Two days before their battle with the adult Internet returns to federal court, Acacia Research Corp. suggested the Electronic Frontier Foundation – whose survey calling for what are considered the 10 most frivolous patents turned up Acacia's Digital Media Transmission at the top of the list – has a selective view of defending fundamental rights.
Acacia executive vice president Robert Berman said he found it interesting that the EFF is interested in preserving some rights, like free speech, while being willing to ignore others, like property rights.
"Property rights are as important as the right to free speech," Berman told AVNOnline.com July 6. "For example, if someone broke into your garage and stole your SUV, and put a speaker on the top, and was driving around the neighborhood making some political statement, trying to get your SUV back wouldn't be trying to stifle free speech, it would be you trying to get your property back. If somebody is using your property, you have a right to stop them or receive a license or receive royalties."
That, said EFF staff attorney Jason Schultz, is "possibly the most twisted and contorted analogy I have ever heard," saying it shows Acacia and similar companies – other EFF frivolous patent candidates include Clear Channel, Nintendo, Ideaflood, Firepond, and Acceris – conflate physical property with dreams of intellectual property.
"There's no question now that an SUV in your garage is something you own. But here there's a real question as to whether Acacia actually invented anything new or simply is claiming monopoly on technology that millions of people use every day to express themselves," Schultz told AVNOnline.com.
"And the other thing is, I don't have to break into your garage to steal your SUV to express myself in the physical world. But I can't think of a modern Website, especially news Websites, that don't depend on streaming some kind of audio or video to express themselves on the Web. It has become a fundamental part of free expression online," he continued. "And I would say it has become the predominant method for artists and news organizations to connect to their audiences. [Acacia] doesn't want to own just the SUV, [they] want to own every single automobile and stereo system in the world, to use [their] contorted analogy."
Berman replied to the EFF survey on the same day Acacia announced it had signed a DMT licensing deal with Central Valley Cable TV, a California provider and one of nine cable and satellite companies against whom Acacia filed an infringement complaint in federal court last month. At that time, Acacia settled an earlier dispute with On Command, which provides in-room digital entertainment to the hospitality industry.
The Central Valley Cable settlement leaves in the June litigation filings Comcast, Charter Communications, DirecTV, Echostar Communications, Boulder Ridge Cable TV, Seren Innovations, Cox Communications, and Hospitality Network, the last a Cox subsidiary that – like On Command – provides in-room entertainment for the hotel industry.
Acacia also announced they have signed 21 DMT licensing deals with corporate Websites and e-learning companies. But the company has chosen not to release the names of those Websites and companies for the time being.
This news came two days before Acacia and a group of adult Internet companies challenging the DMT patent claims are scheduled to return to federal court in Santa Ana, Calif. U.S. District Judge Joseph Ware could decide on both Acacia's bid to make a number of the adult Internet cases a class action suit, and on tentative rulings regarding construction of some of the patent claim terms the two sides argued in Markman-process hearings earlier this year.
Of critical concern when it comes to the patent claim terms is what Victor de Gyarfas, an attorney on the adult Internet companies' defense teams, noted after the most recent court hearing round in May: that finding even one element of a patent claim invalid could, in turn, invalidate the entire patent.
"If you're missing a single element of a claim," he said after that session, "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."
