“I Sometimes Rather Miss It”
This story has been making the rounds through the legal blogs today. Monster Cable sent Blue Jeans Cable a cease and desist order for Blue Jeans’s “Tartan” brand of HDMI cable connectors. Blue Jeans’s president, a former lawyer, replied thoroughly and in force. While I have no real idea about the actual legal merit of most of the assertions or implications of the letter (I haven’t taken Trademarks or Patents yet), it does sound good, and it takes Monster to task.
Here are my favorite parts:
Honorable Mention: “…it is easier today for your competitors to use collateral estoppel offensively than it ever has been before.“ This is just for my own amusement — “offensive non-mutual collateral estoppel” is the most obfuscated legal term I’ve been able to find in law school. (And I’ve been looking, believe me.) So I get a kick seeing it (or its variation) used in real life. Bonus points for pointing out the modern trend of abandoning the mutuality requirement — this will help me remember it for my civ pro exam in two weeks.
Bronze: “If you expect to persuade me, you had better start making full, open and honest disclosures; I will find out the facts sooner or later in any event, but the impact upon your credibility will not be repaired.“ Blam! Don’t beat around the bush — not only will it be worthless from a legal standpoint, it will be bad from a credibility standpoint. It must sting, being given friendly PR advice by the party you’re threatening with a lawsuit.
Silver: “Not only am I unintimidated by litigation; I sometimes rather miss it.“ What’s the matter, McFly? Are you… chicken?
Gold: All of paragraph 17 (beginning “I must also point out…”). Not only has he studied the patents Monster sent him, but he also looked through their back catalog of patents. And guess what? He found an expired patent that is closer to Blue Jeans’s cable than any of the current ones that Monster sent him. So, even if, through the grace of God (and a hefty bribe?), Monster is able to convince the court that these patents cover Blue Jeans’s cable, then this expired one must, by the same argument, constitute prior art, and there’s no infringement. Booyah.
Whatever comes of this exchange, I can’t imagine it being good for Monster, especially in light of Mr. Denke’s promise to seek a final judgment rather than to settle. Having worked at a major electronics retailer, where we were expected to push Monster’s terrible, overpriced products on the unsuspecting masses, I must confess that I hope it turns out very bad for them.