Jim:
I don't post on SI but follow the IDC thread. Your opinions, along with
Darrell's, are from the heart and are valued by many. Along with the many
others who value your and Darrel's posts, you both have earned my utmost
respect. You have demonstrated your knowledge about the subjects about which
you choose to post, and you both have proved to be consistently responsive
and reliable.
After reviewing Bux's posts to you I feel I must interject my thoughts on his
views . If you would like to share my views, which you have my complete
approval and authorization to do, you might post my E-mail to you on the SI
Board since I can't post it myself. Bux has a lot to learn.
Bux:
I do not know you, and your profile provides little or information about you.
So all I have to respond to is your post, which I think speaks volumes about
you:
Jimlurgio writes: "All that's left is for the jurors to decide if there was
infringement or not. My final question to you would be would ERICY spend all
the court costs for seven years to try and invalidate patents they didn't
infringe?
If you can answer yes to that then you do have all the answers."
You write in response: "Jim, no disrespect but your lack of understanding of
the most basic of all legal strategies is showing."
Well, that really sounded like you intended some disrespect to me. Worse you
become EVEN MORE arrogant, condescending and offensive later. No disrespect
intended. Well, I take that back; let's say instead with all due respect, if
any is due.
"In any suit where there is a large amount of capital at risk, a
multi-pronged strategy is almost always used. Since simple similes seem to be
the preferred method of helping potential IDC investors understand the
compelling nature of IDC, I will explain it in a way I'm sure you will
understand."
How arrogant can you be? And how much of a horse's behind? Let me count the
ways:
1. You are correct that in any litigation, large or small, that all
appropriate strategies should be explored and considered. In high stakes
litigation ample resources are available to both parties as is the case with
IDC and ERICY (not MOT but we'll get to that mistake later).
However, while the broad generalization is true, its application to these
facts is inapt, and it is YOU that demonstrates a lack of understanding of
the subject matter, not Jim. You do not understand the basics of patent
litigation, which would be fine if you chose not to comment upon it and
demonstrate your ignorance. Your legal strategy generalizations are discussed
below for what they are worth.
2. What Jim says is exactly correct: the Markman hearing determines the
question of claim construction and definition; only limited questions remain
for the jury: whether an infringement has occurred; and for purposes of
determining punitive (treble) damages and attorney's fees; whether it is
willful; and the amount of the damages to be trebled.
So, in this context, only limited defenses are available and appropriate,
notwithstanding your broad generalization. Which seems to be a habit with you
and suggests that you actually know very little about the things that you
think you know so much about. Worse you are too lazy to research before you
post. Sometimes it is better to keep quiet and let people suspect that you
are a fool, than to open your mouth and remove all doubt!
3. I believe that you mean analogy not simile (see below). For someone so
smug and arrogant you really are a fool and a horse's ass at the same time:
"sim*i*le (noun): [Middle English, from Latin, comparison, from neuter of
similes] First appeared 14th Century: a figure of speech comparing two unlike
things that is often introduced by like or as (as in cheeks like roses) --
compare METAPHOR
anal*o*gy (noun), plural -gies First appeared 15th Century: 1 : inference
that if two or more things agree with one another in some respects they will
prob. agree in others
2 a : resemblance in some particulars between things otherwise unlike :
SIMILARITY
b : comparison based on such resemblance
3 : correspondence between the members of pairs or sets of linguistic forms
that serves as a basis for the creation of another form
4 : correspondence in function between anatomical parts of different
structure and origin -- compare HOMOLOGY:
synonym see LIKENESS"
Maybe you did mean simile comparing two things that are unalike, but
comparing a rape case and patent litigation is absurd, like comparing apples
and kitchen cabinets, and proves nothing at all, even if your example was
well taken, which it is not, see below.
If you meant analogy: it is known as the weakest form of argument and if you
meant simile, a simile is no argument at all.
4. Next your inapt "simile" [sic] analogy attempt:
"Say an attorney is defending his/her client against a rape charge and the
attorney knows his client is innocent and the record can prove that with
incontrovertible evidence. However, the victim identifies the accused as
guilty. What strategy will the defense use? Will the defense limit themselves
to the evidence that proves the victim must be wrong or mistaken or will they
attack the credibility of the witness and bring in a lot of evidence that
shows how unreliable eyewitness testimony is? Maybe they will even suggest
possible motives for the victim to lie or suggest that no rape occurred. In
short, when an innocent (or for that matter guilty) mans freedom is at stake,
a good attorney will use all legal means to help insure that his client is
vindicated."
Actually here you are right about the obvious and sweeping broad
generalization, though you might point out the many exceptions to the general
rule, especially in the examples that you state.
If your defense is mistaken identity and the unreliability of eyewitness
identification, than we can assume that you are talking about a violent
sexual assault by a stranger. In that case it rarely pays to attack the
credibility of a true victim when what you are really attacking is her
innocent mistake in identifying the wrong perpetrator. Attacking the victim
can cause the jury to hate you and your client. Bad strategy.
On the other hand, if you are dealing with an acquaintance rape then
generally no issues concerning identification are present. In that case your
defense might be multi-pronged and include consent, and witness credibility
and you really have no choice but to "attack" the alleged victim though there
are questions of style.
You are correct that attorneys are sworn to zealously advocate their client's
interests and to raise all meritorious claims and contentions on their
behalf. Duh. Yes, a criminal defense attorney leaves no stone unturned in an
attempt to vindicate his or her client's rights.
However, as stated and explained above, the broad generalization is inapt in
the context of this patent litigation, see point #2. Wrong, AGAIN!
"The same holds true in a high-stakes patent infringement case. If MOT
attorneys thought there was any weakness in the patents, they would attack
that first. The amount of money they spend doing this is inconsequential
compared to the possible risk of not providing a vigorous defense. Another
reason for MOT to first attack the patent is as a delay tactic in case MOT
received an unfavorable ruling (regardless of whether that ruling was just or
not) as IDC investors claim happened to IDC."
First, the MOT case is OVER. We are now litigating the ERICY case. Wake up,
it is the year 2000, 1995 is quite a while ago. It might help if you would
pay attention to detail.
Second, once again you are just wrong and obviously ignorant of the
procedural changes and substantive changes resulting from the Markman case.
See point #2 above.
Third, in essence many of the almost universally agreed (PTO office
revalidation, appellate court partial victory, European PTO, and European
trials and appeals court) to have been grossly wrong findings of the MOT case
jury have been overturned, so IDC investors are well justified in their
belief that injustice has been done to them in the past.
Why do you think the PTO revalidated crucial patents that were involved
FOLLOWING the MOT case? And the appellate court overturned many of the jury's
findings?
Fourth, and to your credit, you acknowledge that the costs of not defending
might outweigh the costs of defending--which inherently admits that ERICY
knows they are in trouble. Your argument proves our point. The reason they
are willing to spend the money to litigate is that if they can get away with
stealing, they will, given the fact that the legal fees while not
insignificant are nothing when compared to the $$$ that they should have paid
and the damages that they will have to pay IF they don't settle which they
most likely will.
It is surprising that such a brilliant Internet legal strategist as yourself
never even discussed the most likely outcome of this litigation which is a
settlement on the best terms possible, perhaps even a new partnership and/or
joint venture.
As to your 'delay' theory, what does it gain ERICY to delay? The meter is
running on the damages which keep accruing, to what end does delay serve
ERICY? IDC is not going away, and having filed the initial complaint, ERICY
then lost control over the process anyway--now the court sets the schedule.
Delay only runs up their legal bills unnecessarily if they plan to settle
anyway, though admittedly they might be in a better bargaining position if
they could score some points, which they haven't; conversely, if their
position of weakness is further exposed by the ongoing process, which thus
far it has been, then they are dealing from an increasingly weak position.
Explain how in your 'analysis' delay serves them? Without some compelling
explanation your 'delay' theory does not 'pass the rationality test.'
"Your suggestion that MOT would not question the validity of the patent if
they didn't infringe upon it does not pass the rationality test and shows
either a complete lack of understanding of ordinary legal strategies or an
attempt to mislead potential investors. I'm not sure which. Bux"
Once again, it is you who lacks an understanding of the appropriate
strategies and the probable thinking behind them when it comes to patent
litigation. It is your understanding of legal strategies and the broad
generalizations that you draw from them that is simplistic. The broad
generalizations are inapplicable in this factual legal context. Where do you
get your ideas about legal strategy from television or paperback novels or
some second rate paralegal school or a fourth rate law school? God forbid
that you are actually a lawyer!
And, if you are wondering about me, I AM a trial lawyer in real life (I don't
just play one on TV or the Internet) and I have tried hundreds of cases,
maybe even thousands, too busy to stop and count. I was on the front page of
the Philadelphia Inquirer one and one half years after my admission to the
bar because of a high profile case that I handled resulting in the release of
a wrongly accused and imprisoned man in Philadelphia. I am a graduate of the
University of Pennsylvania School of Law and a busy and successful practicing
attorney. And former employee of IDC, prior to going to law school.
You just don't know what you are talking about when it comes to this case and
so many other things. And yet you so proudly flaunt your ignorance so
arrogantly, that is what is truly astounding--the combination. Oh yeah, with
all due respect, if any is due.
Now perhaps you would like to do some research about patents and patent law?
This would be a good place to start: ljextra.com <A
HREF="http://ljextra.com/patents/index.html">PATENT LAW CENTER</A>. There
you can read about the Markman case and other aspects of patent law. The
material is complex. But you might try reading it before you post so
ignorantly to someone who does bother to inform themselves before posting,
and is not trying to mislead investors--to the contrary, Jim has gone to
great pains to provide a forum where those with knowledge can share their
insights on the Raging Bull.
Giving you the benefit of the doubt, I will assume that you are just ignorant
and arrogant too, not a bashing short spammer in disguise.
But remember from above, SOMETIMES IT IS BETTER NOT TO SPEAK AND LET PEOPLE
SUSPECT THAT YOU ARE A FOOL, THAN TO OPEN YOUR MOUTH AND REMOVE ALL DOUBT! |
