Markman Hearing Scheduled for Tuesday

Gretchen Gallen
SANTA ANA, Calif. –In the continuing countersuit between the adult entertainment defense team and Acacia Media Technologies Corp., a three-day Markman hearing is scheduled for Tuesday, May 18.

The pre-trial Markman hearing began on Feb. 6 in a slow, painstaking process of examining the language of the two patents that Acacia has so far asserted against the adult entertainment industry, as well as many other industries that Acacia claims have infringed on its digital media patents.

According to an XBiz source close to the case, it is likely that the hearing will make major headway over the next three-day period; however, as both legal teams and presiding U.S. District Court Judge James Ware have said previously, a Markman ruling is not expected until summer.

Among the eight phrases and terms of Acacia's patents on the Markman agenda, only five have so far been heard by the judge; one was heard in the previous Markman session, and four were covered at the April 9 hearing.

"This is the most significant time because it defines what the patents mean and everyone should be aware of what the real wording is," Spike Goldberg, a member of the New Destiny Internet Group defense team and president of Homegrown Video, told XBiz. "The next three days will be more nuts-and-bolts discussions on the wording of the patents, but it is one step closer to pushing all the spin out of what Acacia says."

Greg Clayman, president of Video Secrets, told XBiz that he hopes the three-day hearing brings to light for Acacia that the defense group is going to continue to stand up and fight for what it believes.

"I would like to see Acacia and Berman realize that we are not going away," Clayman told XBiz. "We will continue this fight over what we believe until the very end. If Acacia has not realized this yet, they need to start realizing it."

Goldberg added that what the entire adult industry should be focused on right now is the pending class action lawsuit that Acacia filed in December against the entire adult industry.

Acacia has been pursuing a motion for some time to create a defendant class covering all porn companies that have allegedly infringed on its patents and whose video content can be received in the judicial Central District of California, which encompasses most of Southern California.

The purpose of creating a defendant class is so that Acacia does not have to re-litigate certain issues over and over again. The class action status of the suit also gives Acacia the option of grouping dozens if not hundreds of porn companies into one single defense category.

According to court documents obtained by XBiz, the intention of the class action suit is to prove the validity, enforceability, and ownership of Acacia's five U.S. DMT patents. Acacia might still have to pursue each company individually for patent infringement even if the class action suit is successful.

"The whole industry should start to be concerned," Goldberg said. "This should an incentive enough for everyone to be involved in the process at this point and see how they can help the defense group. I cannot understate this enough."

The Markman Hearing will take place at the Ronald Reagan Federal Building in Santa Ana at 9:30 a.m.

"We as a group realize that the ultimate decision is up to the courts and given that, we are going to get to that decision," Clayman continued. "We can all speculate on the outcome but the only person who really can determine what is going to happen and how to enforce it is the judge."

Robert Berman, executive vice president of business development for Acacia, was not available for comment at press time.