April 18, 2008
IP Litigation, Cease and Desist Letters, and One Good Reply Letter to Monster Cable
Posted by Alan Childress
Jeff recently opined that IP law and lawsuits is one area of practice, he observed, where there are marketing, sales and PR incentives, beyond the lawsuit at hand and its objectives, to pursue expensive and complicated court remedies. "It's because the fact of the litigation casts a cloud on the allegedly infringing product. ... Indeed, dollar for dollar, it may be one of those instances in which legal fees really do bring some bang for the buck in terms of the top line. So it's nice to see that a well-respected judge has used the only effective tool there is to regulate this -- a finding under Rule 11."
Another possible tool, before judges get involved, is the well-turned response to the draconian cease and desist letter. Consider one that Monster Cable recently received from pesky competitor Blue Jeans Cable, whose president Kurt Denke is a lawyer and not afraid of a lawsuit, after Monster had sent it a lengthy and illustrated cease and desist letter. Audioholics Online A/V Magazine printed the reply in full, in this post, and Miami's Michael Froomkin found it "fun to read" here. It is full of detail and patent/tech substance, but in any event starts nicely with:
RE: Your letter, received April Fools' Day
Dear Monster Lawyers,
Let me begin by stating, without equivocation, that I have no interest whatsoever in infringing upon any intellectual property belonging to Monster Cable. Indeed, the less my customers think my products resemble Monster's, in form or in function, the better.
Then Denke was interviewed yesterday at this site about this whole matter.
In his own post, Jeff added that "I used to swear that in some of our patent cases the lawyers for both sides had a 'nasty discovery dispute letter' quota that they had to fill...." Maybe some of this can be headed off at the pass with detailed, challenging and inquiring reply letters earlier in the skirmish. The only thing I might have added is some language to the effect that the writer would of course regard a failure to provide the requested information, and substantiation to the outrageous and sweeping assertions in the cease and desist letter, to constitute a waiver of such claims and certainly of the fact of a valid cease and desist letter itself.
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Thanks for your very interesting insights into the process of C&D letter practices in IP litigation. It's an area that my current empirical work is focused on, so I hope to add to this debate (as soon as the forthcoming Law and Society Association meeting in Montreal, where I will present my paper on enforcing copyright and trademark rights--patent paper to follow).
But I want to at least provide one preview to my findings to add to both of your insights: IP lawyers who enforce clients' rights are perfectly aware that such rights are enforced for many purposes OTHER than the strict merits of the IP claims. One thing that's interesting is how the lawyers rationalize this. It's actually a nuanced and interesting discourse that reflects both the ambiguities in substantive IP law as well as the rhetorical resources of experienced lawyers who are perfectly capable of justifying their practices on behalf of clients--and who have very few, if any, ethical problems with vigorous enforcement of even facially "weak" IP claims.
Jeff and I both practiced for a number of years before our recent jump into legal academia. I was an IP litigator. So perhaps we are not surprised by some of the findings in my study. Yet, I continue to be intrigued by what I am learning about an area of practice that I presumed to know a lot about, but am learning more about now that I have some distance from it.
Posted by: Bill Gallagher | Apr 18, 2008 11:04:17 AM