December 2012

Apple v. Samsung: One Angry Man?

December 20, 2012

Juror #8: It’s always difficult to keep personal prejudice out of a thing like this. And wherever you run into it, prejudice always obscures the truth. 12 Angry Men In this business you got fifty ways you’re gonna screw up. If you think of twenty-five of them, then you’re a genius… and you ain’t no genius. Body Heat (“G”-rated version of quote from the movie) ____________________ If you’ve noticed a lawyer with a paranoid, haunted look, and you’re wondering why, the answer may be that the lawyer is thinking, “what I have forgotten? Having a waived something I shouldn’t have?” The last time I wrote about the lawyer’s nightmare of waiver the waiver may have ended up costing Microsoft $300 million. In that case, i4i’s patent suit against Microsoft, Microsoft’s appeal of damages was made more difficult  by its failure to move for judgment as a matter of law on the issue. As I said in my post on that case, “trials are a virtual waiver landmine.” Now, a waiver in Apple v. Samsung may outdo the cost of the waiver in the Microsoft case by $700 million. In Apple v. Samsung a California federal jury awarded Apple over $1 billion for infringing patent and trade dress rights associated with the Apple iPhone. Following trial the jury foreperson, Velvin Hogan (pictured above), became a media star, granting generous interviews to the press. Some…

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You Want to Blog for Huffpost? Well, I Have to Warn You – We’re Pretty Darn Selective!

December 13, 2012

A lot of people blogged for The Huffington Post for free between 2005 and 2011. But after Huffpost was sold to AOL for $315 million in 2011, they had second thoughts about their generosity. They filed a class action seeking compensation for their work based on claims of unjust enrichment and deceptive business practices, seeking one-third of that money for the bloggers. The trial court, and now the Second Circuit, rejected their claims. As the Second Circuit stated early this week in Tasini v. AOL (2d Cir. Dec. 12, 2012): Plaintiffs’ basic contention is that they were duped into providing free content for The Huffington Post based upon the representation that their work would be used to provide a public service and would not be supplied or sold to “Big Media.” Had they known that The Huffington Post would use their efforts not solely in support of liberal causes, but, in fact, to make itself desirable as a merger target for a large media corporation, plaintiffs claim they would never have supplied material for The Huffington Post. The problem with plaintiffs’ argument is that it has no basis in their Amended Complaint. Nowhere in the Amended Complaint do plaintiffs allege that The Huffington Post represented that their work was purely for public service or that The Huffington Post would not subsequently be sold to another company. To the contrary, plaintiffs were…

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Baker v. Goldman Sachs – The Business Deal From Hell

December 10, 2012

An interesting “David v. Goliath” jury trial is scheduled to begin in Massachusetts U.S. District Court Judge Patti Saris’s Boston courtroom this week. The case has received a fair amount of press coverage, but not nearly enough in my opinion.  (Steven Syre Boston Globe column today, July 2012 NYT article). The events in Baker v. Goldman Sachs date back to the heady days of the dotcom era. In short, James and Janet Baker (pictured here) spent much of their careers pioneering speech recognition technology which they commercialized under their company Dragon Systems, based in Newton, Massachusetts. The Bakers were legendary in the Massachusetts tech community in the 1990s – home-based technologists who came up with a promising-today, sky-is-the-limit-tomorrow technology. In 2000 they sold Dragon for almost $600 million to Lernout & Hauspie, a Dutch company. Unfortunately, they were paid fully in Lernout stock, and almost immediately after the sale Lernout was discovered to have been cooking its books.  The stock went to zero, and so did the consideration the Bakers received for their company. For the Bakers, this was a business catastrophe of mythical proportions.  One day they owned an immensely valuable company that that owned technology they had spent decades developing.  The next day they had sold the company in exchange for almost $600 million of Lernout stock.  Within a few months, their company was gone and their stock worth…

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