educational

Markman Hearing Primer

For those following along with the Acacia Saga, Feb 6th is an important date. It is the first day of the Markman Hearing for the defendants against Acacia's DMT patent infringement claims. In order to get everyone up to speed on this event, I have written a Markman Hearing Primer... satirized for your sanity.

The term Markman Hearing came from the result of the case Markman v. Westview Instruments Inc. This article talks about Markman Hearings, with an excerpt provided below:

"Markman hearings are argued before a judge. Claim construction arguments, based on canons of construction, address the use of the terms in the claims, the use of the same terms in the patent specification, arguments made during the prosecution of the patent application and, possibly, industry usage of those terms."

Both sides filed their arguments to the court for review. FightThePatent.com has obtained copies of those court documents. For those arm-chair patent hobbyists, the court filings are very interesting. You will notice the importance of the use of words and the definition of words is critical for either side in defining/defending their claims and constructs.

The zip file contains the pre-Markman court filings for the defendants and Acacia. New Destiny is Home Grown Video and also represents 7 other defendants. CyberHeat, aka Top Bucks, is listed in the document, but they have recently settled with Acacia. Offendale, aka IWI, MaxCash, is not part of the Defense Group and have retained their own patent attorney firm.

The first line of the Introduction in the New Destiny document sets the tone for the document:

"This case is ripe for dispositive claim constructions pursuant to Markman v. Westview Instruments Inc."

Running this through the FightThePatent Legalese Translator, it comes out as: "If the DMT patent were a cheese, it would be Swiss Cheese, filled with so many holes. It might also be Limburger because everything about the methods used to solicit/license the patent and the overly broad interpretations really stink."

*note: FightThePatent is (not even) considering filing a patent for the translation of legalese into satirical commentary. Whether a programmatic method or a manual translation, this process could be broadly extended to all comical outlets such as the Daily Show or even commentary by radio personalities. FightThePatent is not responsible for the cheesiness of the outputted results and blames the computer.

Acacia's entire document was run through the Patent-nonPending Legalese to Satirical Commentary translator and it produced the following results:

"All your videos are belong to us"

FightThePatent Analysts are still analyzing the results, equating it similarly to the cookbook titled 'To Serve Man' from a sci-fi classic Twilight Zone episode or to the output of '42' from the Hitchhiker's Guide to the Galaxy.

Below is a breakdown of all of the Adult Industry players involved in the Acacia Saga:

Current Defendants Newly Added Lawsuits* Sponsors that settled**
Defense Group:

  • Video Secrets
  • Homegrown Video
  • Lightspeed
  • ARS
  • Gamelink
  • Ademia
  • AEBN
  • Audio Communications

Other's fighting:

Silver Cash
Max Cash

  • Club Jenna
  • Orgasm.com
  • Webpower Inc. = Click Cash (iFriends)
  • Cybernet Ventures = Adult Check
  • Global AVS = ProAdult
  • ICS Inc. = adult.com / GFY
  • National A-1 Advert =
    singles.com, sextoys.com , girls.com , guys.com , ladies.com, slaves.com , celebrities.com, cash.com

  • smutbucks.com
  • primecash.com
  • falcondollars.com
  • megapornbucks.com
  • cecash.com
  • venuscash.com
  • buttbucks.com
  • ten.com
  • trafficcashgold.com
  • zooted.com
  • wickedbucks.com
  • vividcash.com
  • flyntdigital.com
  • candidcash.com
  • platinumbucks.com
  • sexedcash.com
  • epiccash.com
  • adultmegacash.com
  • jerocash.com
  • pornkings.com
  • dormbucks.com
  • adultpaymaster.com
  • chichiclicks.com
  • creamycash.com
  • gloryholecitycash.com
  • ddgcash.com
  • topbucks.com

* the position of those listed in fighting or settling has not been determined

** from LicensedSponsors.pdf

One possible outcome of the Markman Hearing might be the way the terms and definitions used by Acacia could have the judge find their use to be improper in application. The use of the word 'transmission' is highly contested as the DMT patent was never envisioned to include the Internet, but instead a Video-On-Demand system involving switched-based networks (ie. telephones). After the judge rules in the defendants favor on the terms used and some follow-up sessions, the judge could eliminate most of the claims leading to the end conclusion of the defendants not-infringing upon the patents.... The end result would not invalidate the patent.

Fight The Patent Concludes
The implications of this outcome could mean that the defendants and potentially anyone who uses digital audio/video over the internet, and who has not licensed the patent, would not be infringing on the patent.

The companies that already licensed the patent would have to continue to pay licensing fees. These companies would have a difficult time to break their contract, because they voluntarily agreed to the definitions that Acacia used in the license.

For those involved in the fight, it would be a bitter-sweet victory to show the rest of the Adult Industry that those that signed were on the wrong side of the fence of this major issue. While I am sure there will be shouts of joy at the conclusion of this story, it does illuminate how issues like patents can divide companies and industries.

Editor’s Note: I’ve downloaded the zip file of documents referenced above, and it is a ‘fascinating’ – if mind numbingly long and dry – look into the legal process surrounding Acacia’s claims, and the defendant’s counter claims. If you can spare the considerable time required to read these briefs, or even to scan them, you will have a better understanding of these oft-discussed issues at stake. ~ Stephen

Copyright © 2024 Adnet Media. All Rights Reserved. XBIZ is a trademark of Adnet Media.
Reproduction in whole or in part in any form or medium without express written permission is prohibited.

More Articles

opinion

How to Halt Hackers as Fraud Attacks Rise

For hackers, it’s often a game of trial and error. Bad actors will perform enumeration and account testing, repeating the same test on a system to look for vulnerabilities — and if you are not equipped with the proper tools, your merchant account could be the next target.

Cathy Beardsley ·
profile

VerifyMy Seeks to Provide Frictionless Online Safety, Compliance Solutions

Before founding VerifyMy, Ryan Shaw was simply looking for an age verification solution for his previous business. The ones he found, however, were too expensive, too difficult to integrate with, or failed to take into account the needs of either the businesses implementing them or the end users who would be required to interact with them.

Alejandro Freixes ·
opinion

How Adult Website Operators Can Cash in on the 'Interchange' Class Action

The Payment Card Interchange Fee Settlement resulted from a landmark antitrust lawsuit involving Visa, Mastercard and several major banks. The case centered around the interchange fees charged to merchants for processing credit and debit card transactions. These fees are set by card networks and are paid by merchants to the banks that issue the cards.

Jonathan Corona ·
opinion

It's Time to Rock the Vote and Make Your Voice Heard

When I worked to defeat California’s Proposition 60 in 2016, our opposition campaign was outspent nearly 10 to 1. Nevertheless, our community came together and garnered enough support and awareness to defeat that harmful, misguided piece of proposed legislation — by more than a million votes.

Siouxsie Q ·
opinion

Staying Compliant to Avoid the Takedown Shakedown

Dealing with complaints is an everyday part of doing business — and a crucial one, since not dealing with them properly can haunt your business in multiple ways. Card brand regulations require every merchant doing business online to have in place a complaint process for reporting content that may be illegal or that violates the card brand rules.

Cathy Beardsley ·
profile

WIA Profile: Patricia Ucros

Born in Bogota, Colombia, Ucros graduated from college with a degree in education. She spent three years teaching third grade, which she enjoyed a lot, before heeding her father’s advice and moving to South Florida.

Women In Adult ·
opinion

Creating Payment Redundancies to Maximize Payout Uptime

During the global CrowdStrike outage that took place toward the end of July, a flawed software update brought air travel and electronic commerce to a grinding halt worldwide. This dramatically underscores the importance of having a backup plan in place for critical infrastructure.

Jonathan Corona ·
opinion

The Need for Minimal Friction in Age Verification Technology

In the adult sector, robust age assurance, comprised of age verification and age estimation methods, is critical to ensuring legal compliance with ever-evolving regulations, safeguarding minors from inappropriate content and protecting the privacy of adults wishing to view adult content.

Gavin Worrall ·
opinion

Account-to-Account Payments: The New Banking Disruptor?

So much of our industry relies upon Visa and Mastercard to support consumer payments — and with that reliance comes increased scrutiny by both brands. From a compliance perspective, the bar keeps getting raised until it feels like we end up spending half our time making sure we are compliant rather than growing our business.

Cathy Beardsley ·
profile

WIA Profile: Samantha Beatrice

Beatrice credits the sex positivity of Montreal for ultimately inspiring her to pursue work in adult entertainment. She had many friends working in the industry, from sex workers to production teams, so it felt like a natural fit and offered an opportunity to apply her marketing and social media savvy to support people she truly believes in and wants to see succeed.

Women In Adult ·
Show More