Defense Attorneys Troubled by Acacia’s ‘Repeated Threats’

Defense Attorneys Troubled by Acacia’s ‘Repeated Threats’
Rhett Pardon
NEWPORT BEACH, Calif. – In less than a month, a federal judge is expected to decide whether to certify a class-action suit waged by Acacia Media Technologies, which holds five U.S. patents for what it calls digital media transmission, or DMT.

Publicly traded Acacia is attempting to widen the scope of claims against online adult companies that use video content.

But defense attorneys for more than a dozen online adult operators last Friday filed briefs in U.S. District Court saying they are troubled by Acacia’s “repeated threats.”

According to court papers obtained by XBiz, defense attorneys wrote that Acacia has threatened “to bring additional actions … relating to [two of its] patents” if the consolidation action does not bind all “online adult entertainment companies.”

Newport Beach, Calif.-based Acacia, which has already licensed 123 companies to use DMT, has been pursuing for some time to create a defendant class covering all online adult companies that have allegedly infringed on its patents and whose video content can be received in Southern California.

Attorneys at Fish & Richardson, which represents the defense group, and attorney Robert Berman, who represents Acacia, were not available for comment Friday.

But attorney Jason Schultz of the San Francisco-based Electronic Frontier Foundation doubts Acacia's patent claims are "bulletproof."

"What Acacia is doing is preying on companies that can't fight back," Schultz told XBiz. "They are not picking the Microsofts or Yahoos of the world; they are choosing to battle with an industry that can look bad in court. So it calls in to question their tactics."

Defense attorneys, in the brief, also argued that one of the patents in the claim against the online adult operators is irrelevant. The defendants are asking for the court to strike claims of infringement on a transmission patent known as “702.”

That patent consists of a system of distributing video and/or audio information that employs digital signal processing to achieve high rates of data compression.

“Acacia is left with the untenable argument that [the] defendants’ customers use the transmission system because they obtain the video created by the system,” defense attorneys wrote. “Such an argument is nonsensical in that it is analogous to suggesting that a person who eats a peanut butter sandwich directly infringes a patent because the peanut butter was made using an infringing peanut butter press.”

U.S. District Court Judge James Ware is expected to rule on the pre-trial case on July 7.