By Nerino Petro at 15 April, 2008, 3:15 pm
For many lawyers (myself included) Intellectual Property (IP) law is similar to trying to understand a foreign language; some of the word might seem familiar, but you know that you really don’t have a clue. Usually, threats of patent and trademark infringement don’t make the evening news and it’s an area of the law best left to the “experts” However, occasionally an IP case comes along that captures the attention of the common practitioner. SCO v. IBM and Novell is one such case and the travails of the various parties are well documented on Groklaw. These are also usually cases of “David vs. Goliath” with Goliath taking the first swing being a “cease and desist” letter which are pretty dry reading even for those of us used to spending hours reading cases, contracts and statutes. However, thanks to [H]Enthusiast and Audioholics Online A/V Magazine , we have an IP case that is making the news and it's one we are able to see a witty and (at least to this IP “layman”) rather well thought out and detailed response to one such cease and desist letter.
It seems that Monster Cable recently sent a cease and desist letter to a small electronics cable manufacturing company called Blue Jeans Cable . Nothing special so far, except for the fact that the owner of Blue Jean Cable is a former litigator with a federal practice. Kurt Denke providing background to Monster Cables lawyers states:
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.
I think Monster Cable has stirred up a hornets’ nest with this one, and it may be an instance where further pursuit will, as we used to say “leave them sorry and sore”.
Denke lays out, in well reasoned and detailed fashion, his issues with the claims made by Monster Cable as well as why he thinks their efforts will fail. What’s different is that he is obviously having some fun at the larger company’s expense and has crafted his letter with a bit of sarcasm and humor that is subtle, but readily apparent even to the average legal reader. A provision that I found to be very amusing and I think clearly shows that if you get into a fight with Denke it’s going to be a knife fight in the gutter is this paragraph:
Further, if any of these patents or trademarks has been licensed to any entity, please provide me with copies of the licensing agreements. I assume that Monster Cable International, Ltd., in Bermuda, listed on these patents, is an IP holding company and that Monster Cable's principal US entity pays licensing fees to the Bermuda corporation in order to shift income out of the United States and thereby avoid paying United States federal income tax on those portions of its income; my request for these licensing agreements is specifically intended to include any licensing agreements, including those with closely related or sham entities, within or without the Monster Cable "family," and without regard to whether those licensing agreements are sham transactions for tax shelter purposes only or whether they are bona fide arm's-length transactions.
This letter is worth reading as an example of how legal writing doesn’t have to be entirely without wit and humor to make its point.