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Markman Hearing Primer

Markman Hearing Primer

January 15, 2004
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" The implications of this outcome could mean that the defendants and potentially anyone who uses digital audio/video over the internet, and who has not licensed the patent, would not be infringing on the patent. "

For those following along with the Acacia Saga, Feb 6th is an important date. It is the first day of the Markman Hearing for the defendants against Acacia's DMT patent infringement claims. In order to get everyone up to speed on this event, I have written a Markman Hearing Primer... satirized for your sanity.

The term Markman Hearing came from the result of the case Markman v. Westview Instruments Inc. This article talks about Markman Hearings, with an excerpt provided below:

"Markman hearings are argued before a judge. Claim construction arguments, based on canons of construction, address the use of the terms in the claims, the use of the same terms in the patent specification, arguments made during the prosecution of the patent application and, possibly, industry usage of those terms."

Both sides filed their arguments to the court for review. FightThePatent.com has obtained copies of those court documents. For those arm-chair patent hobbyists, the court filings are very interesting. You will notice the importance of the use of words and the definition of words is critical for either side in defining/defending their claims and constructs.

The zip file contains the pre-Markman court filings for the defendants and Acacia. New Destiny is Home Grown Video and also represents 7 other defendants. CyberHeat, aka Top Bucks, is listed in the document, but they have recently settled with Acacia. Offendale, aka IWI, MaxCash, is not part of the Defense Group and have retained their own patent attorney firm.

The first line of the Introduction in the New Destiny document sets the tone for the document:

"This case is ripe for dispositive claim constructions pursuant to Markman v. Westview Instruments Inc."

Running this through the FightThePatent Legalese Translator, it comes out as: "If the DMT patent were a cheese, it would be Swiss Cheese, filled with so many holes. It might also be Limburger because everything about the methods used to solicit/license the patent and the overly broad interpretations really stink."

*note: FightThePatent is (not even) considering filing a patent for the translation of legalese into satirical commentary. Whether a programmatic method or a manual translation, this process could be broadly extended to all comical outlets such as the Daily Show or even commentary by radio personalities. FightThePatent is not responsible for the cheesiness of the outputted results and blames the computer.

Acacia's entire document was run through the Patent-nonPending Legalese to Satirical Commentary translator and it produced the following results:

"All your videos are belong to us"

FightThePatent Analysts are still analyzing the results, equating it similarly to the cookbook titled 'To Serve Man' from a sci-fi classic Twilight Zone episode or to the output of '42' from the Hitchhiker's Guide to the Galaxy.

Below is a breakdown of all of the Adult Industry players involved in the Acacia Saga:

Current Defendants Newly Added Lawsuits* Sponsors that settled**
Defense Group:

  • Video Secrets
  • Homegrown Video
  • Lightspeed
  • ARS
  • Gamelink
  • Ademia
  • AEBN
  • Audio Communications

Other's fighting:

Silver Cash
Max Cash

  • Club Jenna
  • Orgasm.com
  • Webpower Inc. = Click Cash (iFriends)
  • Cybernet Ventures = Adult Check
  • Global AVS = ProAdult
  • ICS Inc. = adult.com / GFY
  • National A-1 Advert =
    singles.com, sextoys.com , girls.com , guys.com , ladies.com, slaves.com , celebrities.com, cash.com

  • smutbucks.com
  • primecash.com
  • falcondollars.com
  • megapornbucks.com
  • cecash.com
  • venuscash.com
  • buttbucks.com
  • ten.com
  • trafficcashgold.com
  • zooted.com
  • wickedbucks.com
  • vividcash.com
  • flyntdigital.com
  • candidcash.com
  • platinumbucks.com
  • sexedcash.com
  • epiccash.com
  • adultmegacash.com
  • jerocash.com
  • pornkings.com
  • dormbucks.com
  • adultpaymaster.com
  • chichiclicks.com
  • creamycash.com
  • gloryholecitycash.com
  • ddgcash.com
  • topbucks.com

* the position of those listed in fighting or settling has not been determined

** from LicensedSponsors.pdf

One possible outcome of the Markman Hearing might be the way the terms and definitions used by Acacia could have the judge find their use to be improper in application. The use of the word 'transmission' is highly contested as the DMT patent was never envisioned to include the Internet, but instead a Video-On-Demand system involving switched-based networks (ie. telephones). After the judge rules in the defendants favor on the terms used and some follow-up sessions, the judge could eliminate most of the claims leading to the end conclusion of the defendants not-infringing upon the patents.... The end result would not invalidate the patent.

Fight The Patent Concludes
The implications of this outcome could mean that the defendants and potentially anyone who uses digital audio/video over the internet, and who has not licensed the patent, would not be infringing on the patent.

The companies that already licensed the patent would have to continue to pay licensing fees. These companies would have a difficult time to break their contract, because they voluntarily agreed to the definitions that Acacia used in the license.

For those involved in the fight, it would be a bitter-sweet victory to show the rest of the Adult Industry that those that signed were on the wrong side of the fence of this major issue. While I am sure there will be shouts of joy at the conclusion of this story, it does illuminate how issues like patents can divide companies and industries.

Editor’s Note: I’ve downloaded the zip file of documents referenced above, and it is a ‘fascinating’ – if mind numbingly long and dry – look into the legal process surrounding Acacia’s claims, and the defendant’s counter claims. If you can spare the considerable time required to read these briefs, or even to scan them, you will have a better understanding of these oft-discussed issues at stake. ~ Stephen


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