The Prior Art

Patent Litigation Weekly (April 13-17)

This week: Consultant/blogger/inventor Gary Odom sees infringers everywhere, AOL and Yahoo move a little bit closer to "mutually assured destruction," and more.

Patent Hawk Swoops In Again

• Odom v. Attachmate Corporation et al, 09-cv-00406 D. Oregon. [PDF]

Gary Odom is a litigation consultant, and an inventor. Last year, he used his 7,363,592 patent to sue Microsoft—a company that once employed him as an adviser on patent lawsuits—in the Eastern District of Texas. In February, The Prior Art wrote about how Odom's employment contracts with Klarquist Sparkman, one of the firms Microsoft regularly taps as outside counsel, became an issue in Odom v. Microsoft. 

In that case, which has since been transferred to Oregon, Odom is demanding that a royalty be paid to him for each copy of Microsoft Office 2007 that is sold in the United States. In February, Odom sued Autodesk, seeking a similar royalty on Autodesk 2009. Odom v. Autodesk. [PDF]

Last week, Odom followed up those suits by filing one in Oregon that names 28 additional software makers. Each of the companies, he claims, owes him royalty payments. The list of defendants includes companies that range in size from British aerospace giant BAE Systems to smaller entities such as Emportal and San Diego-based SmartDraw.

Neat trick: Facebook dodges Spangenberg's search patent

PA Advisors, LLC is an arm of Erich Spangenberg's patent-holding empire. Its job is to assert U.S. Patent No. 6,199,067, which claims the use of user profiles in Internet search; it was used to sue Google, Yahoo, Facebook, and several other smaller players in November 2007. [full PA Advisors docket]

On Friday, Law360 reported that the suit was dismissed against Facebook; and remarkably, a Facebook spokesman said that no payment at all was made to Spangenberg. That's pretty unusual in a case brought by a patent-holding company.

If a case isn't going well, it's still typical for a plaintiff to get at least a small payment. That payment might not even cover the plaintiff's legal costs, so it's effectively a defense win; but it allows the plaintiff to save face. But not here: “After meeting with Facebook and learning more about our technology, we appreciate that PA Advisors decided to dismiss their claims without any payment or other agreement,” said the Facebook spokesman.

Desperately Seeking Sunshine in Litigation

I've complained before about the overzealous sealing of documents in federal courts. Last week, U.S. District Judge James Ware helped Facebook keep potentially embarrassing facts out of public sight: he shut reporters out entirely and held a secret hearing. Facebook's lawyer, Orrick, Herrington & Sutcliffe partner Neil Chatterjee, has now sealed 234 documents on behalf of his client, according to CNET blogger Declan McCullagh.

Obviously, litigants don't want true trade secrets thrust into the public—especially defendants who "didn't start it"—but what kind of legal standard do these mass sealings meet?

Recently, I learned about a bill that would start to address this issue — the Sunshine in Litigation Act of 2007, sponsored by Senator Herb Kohl, D-WI.

While playing news catch-up, I saw a note on the Intellectual Property Owners Association website that the group voted earlier this month to oppose it. Don't know exactly why that stance was taken now, since it looks like there's been no movement on the bill since hearings were held in March 2007.

From Kohl's introductory speech on the bill, February 2007:

Surely, there are appropriate uses for such orders, like protecting trade secrets and other truly confidential company information. This legislation makes sure such information is protected. But, protective orders are certainly not supposed to be used for the sole purpose of hiding damaging information from the public to protect a company's reputation or profit margin.

Senator Kohl's main concern is about the secrecy of settlements in product liability cases; but his sentiment about limiting the scope of protective orders sounds like an idea that would "read on" patent lawsuits.

Tomorrow, Judge Ware's calendar includes a motion by CNET to unseal filings and transcripts in the Facebook case. Unfortunately I don't think I'll make it down to San Jose to hear that one but it will be interesting to see what comes out of it.