Blue Jeans Strikes Back

[mike c]

Gee, now I'm deeply worried. I'm completely at a crossroads here. Here's my dilemma:

My actions to date have been taken on the advice of an IP litigator who went to MIT and the University of Pennsylvania and has 23 years of IP litigation experience, and whom I personally trust and know to be a flat-out genius. But some guy on this board named Logain, of whom nothing is known, disagrees with his advice. What a tossup. What should I do?

Kurt
Blue Jeans Cable
(yes, I'm out of town...couldn't resist checking in, though...)

you're screwed now, his name is Logain and is the final arbiter of all things IP.

He's Wolveraine.

 

[MDS]

As a non-attorney but having a little bit of experience with patents I don't see how Kurt's reply can be dismissed out of hand, as some have suggested. To me it's no different than when you submit an application and you get a stack of 'prior art' documents back from the USPTO and have to defend your claims against the prior art. He is essentially asking for the same kind of information.

I'll never forget 'Graber, et al in claim 5 teaches...so your claim 3 is invalidated...' Then the onus is on me to explain why Graber is saying something entirely different than me. (I was successful ) It's a game and in my view law is about subtlety and nuance and interpretation of the written word and he who has the best argument wins. It's actually a very interesting process.

 

[Chaon]

I do a IP work for a manufacturer, and in all honesty it is not inconceivable that I might try the same thing against a company that was screwing up our pricing (Send a cease & desist where I thought that our chances in litigation were under 50%). If I received a reply like Kurt's, my thinking would go like this:

1) CEO is an attorney- not a problem. They'll talk to counsel anyway.
2) CEO is a litigator- somewhat of a problem, as everyone knows litigators in general are combat-crazed, psychotic vampires (No offense intended Kurt).

but when I see 3) CEO declares that he will not settle, ever, and that if this goes, it's going to be in front of a judge, then all of my alarm bells would start ringing. That. is. trouble. That is bad news independent of 1) and 2), and with all three I'd know that I've just stepped into a declaratory judgment minefield.

Logain's post is technically correct in that Kurt asks for a lot of stuff that they don't have to give him, but he utterly misses the point that those requests are part and parcel of the wonderfully crafted, you-messed-with-the-wrong-guy, message of the letter. If I were Monster's counsel, I'd ignore all of those requests, and concentrate on the fact that I've just alleged infringement on five BS design patents.

 

[samwight]

What all of you need to recognize is that this letter is useless. All of the silly info this guy requested, ummm yeah, he is entitled to none of it. [...]
Perhaps this letter is impressive to rubes outside the legal profession that think "that'll show em", but I can tell you this letter exhibits embarrassingly poor judgment which will likely cost this company a lot of money.

It doesn't matter if he's entitled to all the silly info or not. I'm pretty sure you're mistaken about your conclusion that the letter from BJC was an expensive mistake.

A stubborn, principled attitude is believable from the owner of a small company, so it's pretty likely he'll fight, even if it is expensive. But you just have to read the forums to see that this can only be good for BJC's bottom line. It's huge publicity, and almost all good. With a few exceptions (probably paid by Monster to attempt damage control), everyone is on BJC's side, and many like me will order future cables from this company on principle. I only regret that they don't sell optical and computer cables.

On the other hand, Monster's decision to pursue will be made on a cold cost/benefit basis, and it's difficult to see how they can benefit by fighting on. Regardless of the questions of discovery, their case seems weak and frivolous, at least to a lay observer. But even if they win, they lose. I suspect their main goal in threatening small competitors with law suits is to bring their competitors' costs up or to drive them out of business. Either way, they want to keep the public from discovering Monster's ridiculous markup on cables, and it should be clear to them now that a public fight with BJC will do the opposite, and advertise their reputation as a corporate bully.

My prediction: Monster will let this die, and quietly continue selling $20 HDMI cables for $120 as long as they can get away with it. Come to think of it, this probably argues against the suggestion that the few Monster defenders in the forums are working for Monster.

 

[mike c]

while i dont practice law, i practice real life business...
and one of the best tactics is: ask the other party enough BS requirements (that require a lot of work) and they'll give up. really. it's been done to me, therefore i dispense it to others as well.

 

[KC23]

Ya gotta love the internet. Finally small business has a way to compete against the huge store front (high overhead) "Monsters" of the business world.

I found this thread most interesting. Especially the responses. I have also been involved in the patent business and this put a big smile on my face.

Monster won't be seeing a penny of my money ever again.

 

[markw]

Logain, are you a professional IP lawyer or patent lawyer by trade?

Jack

Perhaps he plays one on TV.

 

[buzzy]

Well done. Mr. Denke is absolutely right that the best long term strategy is to contest these claims. I hope he is quietly contacting other current and potential Monster victims to discuss strategy and coordinate a similar response among them, which is what it takes for that approach to really be effective.

 

[markw]

I do have one question on hte legal system, though.

I do realize that only a "Cease and Desist" order was sent to BJC.

IIRC, this in and of itself is NOT the act of suing them and taking them to court but merely a precursor to a lawsuit.

As such, what legal weight does it hold?

Can Monster, seeing that the puddle they jumped in might be deeper than they thought, simply ignore BJC and leave this C&D order hanging like the sword of Damocles over Kurt's head forever, or are they under some legal obligation to "rescind" it, say by sending a letter of apology or some such?

Is there any action BJC could take against Monster if they don't rescind it, say a harassment suit or something for frivolous litigation?

...inquiring minds want to know...

 

[stratman]

What all of you need to recognize is that this letter is useless. All of the silly info this guy requested, ummm yeah, he is entitled to none of it.

The letter was sent by Monster to establish notice of the patents, once the letter is received, mission accomplished. Damages can now accrue from the date of the letter.

This guy may have been an insurance litigator, but he is clearly clueless as to IP law. He probably spent days drafting this mess, time which was NOT spent managing his company...he sure showed them didn't he!!...LOL

He basically responded to the letter by requesting discovery, which only happens AFTER a suit is filed. Not to mention the fact, that all of the patent file histories are publicly available (he can get this info himself). Also, it is unlikely that he would EVER get details on licensing in court. Dates that products were used in commerce...LOL...completely irrelevant to patent cases. In essence, this is nothing more than a childish rant which will only encourage Monster to press their claim. If I were Monster's counsel there is no way in hell I would not follow through in filing suit now.

Perhaps this letter is impressive to rubes outside the legal profession that think "that'll show em", but I can tell you this letter exhibits embarrassingly poor judgment which will likely cost this company a lot of money.

Might be wrong, but it sure sounds like you're one of Monster's hired gun. I know many attorneys, happen to have some tough ones in the family and there's one common, fascinating, trait amongst all of them....arrogance.

 

[rexracer]

Just finished reading the letter, and this entire thread. Way to go,Kurt! I have avoided Monster for years, due to their inflated prices and shady advertizing. I don't think much about the Blue Jeans Cables I have hooked up to all the equipment in my condo, and as far as I'm concerned, that's the way it should be. I do know where I'll be going if and when I need something else that they have. I didn't realize how sleazy Monster really was untill the last couple of years, when I discovered what has apparently become SOP for that company, bullying anyone they can with lawsuits because "they have the power". I hope this does go to court, and Kurt can drag out some of the other bullying that's gone on in the past. That's one can of worms I'd love to see opened!

 

[tn001d]

Just heard monster cable might be buying Denon

 

[Ixian]

Found my way over here recently, decided to add my two cents.

From studying other C&D takedown cases, the group/person/whatever making the claim is required to back it up with enough information. Monster has completely failed to do this and Kurt has responded properly to a C&D takedown letter. Moster must either present enough of the requested information to convince Kurt that he is actually infringing on Monster patents or back down. They might also be able to litigate at this point, but might also have to provide the requested information and wait 14 days to give Kurt time to review and takedown his material if he becomes convinced by the requested information. If they can and attempt to go straight to court from what I've seen of this there's little chance Monster can win unless they're hidding a lot of actionable material (which would be illegal for them to do at this point, a form of patent entrapment if I recall correctly). As I see it, Monster can either respond to the request with convincing material, or face some serious problems because once it gets into court they can not win without providing evidence that they broke the law to bring BJC into court in the first place.

I am not a lawyer, I am a web designer/developer, but at my school a few law courses on this area were required to graduate and while that was a few years ago I still recall enough to be confident in my above assessment.

 

[jinjuku]

Logain's post is technically correct in that Kurt asks for a lot of stuff that they don't have to give him, but he utterly misses the point that those requests are part and parcel of the wonderfully crafted, you-messed-with-the-wrong-guy, message of the letter. If I were Monster's counsel, I'd ignore all of those requests, and concentrate on the fact that I've just alleged infringement on five BS design patents.

Chaon, thank you for pointing out the obvious:

Part of Kurts response with asking for patents/more detailed drawings/prior art, even though this is actually done in discovery *typically after settlement has failed*, is sending a message of the crap storm he is willing to unleash. If he is asking for this just in his initial response, can you imagine the level that Kurt will ratchet it up to when it comes to ACTUAL discovery?

The other thing that he is letting them know: 19 years in the industry = I have many attorney friends from all different walks of practice, that I play golf with. The only thing more powerful than a good attorney motivated by $$ is one motivated by moral outrage and his friends that are willing to help, for free or almost free, because it will be *FUN*

 

[jinjuku]

I do realize that only a "Cease and Desist" order was sent to BJC.

IIRC, this in and of itself is NOT the act of suing them and taking them to court but merely a precursor to a lawsuit.

As such, what legal weight does it hold?

Can Monster, seeing that the puddle they jumped in might be deeper than they thought, simply ignore BJC and leave this C&D order hanging like the sword of Damocles over Kurt's head forever, or are they under some legal obligation to "rescind" it, say by sending a letter of apology or some such?

Is there any action BJC could take against Monster if they don't rescind it, say a harassment suit or something for frivolous litigation?

...inquiring minds want to know...

I believe it is called "Laches". Just because they put him 'on notice' doesn't mean they get to hang it there for 10 years and then decide to go to court.

 

[Beans]

Active on many AV forums, but first post here. I have been reading a lot of thing hear love the reviews, but this story has got me to join and pull out my first post.

I just wanted to let Kurt know he has one more person who supports his position. Monster is poor corporate citizen and you are doing the right thing.

 

[Jack Hammer]

I do realize that only a "Cease and Desist" order was sent to BJC...

...inquiring minds want to know...

BJC did not recieve a Ceases and Desist order from any court. They recieved a Cease and Desist letter directly from Monster Cable.

My basic understanding of the difference is with the court order you are under legal obligation to comply. With the letter it has no power other than to make you aware that someone believes you are infringing on their rights and they wish you to stop.

The letter is notice that they have made you aware of their belief of the infringements and if it goes to court it shows they made efforts to bring to your attention that you are violating their rights and to resolve the issue.

In laymans terms, the letter is like telling your brother or sister to stop bothering you before you go crying to mom about it. Mom telling you to stop is the court order.

Jack

 

[dobyblue]

What an absolutely fantastic read! Great job Kurt and thanks for sharing with us.

 

[mpompey]

That's what I'm talking about!

Go get 'em!

 

[HiDefGuru]

In laymans terms, the letter is like telling your brother or sister to stop bothering you before you go crying to mom about it. Mom telling you to stop is the court order.

Jack

Love the analogy man!

I would love to see "Mom" completely B***h slap the little taddle tale, and maybe a Time-Out is in order to


**edit** Forgot one thing... Anyone else notice now when you Google "audioholics" the second link thats listed is THIS Article? Hows that for exposure!