From Raging Bull!
By: Del_monty $$
Reply To: 625 by gwicks $$$
Friday, 11 Aug 2000 at 2:25 PM EDT
Post # of 634
I'm a shareholder in MACR and other tool makers such as Totally Hip THW:CDNX and wanted to get some answers to pressing
questions about the Macromedia Adobe dispute, so I e-mailed the CEO of Totally Hip to get his take on the Macromedia Adobe
issue.
To my surprise, I received a very interesting response via e-mail from the THW CEO in favor of Macromedia. This makes me feel
much better. I've posted the relevant parts of the e-mail:
==========================
Delmont,
I'm sure you are aware the action brought on by Adobe against Macromedia for patent infringement is a very expensive, and time
consuming option for Adobe. It will cost Macromedia to defend itself, but not near as much as Adobe to go after Macromedia.
Thus the reason I believe Adobe is asking Macromedia to stop infringing via a very public message with the Web site. It appears
Adobe wants to avoid the expense of a preliminary discovery process and probable legal costs in excess of $2,000,000 or more for a
full scale trial and appeal process.
I'm not a lawyer, but have considerable knowledge in regards to copyright and patent cases. In my humble opinion, Adobe has
waited far too long to go after Macromedia, and now it's case against Macromedia is somewhat flawed for a number of reasons.
Macromedia's chances of prevailing in this lawsuit depend on how rigorously Macromedia attacks Adobe's patent, and how public
they make they denial of the patent infringement. Adobe must prove damages and infringement, and also must prove why they waited
so long to defend their patent. Very key.
It appears that Macromedia has strong case and a very good chance of winning this lawsuit by strongly:
a) arguing that the Adobe's delay in bringing legal action has prejudiced Macromedia's actions to defend itself which can result in
nullifying past damages by Macromedia.
b) arguing that Adobe's 4 year plus delay in waiting to bring legal action led Macromedia to believe that the Adobe's patent fell into the
public domain use by many companies and would not be enforced. This can result in denial of all claims and damages with respect
to a Macromedia and also any other company that Adobe may go after.
c) arguing that the Adobe's patent is not valid because Adobe has allowed many dozens if not hundreds of software companies to
implement and continue to use and implement similar tabbed palettes without being sued by Adobe for infringement in the past 4
years.
d) arguing that the Adobe patent was improperly issued over invalidating prior art (Macromedia appears to have done this).
e) arguing that Adobe has and continues to allow third party developers to implement or develop products and plug-ins that have
similar or identical tabbed pallettes for use in Adobe and Adobe compatible products. Since Adobe allows third parties to implement
their patent tabbed palettes in non-Adobe products, Macromedia can argue that Adobe doesn't have grounds to sue for infringement
when it allows third party developers to implement its patent tabbed palettes in third party products without infringement. The
question is - what is the specific legalese in Adobe's third party plug-in SDK. This specific area could be Adobe's achilles heel in any
trial.
Essentially, Adobe must pursue all infringers to prove, quantify, and qualify damages, and not only go after one such specific infringer
as Macromedia, but all others, otherwise it can be seen as singling out a competitor, and letting others off the hook.
Pursuing every infringer can be very costly to Adobe, thus the probable reason for delaying all these years. The 4 year delay leads me
to believe that Adobe knows they have a weak case because Adobe plug-in developers have been implementing similar or identical
tabbed palettes for years in their add-on products. Macromedia being one of them.
Since many third party companies have implemented an Adobe compatible plug-in architecture that allows for use of Adobe
compatible plug-in product that use tabbed palettes, Macromedia can argue that Adobe has forfeited its rights to claim infringement
or seek damages because Adobe has publicly accepted the use of the tabbed palettes by numerous third parties.
Adobe has also gained considerable brand benefit without damages over the past four years by becoming a standard with the
assistance from these third party plug-in developers. This substancially weakens the case against Macromedia.
Adobe would have to go after Macromedia, Corel, Jasc, Quark, Microsoft, and many other companies that have implemented their
products to accept third party Adobe plug-ins that contain tabbed palettes. In effect, Macromedia can argue that Adobe let the patent
fall into the public domain use by allowing third party plug-in developers to implement the patent tabbed palette look and feel and
technology into their products without worrying about being sued for infringement by Adobe.
To answer how it affects Totally Hip. It allows smaller players a chance to gain some attention while the bigger players waste
everyone's time with a frivolous lawsuit.
I believe this lawsuit will backfire on Adobe and developers will begin to bouycot Adobe. Macromedia have become too powerful and
popular, and Adobe knows it.
If someone was infringing our patents, you go for the throat right away. Adobe didn't and you know what they say?
You snooze you loose.
I guess we will wait ot see how this plays out.
I hope this helps answer your questions.
Randall McCallum
CEO
Totally Hip
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He is always willing to answer e-mails. Totally Hip makes the award winning QuickTime Authoring tool called LiveStage Pro. The
next version will have extensive Flash support.
If people are selling, it will be short lived. |
