Whether Acacia Research Corp.'s streaming media patent litigation against the adult Internet becomes a class-action suit could be decided by a federal judge in July, at which time the judge may also issue tentative rulings on construction of some of the patent claim terms the sides discussed in court this week.
Wrapping a two-day hearing in the ongoing Markman pre-trial process, U.S. District Judge Joseph Ware said he would begin hearing on July 7 the class action motion Acacia Research Corp. filed against the adult industry, after the Newport Beach, Calif. company said in December they wanted to move toward class action status.
Though all sides understood the battle over the Acacia patent group – which the company calls Digital Media Transmission – isn't even close to being over, they said they were pleased with the case's conduct so far.
Acacia executive vice president Robert Berman called the just-concluded court session the "preliminary claim course," and said he was pleased with the manner in which it was conducted by Ware and by both sides.
"The judge has made clear that, number one, he's going to issue tentative rulings and, number two, that if there are other claims that need to be construed as we move along in the process, that he will stop and construe those claims," Berman said. "It's the end of this phase, the beginning phase, of the claim construction process."
Berman also said he remained confident "in both the validity and the enforceability" of the DMT patents. "I think that our side made very persuasive arguments," he said, "and we'll wait to see how the judge comes out. I think the judge asked good questions, not only today and yesterday but during the previous hearings. I think the fact that he has prior experience in Markman hearings is a good thing, and it focuses on what the issues are."
Ware presided over a further discussion of the element claim terms involved in the Acacia patent group, with the May 19 session concentrating on sequence encoders, digital decompressors, transmission systems, and temporary storage devices.
The challengers to the Acacia claim pressed their argument that Acacia construes the patent claim terms too broadly, while Acacia pressed its argument that the terms mean exactly what they say, especially according to various technological dictionaries.
The judge seemed particularly inquisitive about the transceivers discussion. The challengers held that a transceiver involves data transmission and reception in a common housing and shares some common circuit components required for transmitting and receiving, while Acacia's team argued that that definition was not included in the patent specifications. When Ware asked whether he could have two transceivers in a single system, Acacia's team replied yes, but not necessarily in a single housing.
"I was pleased that the judge listened to the parties and asked questions, but it's hard to predict how the judge will rule," said Victor de Gyarfas, one of the challengers' attorneys, after the May 19 court session. "I think both sides tried to do the best they could, and I think both sides made some good points."
A day earlier, challenging attorney John Singer said the human factor – whether a human operator can be considered part of the technological definition of a transmission system – could be one key to whether the Acacia patent group holds up under the challenge to its validity.
De Gyarfas said defining or construing remote locations and unique identification codes could also be major keys in the ultimate outcome.
He also stressed that finding even one element of the DMT patent group to be invalid could invalidate the entire group. "If you're missing a single element of a claim," he said, "the claim is not infringed. And if you don't infringe an independent claim, you don't infringe any of the dependent claims. So the lack of one element in one independent claim could knock out a whole series of claims."
New Destiny/Homegrown Video chief Spike Goldberg, who co-leads one group of adult Internet companies challenging the DMT patent claims along with VideoSecrets chief Greg Clayman, said he, too, was pleased with the way the claims element discussion was done.
"I feel [that] anything to narrow down the breadth of the [Acacia] claim is a good thing," Goldberg said. "It's still so broad, so ambiguous, finally we're going to have a way, a kick of objective analysis in the butt. He may not give us what we want, he may give us what we want; but either way, we know where we're going to fight."
But he also said that, with the class-action status issue not that far from being decided, "now everybody [in the adult Internet industry] is going to have to decide how they're going to be involved and help out."
Berman had said last December, when Acacia first began to seriously consider class-action status on some of the litigation, that such a move would fit its previously-announced strategy of reaching all alleged infringers, and might prevent Acacia having to re-litigate various issues repeatedly.
"They want Adult Check to represent the whole class, and that's to be separate [from our group]," Goldberg said. "But as far as I'm concerned, we're all one group, and we're moving forward together."
