By: nystalker $$$
Reply To: 79997 by wlcnyc $$$ Thursday, 11 Oct 2001 at 12:13 AM EDT
Post # of 80018
I was personally at the hearing today and was not as happy as the others were when we went to break. I think the destruction of records was a red herring and won’t mean too much to the judges decision. By the way, I believe this case (not us or Disney) is in excellent hands with the judge. He is extremely thoughtful and judicious. I thought their expert witness was well educated (a doctor from UCAL), well spoken, and held his own, comporting himself well. This was a classic battle for the ages. Their expert was the young, good looking, brilliant doctor and our expert was the overweight, undergraduate, who had been around the block a few times more than the young doctor.
The biggest issue was that Disney believed that the patents only applied to Absolute URLs and Disney said that their version used Relative URLs (actually “stripped down web pages”), not Absolute URLs . Their expert said if you tried to run ACTV’s patented program with the relative URLs Disney uses, it would not work for 4 different reasons. The expert said he could fix ACTV’s patented program (the code for this program was found in Appendix A) to work for relative URLs but it would take hours, maybe days to fix the program. He said he hadn’t tried to write a program like this to make it work because it would open a can of worms but he thought he could do it.
In court they referred to three figures/diagrams (I think they referred to the different patents but I could be mistaken) and their expert originally felt that all needed the streaming data to include absolute URLs to work but he did reverse himself on one of the figures and said that that figure did not need the use of URLs at all but that it would have problems with synchronization. That was one for the good guys but we still had a problem with the two other patented diagrams showing what looked like they needed absolute URLs or they would not work. Disney’s contention was that if the Patent wasn’t applicable for Relative URLs, it was not enforceable.
Our expert came up a second time and things weren’t going well initially. I had a lump in my throat as the judge, at 3:40 pm, said he was strongly formulating his thoughts. I really thought we may be done for but the judge basically said we were 2/3 done for since relative urls did not work for two of the diagrams but 1 of the 3 programs appeared to work if no URLs were put in at all. Then things changed dramatically. ACTV’s expert referred to a technical book and said that a person “skilled in the arts” would know how to change the program in Appendix A to accept relative urls instead of absolute urls. The change required one line modification and two new lines of code, NOT the days Disney’s expert said it would require. ACTV’s expert said it took him about 30 minutes and the program now worked for relative URLS. It was AWESOME and Disney did not cross him on this and their expert did not come back on and try and refute this. The shoulders for all of Disney’s nine lawyers slumped (7 were working the case and two were previously hired to initially determine if Disney infringed on ACTV patents. ACTV’s attorneys certainly thought this paper was deeply flawed)
This is not a done deal by any means but this was testimony focusing on the substance of today, that was not expected, and totally turned the ballgame in ACTV’s favor if the judge believes the patents cover relative urls because they work if there is only minor modifications to the source code in Appendix A.
I really think Disney’s attorneys have put much effort into this case and they have certainly drawn a line in the sand, based on the number of lawyers and work that needed to be accomplished to get to this point. ACTV usually has about 5 lawyers with three sitting at the main table to Disney’s five. Both lead attorneys are veterans who appear to have courtroom presence but are a little lacking in the technical area. The judge actually asks better questions sometimes than the attorneys.
Where do we go from here?? The hearing is not over. It finishes tomorrow from 3:30 – 5:00 pm with closing arguments (I’ll try to be there). The judge comes back with his bottom line opinion NLT October 24, possibly with the more complete full opinion later if he has yet to complete it.
Both sides indicated that they will file for Summary Judgment (SJ). They need to file by Nov 7th, each needs to file answers for each others SJ by Nov 21 and reply papers are due by Nov 30. Oral Arguments will be held for SJ on Dec 10 at 11am. The judge says to expect a two week turnaround.
There will be Discovery on the Damages ($$$$) which need to be submitted by Oct. 31st.
The WTC Disaster, although it delayed the case for a couple of weeks, will not slow it down now. Criminal cases are at a virtual standstill as there is only ONE case that really matters. That means the court docket is wide open and this judge wants to keep things moving while its fresh in his mind. |
