Jinjuku kinda beat me to it, and was perhaps a bit sharp I think for a first time poster here.
I read the entire letter and will agree that the author of it is an educated man, but then I have a habit of reducing long winded diatribes into a Reader Digest version. It seems to me that he said that Monster didn't supply enough proof that there was an infringement and asked for more information specific to the claim.
The problem with your readers digest version of events is that it does gloss over many pertinent components of Mr. Denke's response. And this quote is one such. Mr Denke said that he looked at all five patents that Monster supplied and that in his opinion none of them resembled any of his products beyond functionally required elements common to the cable itself. Furtherer, the one that resembled closest to his product was an expired patent. This is just a portion of his position which is required to be absorbed by Monster's lawyers so that there is no mistaking the depth of understanding and preparedness that Mr. Denke posses in this specific matter. Indeed, his very position is formed based in part by how Monster brought their arguements to him in the first place. His assement of the information provided to him in order to support Monster's claim was lacking significantly, and could in its nature undermine when studied thoroughly Monster's Position. This is what sets the tone for Mr Denke's response. The patents cited by Monster in their letter to him and the seriousness of the claims appear to Mr. Denke to conflict, and gives the appearance of Bully Tactics designed to confuse and obsfucate matters to the average joe who isn't familiar with that area of the law. This is important information your condensed version completely bypasses and could lead to quick and frivolous opinions of whats going on. The appearance of Bully Tactics is what instigated Mr. Denke's lengthy response, and arguably required it. He needed to communicate in a way that clearly indicates that if the claims in the first place are in fact Bully Tactics by Monster then he has seen through the guise of uncorrelated patent documents and a serious claim. Perhaps not such an easy thing to do in words without being ignorantly blunt, and perhaps as a matter of professional courtesy Mr. Denke chose not to be so ignorant. Further, he gave form to his position in defending his products in a methodical and thorough dissection of Monster's claims as supported by their own documentation to date. And that in his assessment of those materials, their claim, if not supported by more enlightening material is frivolous. It is important to note that the more thorough and nuanced Mr. Denke's response to Monster sends a clear and concise message to Monsters legal team, and that is simply; "I know what I'm about, do you?".
Lastly, he informs them that in the end, if they do win the litigation, they will never recover the loss of their legal fees so from a financial standpoint it would be in their best interest to drop the entire matter.
This statement taken out of the complete context of Mr. Denke's response gives rise to the impression that he is trying to make the issue unappealing based not on the merrits of the case but by the burden and headaches of legal action. A monetary thing that most people believe undermine any ethical or morale position of Mr. Denke's. When anything could be further from the truth. It is based on the merrits of his defence that he believes as he does and that as such, litigation would be the only recourse in his view if Monster cannot provide more enlightening documentation regarding their claims, as he will not at this stage comply with Monster's request. Hence when he says that the loss of legal fees would not be recovered should Monster's be the winner in litigation, he is reinforcing his view or perhaps feel of what I said earlier regarding the notion of a Bully Tactics. Monster's lawyers are clearly aware of the costs of such litigation, a fact Mr. Denke is clearly aware of and because he brings up the issue in the manner he does, it is a fairly clear statement, without being unprofessional and unsophisticated, that if their request is frivolous as it seems to a former lawyer in IP litigation, he is not confused in any way and he will not be scared into compliance.
The solution is very simple. If there is an infringement, then monster should prove it and Blue Jeans Cable should make the changes necessary to correct it. No need to take this to court and no money should change hands.
To the former part of this you are absolutely correct. However in the latter section is off base here. The whole reason for this in the first place is an issue of money changing hands. Monster would like nothing more then to evince to us that Tartan products are either distorting and harming the integrity of a Monster product, or that in some way Tartan cables by emulating the design of Monster Products is profiting without paying tribute to Monster. As such, it is without a doubt that in some way Monster has decided that based on what they believe they should be compensated in some way. In Mr. Denke's case, it is not solely dependent on the issue of money. His principles as a business owner are being called to question by the very allegation (if one is to be made in any case), something that could certainly harm such a small word-of-mouth orientated business. Further, when it appears to him that this whole issue appears to be a way of Bullying him into making him give Monster his hard earned money when he feels he owes them nothing of the sort. Such a tactic is morally reprehensible and as such elicits a strong reaction from Mr. Denke in the form of his response. Its important to note that to Mr. Denke, the potential financial legal losses to himself is much less then whatever it will be for Monster, and that to him win or lose in court, it is worth the price whatever it may be to stand up to such a disreputable tactic of any company trying to swindle him of his hard earned money. This calling of Monsters bluff so well structured and public is an attempt by Mr. Denke to prevent any changing of hands with the Money, and clearly define his companies business principles to those avidly following the outcome of this.
If it does go to court, then the looser should pay all legal fees for both parties.
I'm not certain here, though im fairly certain that if the arguement is feasible enough to merrit a trial then the winner suffers to pay their own legal costs. Unless of course the very burden of the costs is damaging enough to put the winner in peril. In which case, then I'm fairly certain that that is another course of legal action to be persued outside of the initial cases scope and influence. AKA counter-suit. Atleast thats been my observations from the several times ive been in court to defend myself, though I'm nowhere near qualified to say of a certainty, its just my gut feeling.
In any case, I'm not trying to take you to task for creating a readers digest of Mr. Denke's response, merely saying that by doing so you corrupt the intended effect of the full version. And that full version itself is complicated and nuanced enough to create misunderstanding to us average joes that will inevitably lead to heated debates, imagine the debates to arise from a too simplified and potentially misleading synopsis would create.
In any case, welcome to the board. Hopefully you're not insulted and stick around.
