peter Vogel, approached Sony with licensing demands in about 1999, but disappeared after Sony declined to take a license.
About five years later, Guardian—owned by former Townsend and Townsend and Crew patent lawyer Thomas Coverstone—brought suit against more than 20 technology companies. The company claimes that its patents, cover technology that give parents control over what their children watch on television. TVs sold in the U.S. have been required to incorporate that technology since 1996.
The companies targeted by Guardian continue to win on summary judgment for non-infringement. Last month, Sony Electronics, Thomson Inc., and Victor Co. of Japan all achieved such victories. Guardian is now appealing those rulings—along with the Nintendo non-infringement ruling TPA reported on earlier—to the Federal Circuit. Read the latest Guardian judgment [PDF].
It's worth noting that Guardian Media's patents were reexamined at the PTO, which canceled a number of the company’s claims were canceled, but left some intact. What those claims cover, according to defense attorney Gresalf, was "a system that does on-the-fly editing out and replacement of offensive portions of a program."
Explains Gresalfi: "It was a replacement system, with two players, one playing the main tape, and the other player would substitute something else" when a sexually explicit or violent scene came on, for example. Where Guardian went too far, Gresalfi says, was by taking those limited claims and asserting them against single DVD systems.
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