L'Ombre de l'Olivier

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16 April 2008 Blog Home : April 2008 : Permalink

Buy from Blue Jeans Cable not Monster

I am not an audiophile, nor am I a US resident, so any personal boycott I might announce with regard to audio (and for that matter video) cables would be of distinctly limited effect. However I do earnestly hope that any readers of this who are audiophiles, US residents and particularly are both will read this blog post and then agree to
  1. buy audio cables from Blue Jeans Cable
  2. avoid buying audio cables (or indeed any other product) from Monster Cable
  3. give lots of juicy publicity to the legal action this post refers to
So what am I upset about? I'm upset about the way that Monster Cable and/or its lawyers appears to be attempting a legal shakedown effort/extortion racket on other cable producers, in this case Blue Jeans Cable by claiming that some of its patents are infringed. As the link above points out this isn't the first time Monster has claimed patent infringement apparently:

We thought there had been a lull in the numerous Monster Cable lawsuits which had percolated throughout the industry in the last few years. Apparently the lawyers needed more to do.

Design patents represent nothing more that that: design. There is no technological content within design patents. The net effect is that Monster cable suing Blue Jeans is like you suing someone who copied the custom paint job on your car.

In this particular case though I'm not particularly worried about the victim because, as the article points out

the owner of Blue Jeans Cable is a lawyer by trade. We hope he takes this as far as it needs to go to shut down the lawsuit and end this nonsense.

And indeed his reply is a joy to read. I'd suggest reading the whole thing but I rather enjoyed this little bit of legal reasoning:

Also,  please provide me all of the information referenced above as it relates to your expired patent D323643, a copy of which I am attaching. [...] Please let me know  which, if any, products Monster has ever sold or offered for sale which were marked with the patent number, or other reference, to  D323643.  Please also advise me whether, in your view, the Tartan connector does or does not fall within the scope of D323643, and if it is your view that it does not, please identify each and every difference between the Tartan connector and the connector represented by D323643 upon which your view is based. [...]

I would assume that you would agree with me that if the Tartan connector is less dissimilar from the D323643 patent than from any of the five patents you cite in your letter, then the Tartan connector is within the coverage of the prior art and cannot, as a matter of law, infringe any of your client's current patents.

            I must also point out that unless there is a good deal of background information you have not provided me which makes the case otherwise, Monster Cable cannot possibly square its patent infringement claim(s) with its own patent history.  Two views of the matter might be taken; the first, which is my view, is that none of the design patents, including D323643, encompass the Tartan connector.  If that is so, of course, the claim for infringement fails.  But if one grants the sort of breadth to these patents that you appear to wish to do, a problem arises for Monster.  D323643 is the least dissimilar to the Tartan connector of any of the patents, and stands as an obstacle to any claim of infringement of the others because it establishes prior art; if its scope, like the others, is granted the breadth you argue for, then the Tartan connector falls plainly under the prior art and cannot constitute an infringement of the later, and more dissimilar, patents.  Read the patents narrowly, and Monster loses; read them broadly, and Monster loses.

And I can't help but imagine that this bit caused the legal sharks who sent the original demand to regret that idea:

            After graduating from the University of Pennsylvania Law School in 1985, I spent nineteen years in litigation practice, with a focus upon federal litigation involving large damages and complex issues.  My first seven years were spent primarily on the defense side, where I developed an intense frustration with insurance carriers who would settle meritless claims for nuisance value when the better long-term view would have been to fight against vexatious litigation as a matter of principle.  In plaintiffs' practice, likewise, I was always a strong advocate of standing upon principle and taking cases all the way to judgment, even when substantial offers of settlement were on the table.  I am "uncompromising" in the most literal sense of the word.  If Monster Cable proceeds with litigation against me I will pursue the same merits-driven approach; I do not compromise with bullies and I would rather spend fifty thousand dollars on defense than give you a dollar of unmerited settlement funds.  As for signing a licensing agreement for intellectual property which I have not infringed: that will not happen, under any circumstances, whether it makes economic sense or not.

So to make it very simple. Don't reward extortionists. Instead ostracize them and do patronise the companies they do threaten instead.