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(JD Supra)   Patent troll ordered to tell jury about Mr. Sham. Wow, that judge has balls   (jdsupra.com) divider line 21
    More: Cool, Eastern District of Texas, Federal Circuit  
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6051 clicks; posted to Geek » on 26 Sep 2013 at 2:40 PM (44 weeks ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



21 Comments   (+0 »)
   
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2013-09-26 12:59:15 PM
You were told you were going to love his nuts.
 
2013-09-26 02:28:32 PM
I'm glad that judges are starting to get wise to this crap.  The judicial smackdowns of Prenda Law and Rightshaven were just the beginning.
 
2013-09-26 02:53:37 PM
hah I want to hear the 'expert' testimony on this one

great judge
 
2013-09-26 03:03:19 PM

TuteTibiImperes: I'm glad that judges are starting to get wise to this crap.  The judicial smackdowns of Prenda Law and Rightshaven were just the beginning.


Yep.  Judges don't like it when you submit forgeries as evidence.

I knew about Prenda, but hadn't heard about rightshaven (which I read as right shaven).  Thanks for making sure I would completely waste the rest of my afternoon.
 
2013-09-26 03:08:51 PM
I see what you did there, Subby.
 
2013-09-26 03:12:20 PM
That's one judge who won't mind having to do the trial all over again, if the article is correct in what it is reporting.
 
2013-09-26 03:16:26 PM

sprgrss: if the article is correct in what it is reporting.


I can't get past the poor writing to figure out what's going on.


/your blog, it sucks
 
2013-09-26 03:48:17 PM
img59.imageshack.us
 
2013-09-26 03:49:25 PM
I got stumped a North Dakota California.
 
2013-09-26 03:49:30 PM
My understanding of this is that NPS bought the patent after it had asserted ownership of the patent and sued someone for infringing.

The defendant tried to dismiss the case because of the shady timelines, a sham venue, and sham employees of NPS which it claimed gave it standing to assert the patent, but the judge decided to deny the dismissal. Instead, he's going to make NPS prove that it can assert the patent by making them explain why there was a sham venue, why there were sham employees, and why NPS thinks that its acceptable to assign a patent after they've asserted it. What's more, NPS can't do the explaining itself. It has to use experts. (ha!)

While the court costs for the defendant might be a negative, having a judge basically take 'innocent until proven guilty' to the logical extreme must be a thrilling experience.
 
2013-09-26 03:57:48 PM
This is be one entertaining trial/
 
2013-09-26 04:00:41 PM
"But your honor... showing that we are frauds will prejudice the jury!"
 
2013-09-26 04:08:32 PM

imashark: My understanding of this is that NPS bought the patent after it had asserted ownership of the patent and sued someone for infringing.

The defendant tried to dismiss the case because of the shady timelines, a sham venue, and sham employees of NPS which it claimed gave it standing to assert the patent, but the judge decided to deny the dismissal. Instead, he's going to make NPS prove that it can assert the patent by making them explain why there was a sham venue, why there were sham employees, and why NPS thinks that its acceptable to assign a patent after they've asserted it. What's more, NPS can't do the explaining itself. It has to use experts. (ha!)


Yep, with one slight correction... It appears to be quite likely that NPS bought the patent prior to suing for infringement. Basically, there was an assignment contract from MHP to NPS, signed by MPH on day X. NPS filed suit on day Y. NPS signed the contract on day Z, after bringing suit, so it would appear that they asserted it before they owned it...
... but, under Texas contract law, the contract need not be signed by NPS if there's mutual assent of the parties. This is actually a common provision - in many states, contracts only need to be signed by the person the contract is going to be enforced against. So, for example, if MHP wasn't going to enforce the contract against NPS ("take my property or I'll sue you to force you to take my property"?), then it didn't need a signature. Anyways, in Texas, that mutual assent can be shown by conduct of the parties, including NPS filing suit on day Y.

In other words, if the jury looks at the contract and determines that both MHP and NPS believed that, as of day Y, NPS owned the patent, then NPS did own the patent on that day, and there's no lack of standing. Hence why the judge denied the motion to dismiss because it's not cut and dried and the jury has to make that determination.
But, NPS still has to waste a bunch of time (and money) proving to the jury that they owned the patent, something that would never have happened if they had been diligent. It'll also make them look like jerks, particularly when they then have to also explain the whole forum issue and "sham" closet office.
 
2013-09-26 04:10:38 PM
Oh, and I should add that there's almost no way the jury could come to any other conclusion than that NPS and MHP mutually agreed that NPS owned the patent, because they're both shell subsidiaries of a parent company. Why would they ever disagree on that?
 
2013-09-26 04:37:53 PM

Theaetetus: The defendant tried to dismiss the case because of the shady timelines, a sham venue, and sham employees of NPS which it claimed gave it standing to assert the patent, but the judge decided to deny the dismissal. Instead, he's going to make NPS prove that it can assert the patent by making them explain why there was a sham venue, why there were sham employees, and why NPS thinks that its acceptable to assign a patent after they've asserted it. What's more, NPS can't do the explaining itself. It has to use experts. (ha!)

Yep, with one slight correction... It appears to be quite likely that NPS bought the patent prior to suing for infringement. Basically, there was an assignment contract from MHP to NPS, signed by MPH on day X. NPS filed suit on day Y. NPS signed the contract on day Z, after bringing suit, so it would appear that they asserted it before they owned it...
... but, under Texas contract law, the contract need not be signed by NPS if there's mutual assent of the parties. This is actually a common provision - in many states, contracts only need to be signed by the person the contract is going to be enforced against. So, for example, if MHP wasn't going to enforce the contract against NPS ("take my property or I'll sue you to force you to take my property"?), then it didn't need a signature. Anyways, in Texas, that mutual assent can be shown by conduct of the parties, including NPS filing suit on day Y.


How does the fact that the signature place was stamped "Accepted by" above it change things. I think because of this wording it could be argued that there was not even acceptance until it was signed.
 
2013-09-26 04:47:19 PM

DetrimentalScience: How does the fact that the signature place was stamped "Accepted by" above it change things. I think because of this wording it could be argued that there was not even acceptance until it was signed.


No change at all. Note that it doesn't say "Accepted on date Z by", so there's nothing that says it wasn't accepted earlier in time and simply endorsed by the signatory. Accordingly, it doesn't contradict an inference that the patent ownership had changed by date Y when they sued, that inference coming from the mutual conduct of NPS and MHP.
Really, the signature block is a red herring: the key is mutual understanding of the parties to the contract, and both NPS and MHP appear to agree that the contract was valid and changed ownership on or shortly after date X. A third party intruding into that and claiming that wasn't the understanding of the parties is going to have a high bar to pass.
 
2013-09-26 06:49:42 PM
content6.flixster.com
That's Captain Sham, you landlubbers!
 
2013-09-26 08:15:32 PM
For reference, this is the same judge from Oracle v. Google who apparently has programming experience.
 
2013-09-26 08:50:14 PM
THE COURT: You're on the verge of losing this entire motion, and going to the Federal Circuit, with a lot of money against you. So if you want this to live to fight another day, you ought to listen to me for a moment. The best you can hope for is that the jury's going to decide this; but for the jury to decide the sham nature of this closet in Texas, they're going to have to understand why somebody would want to do this. So an expert is somebody you need to have explain it. This is going to be part of your case.
[COUNSEL]: No, Your Honor, it's not.
THE COURT: Well, then, it will be part of their case.
[COUNSEL]: Why is that relevant to the issue of patent infringement?
THE COURT: If we're going to try ownership here, and all of these issues about whether or not this guy was a sham, or not, the jury's got to understand the background of why it was or was not a sham.
Because I farking said so.

What the judge would have said if he had any balls.
 
2013-09-27 03:48:48 AM

Flab: TuteTibiImperes: I'm glad that judges are starting to get wise to this crap.  The judicial smackdowns of Prenda Law and Rightshaven were just the beginning.

Yep.  Judges don't like it when you submit forgeries as evidence.

I knew about Prenda, but hadn't heard about rightshaven (which I read as right shaven).  Thanks for making sure I would completely waste the rest of my afternoon.


Oh good, I'm not the only one who read it that way.
 
2013-09-27 06:25:13 AM
ACTIVIST JUDGES AND THEIR LIBERAL BIAS AGAINST (fake) JOB CREATORS

Or whatever that actually said.
 
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