Hallo!
Es gab neben dem letzten Quartalsbericht, den ja anscheinend alle verstanden haben und es für alle auch keine zu erörternden Fragen gibt, jetzt einige neue Gerichtsschreiben und Anträge von den prozessierenden Parteien. Unter anderem dieser Antrag von Acer:
Der User ronran (Agora) hat hierzu in einer persönlichen Mail an den User Wolfpackvolt (Agora) Stellung genommen:
From ronran (Subject: Your request re Acer's motion)
posted on Oct 25, 10 11:07PM (Log in to use the IP Check tool) [?] PM from Ron, - This is beyond the call of duty. Everyone should be thankful we have Ron on this Agora board for the valuable information he gives us. - Wolfpackvolt - - Date: Oct 25, 10 10:28PM From: ronran Subject: Your request re Acer's motion.... Hi, Richard: Sorry for the delay, but I just now got around to looking at the Acer stuff. I'm usually able to explain legal stuff in a pretty simple way, but, with apologies, this particular issue as raised by Acer is just too technical to lend itself to any kind of simplified version. Below is my best attempt to synthesize it down a bit. Feel free to put it on Agora if you wish, but it will probably put everyone to sleep even more quickly than my usual posts. Hope you are well. Ron
============================================ There are two documents at issue. One is “mac336", (described as a “336 interview summary of Moore” that contains “interpretation of language in a then-ongoing re-examination of the ‘336"), which was sent from Mac Leckrone to Dan Leckrone, and copied to Roger Cook, Henneman, and other attorneys. The other document is “MOORE0058", which is described as an email in the same thread, sent by Moore to the same recipients. It should be noted that these documents are dated in August 2008 and were thus prepared during the J3 litigation, i.e., not during the current T3 cases. Both of these documents were voluntarily produced by Moore (presumably through his attorneys), along with several hundred others, in response to a subpoena issued to Moore by Acer in the current litigation and in conjunction with the taking of his deposition, which appears to be set for November 3. In other words, Acer is attempting to acquire documents in Moore’s possession that Acer can then use to question him during his deposition testimony. It should be remembered that Moore, personally, is not a party in the T3 cases. In the motion Acer has now filed, Acer asserts that Moore himself (again, presumably meaning through his counsel) did not make any objection to the production of the documents, and that TPL did not object until after production was made. Additionally, Acer asserts that TPL has not, during any of the “meet and confer” conferences or other communications between counsel, demonstrated any type of legally recognized “relationship” with Moore that would allow TPL to itself claim a privilege as to the documents — interestingly, Acer states that it has not been presented with any agreements between TPL and Moore (presumably thus including the Master Agreement). Acer also asserts that TPL has not demonstrated a “common interest” as defined in the law that would provide a privilege or similar protection for the documents. TPL, of course, asserts the contrary. The issue boils down to whether documents from a prior case that were exchanged between a party (TPL) and its “star witness” (my term), Moore, and likely prepared either at the request of, or in order to assist, the party’s attorneys, are validly discoverable as non-privileged material in a subsequent case dealing with virtually identical issues (albeit involving different alleged infringers). These documents would unquestionably have been privileged material during the J3 cases (i.e., if one of the J3 had directed a similar subpoena to Moore during that litigation), so, in essence, the issue seems to revolve around whether Acer can now validly assert some change in the relationship between Moore and TPL that would operate to legally extinguish or nullify that privilege. Although Acer’s brief is fairly well-written, it appears to me to take a position that is extremely technical and theoretical, and which, conversely, does not take into account the obvious and practical reality that, as to enforcement of the patents, TPL and Moore still do in fact have a “common interest” despite their newly evidenced enmity. Acer asserts that the law on point in this context requires that a “common interest” must be “legal” in nature, and that being merely “commercial”, or arising out of “a desire to reach a favorable outcome in litigation”, does not suffice — however, I would need to research that point to determine if Acer is correct. Trying to keep it as simple as possible, it seems to me that these documents were prepared by and between people who, at that time, were “on the same team”, and who, despite their current infighting, still are a “team” in that context. To allow production of the documents would thus undermine that effort, which was undertaken either at the request of, or in order to provide assistance to, the “team’s” attorneys at that time. As a result, it is difficult for me to believe that the court will side with Acer — however, I must issue the usual disclaimer that I’m not a patent lawyer and am thus outside my field. Having said the above, some interesting inquiries arise. If Moore is still interested in money produced from MMP revenue, why would he and his attorneys voluntarily produce sensitive documents, without objection, that might harm that effort? As to Acer, can the bell be “unrung”? Acer appears to have taken the appropriate steps to have the documents sealed for inspection by the judge, but, as a practical matter, someone among Acer’s legal and/or technical staff had to read the material in order to know that it might be problematic — thus, even if the judge rules in favor of TPL, can the content of the documents really be completely “forgotten”? There are lots more points that could be made, but all of this is speculation to a large extent. It will be interesting to read TPL’s response memorandum, which should give us a bit more insight. As always, we shall see.
Seine Vermutung: “It should be noted that these documents are dated in August 2008 and were thus prepared during the J3 litigation, i.e., not during the current T3 cases.”
Des Weiteren: “These documents would unquestionably have been privileged material during the J3 cases (i.e., if one of the J3 had directed a similar subpoena to Moore during that litigation), so, in essence, the issue seems to revolve around whether Acer can now validly assert some change in the relationship between Moore and TPL that would operate to legally extinguish or nullify that privilege.”
Es ist wirklich unglaublich, was dort ein angeblicher Anwalt (ronran) von sich gibt. Die besagten Dokumente wurden im August 2008 verfasst!
Die Einigung mit den J3 war allerdings schon im Dezember 2007!
Dies sollte auch ein Anwalt und User ronran wissen und derartige Vermutungen unterlassen!
Diese Dokumente sind somit nicht während des J3 Prozesses entstanden, sondern erst viel später!
Was Acer hier versucht, dürfte auf etwas ganz anderes abzielen. Grundsätzlich hat Acer behauptet, dass Sie die Patente nicht verletzen und Sie die Patente für ungültig halten!
Dies ist die Ausgangslage!
Wenn jemand jetzt die Einwände von Acer genau studiert, dann wird er feststellen, dass es jetzt um ganz andere Dinge geht. Geht es also nur noch um die Frage: Wir würden ja gerne eine Einigung erzielen und erkennen auch an, dass die Patente gültig sind und unsere Produkte verletzen aber wir wissen nicht, ob TPL der richtige Verhandlungspartner ist?
Nach Durchsicht der Anträge könnte man zu diesem Schluss gelangen! Mit freundlichen Grüßen
Alf
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