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LegalGround >> Getting deposed AGAIN.


12/21/10 4:35 PM
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Former employer is asserting one of the patents I was involved with against another huge company.  The last one was exhausting.  Not looking forward to this again. 

On the bright side, seems like my former employer likes my work as they keep asserting it against others. 
12/22/10 12:05 AM
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Edited: 12/22/10 12:12 AM
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LOL

I like it.

This is the lawsuit:  http://www.patentlyapple.com/patently-apple/2010/10/patent-infringement-lawsuit-motorola-vs-apple-illinois-case-2.html

My patent is count 6.  I'm not the inventor; I'm the attorney who filed the patent application. 

 
12/22/10 9:28 AM
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Cookie Monster
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You are too crafty to fall for their tricks and traps. You'll do fine.
12/24/10 12:06 AM
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Xtina
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eee. best of luck!
1/8/11 7:45 PM
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Cookie Monster
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And?? how'd it go?
1/10/11 9:29 AM
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RexKwonDo
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It could be worse, you could be getting deported again.
5/5/11 10:02 AM
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Cookie Monster
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ahem


how'd it go?
5/10/11 9:24 AM
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 No word on this.  I've been wondering myself, but this is how the last one went.  A year went by after the first call, then all of a sudden it got real hot. 

They could have settled for all I know, though. 
6/5/11 8:06 PM
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Got word of this today; Apple has requested to depose me.  They want to do it the 14th and 15th of this month.

FCUK! 

Fortunately there was a HUGE case (Therasense) decided this past week at the CAFC which did away with virtually all inequitable conduct claims in patent litigation. 
6/8/11 3:00 PM
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Cookie Monster
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Will that preempt the depo?
6/8/11 7:08 PM
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Cookie Monster - Will that preempt the depo?
No, but it ends a lot of the witch hunt aspect of the litigation, and in patent litigation generally.

When you file a patent application you have a duty to disclose any references, publications, or other information that is "material" to the patentability of the invention.   That duty applies to any and all attorneys involved with the patent application and the inventors. 

If you fail to disclose something, it is considered to be inequitable conduct, basically fraud on the patent office, and the patent can be held unenforcible as a result.   Basically if you withhold information relevant to the patentability of the invention, you lose your patent rights.    It helps the patent office be efficient, so it's a fair standard - you can't expect patent examiners to know everything (sometimes I wonder if they know anything). 

But somehow over the last decade that standard has morphed into a plague - courts have been applying a "should have known" standard.  So basically if you were negligent in disclosing something, the courts would consider it to be inequitable conduct.    That fails to understand the reality of patent practice.   Patent attorneys will see literally hundreds of references a year (I have 5 to read tonight, all regarding circuits that protect against electrostatic discharge).   It's not possible nor reasonable to expect an attorney to remember everything he or she reads, even from one week to another, it's just too much to remember; we read them looking for specific things, not to memorize them. 

Since a successful showing of inequitable conduct results in the harshest penalty, defendants invoke it routinely; you have reputable attorneys charging other reputable attorneys basically with fraud.  The climate had become such that if a patent defense attorney did not assert inequitable conduct, it was virtually grounds for malpractice. 

It has clogged up the courts, caused patent applicants so cite all kinds of irrelevant references and publications, basically burying the patent office in references that are of little actual materiality out of fear of having an inequitable conduct claim be successful. 

What the CAFC last week said has needed to be said for a long time; inequitable conduct can only be found if there was a clear intent to withhold information, and that information would have caused the patent office to not issue the patent.   No more negligence standard of intent, no more "anything the attorney had read ever must be cited" level of disclosure. 

In the case I'm being deposed on I already know Apple is asserting that the inventors withheld information.   But I expect a fishing expedition when they depose me, regardless.  Who knows, the SCOTUS may take that case from the CAFC and modify it.  That could easily happen by the time this lawsuit actually goes to trial. 

 
6/14/11 4:29 PM
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 Well, no word on this - I am not being deposed today or tomorrow, apparently. 

Just to give you an idea as to the complexity of this, there is a diagram of the litigation, the patents involved, and where they are being asserted here:  http://www.scribd.com/doc/44759893/Apple-vs-Android-10-12-02

18 patents being asserted by Motorola, 24 of Apple's, and 8 by HTC.  Each patent took 3-10 years to get granted, with a long paper trail being generated over that time period, and will involve 4-10 depositions each. 




7/6/11 7:08 PM
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Deposed today.  Holy frick does my head hurt.
7/12/11 1:01 PM
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Cookie Monster
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Besides fatigued and annoyed, how'd it go?
8/12/11 4:16 PM
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Fine, it was a pretty solid patent and I think they made a mistake picking me as the one to depose with regard to that patent.  The parties came to an agreement that they would get to depose only one attorney for each patent.  They picked me.  I didn't write it, and I wasn't the one who worked on it when it was allowed.  I only did some of the initial work on it after it was filed.  So it was a lot of hypotheticals and what I thought something might mean, and I just had to qualify my answer every time. 

Now the real question is will they pay me as agreed.  The written agreement was for $175/hr for the prep time.  I invoiced them for 7 hours of time (I can't get paid for the actual depo, just the prep time). 

I don't have a salary, I get paid a strict percentage of what I bill every month.  So missing two days of work really does cost me.  The last time I did this I incoiced them as per the written agreement, and never heard a word or saw a cent. 

At the rate at which Motorola is suing people these days, there is a good chance I will get deposed again, and if they don't pay me this time, forget any agreements - the other party can subpoena me and who knows what I'll say. 
10/4/11 12:04 AM
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Buddhadev
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Damn bro, sucks that they shafted you!
10/5/11 5:05 PM
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Cookie Monster
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Sweet Jesus that sucks!
10/13/11 2:49 PM
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 I sent a letter asking about the payment a couple days ago.   They responded that they had not done anything with my invoice since they were missing some paperwork - they just needed a W-9.   So since July, when I gave them the invoice and a copy of the contract where they agreed to pay, they have not said a peep about the W-9.

So I filled it out (took all of 60 second, if that), and sent it back to them.  They told me it would go into their October bill to the client and I would get paid as soon as the client paid them.  Unfortunately I do patent work for the client and know their payment cycle is on the order of 6 months. 

At least I did seem to find someone in the firm that did the depo and gave me the contract who seems to give a shit about this. 
10/15/11 12:20 AM
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Buddhadev
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^^^Scott, if they screw you over on this, would you have grounds to sue *them*?
2/8/12 2:42 PM
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Buddhadev - ^^^Scott, if they screw you over on this, would you have grounds to sue *them*?
Yes, we have a written contract. 

Still no payment, btw. 
 
2/14/12 5:50 PM
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Cookie Monster
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Buddhadev - ^^^Scott, if they screw you over on this, would you have grounds to sue *them*?
Yes, we have a written contract. 

Still no payment, btw. 
 


Perhaps a not-too-thinnly-veiled shittygram is in order. Or in the alternative a more reserved letter of inquiry.
3/2/12 9:20 PM
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 Check arrived today - 8 months later.  
7/16/12 4:05 PM
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Edited: 07/17/12 10:00 AM
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 OH FOR FUCKS SAKE

Got called earlier today and looks like I'm getting deposed in a third case.  This one is also Motorola v. Apple, but in S.D. FL.  

Ugh.  At least they're going to pay more this time.  

And I have reason to believe a 4th one is coming, too. Motorola took some action in a patent case I got granted for them, after we got it allowed and turned it back over to them, that indicates they intend to litigate it.  
 
8/13/12 11:30 AM
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Cookie Monster
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Well shit!

My advice is to prepare for a marathon, not a sprint. Man that sucks.

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