Bullshit patent suits are annoying when it ’s a do - nothing patent of invention bearer trying to educe Johnny Cash from fat corporal wallet , but even more so when it ’s a bigger company trying to muscle over small ones . Like Monster Cablesuing Blue Jeans Cablefor having connective that take care like theirs . Blue Jeans ’ chief executive officer , a former evil attorney , has write out a ripping rebutter , head out that “ the gross word structure of the RCA stopple is pretty well dictated by function ” before throw down , “ I would rather drop fifty thousand dollars on defense reaction than give you a dollar mark of unmerited settlement store . ” Here ’s the whole ballsy varsity letter :
https://gizmodo.com/monster-cable-has-cojones-of-steel-c-ds-blue-jeans-cab-379662
RE : Your varsity letter , received April Fools ’ solar day
Dear Monster Lawyers ,
Let me begin by put forward , without equivocation , that I have no interest whatsoever in encroach upon any intellectual property belonging to Monster Cable . Indeed , the less my client intend my products resemble Monster ’s , in form or in function , the secure .
I am evaluating your claim that the connectors on certain Tartan brand products infringe Monster ’s designing patent and trademarks . However , the info furnish with your letter is manifestly poor to support a claim of infringement and so I am writing to you to ask for further selective information and clarification regarding your claims .
I will start by addressing your trademark / trade dress title . You have mention to two trademark enrollment , and have attached some printouts from the USPTO scheme but the delineation of the marks on the drawings provide is minuscule and indistinct , making it unmanageable to determine on the nose what the allege resemblance is , and I need further information from you .
First , I need legible , graduated table drawings of the marks , preferably with dimension shown on the drawing . To the extent that drawings are inadequate to show the nature of materials , finish , mark legends , color and the like , I will also call for example of each of Monster Cable ’s actual uses of these marks in commerce ; actual forcible examples would be best , but photographic reproductions might do . As you will realize , these considerations are essential to any call arising out of trade dress , as you are alleging in essence that there is a resemblance sufficient to do confusion over the identity or parentage of the trade good , and no mere origin - drawing can suffice .
Second , I will need transcript of the earmark program and any correspondence between the applicant and the USPTO in support of the applications .
Third , you have not identified the Monster Cable production in question , in genuine use and statistical distribution in Commerce Department , whose trade dress you allege has been allow . I have reviewed Monster Cable ’s on-line material and have examined connectors on various Monster Cable assemblies in local retail outlets and am unable to determine which , if any , of these are thought by Monster to represent use of these particular grade . I am also unable to determine from this revue whether Monster Cable in reality offers any product for sale to which the Tartan connective are alleged to be peculiarly similar . My own mother wit of it , in looking at the connection , has been that there is no similarity between the Tartan connectors and any of the many Monster Cable connectors beyond the world-wide functional and formal characteristics which all or nearly all solder - cup , mechanical - assemblage , barrel - style RCA - type connection apportion . It may be that there is some tune of products to which you have intended to name but which I have not found in Monster Cable ’s marketing materials or showing ; but if so , you will need to show me specifically what product it is , and you will need to call to my attention the specific aspects of the connective design which you grapple constitute unique Monster Cable business deal wearing apparel , what the associated secondary substance of those aspect of the business deal frock is , and in what personal manner and by what characteristics you allege that this business deal wearing apparel has been set aside .
Fourth , if the dimensional characteristic of the connector as used in Department of Commerce vary from the dimensions of the shell draught of your sucker , I will need a proper scale drawing , with dimensions , of each reading of the literal connection as used in commerce , as well as picture of the connectors showing actual in - use finishes . If there is more than one such connection design in literal economic consumption by Monster Cable as to which appropriation of trade attire is aver , of class , I will need this information for each and every such design .
On the basis of what I have seen , both in the USPTO documents you have sent and the actual appearance
of Monster Cable connection which I have observed in employment in commercialism , it does not come out to me that Monster Cable is in a position to advance a nonfrivolous title for misdemeanour of these marks . There only is not sufficient resemblance between the Tartan connectors and any fool or any example of the scratch ’ actual use that I can find to abide such a call . But if you have further information for me on that point , you are welcome to submit it .
You have also supplied me with partial support on five pattern patents which you lay claim these connectors contravene . I will start out by observing , first , that the five design letters patent are so very much unlike one another that it is very hard to envisage that any product could really infringe more than one of them at a clock time ; anything close enough to one of them to be deemed an infringement would , by that fact alone , be too dissimilar from the other four . The dissimilarity of the Tartan connector from each of them is pronto evident .
I should add that , for the purpose of this letter , I am take on that these patent of invention are valid . This is in no room a grant of the point . In fact , this is a very pregnant and likely inaccurate laying claim , and you should anticipate the patentability of these designs to be under attack if you commence an action at law for violation .
The fact that you have represent me with five all distinguishable design patents , I have to say , gives me intermission . I would go over them and detail the difference between the Tartan connective and those shown in the patent , but if you are learn the position that it look you are taking , there might be very picayune point in discussing it with you . Take , for example , the letters patent you stigmatise as Exhibit B. The connexion show there is considerably different from the Tartan connector in every respect , unless one ignore plan specific and focuses on the center attributes of the connecter which are dictate by procedure . If your view of Exhibit B is that it is to be construed broadly enough as to encompass the Tartan connection , it is very hard to imagine that there is such a thing as a solder - assembly style RCA hype which is not likewise , in your eyeshot , encompass by this patent of invention . And , uncalled-for to say , it is very difficult to imagine that any motor hotel would ever adopt such a scene of the patent of invention ’s oscilloscope ; if you file on this sort of fundament , you are in Rule 11 frivolous - claim territory .
I will point out , though you are no doubt already well aware , that the gross sound structure of the RCA jade is pretty well dictated by function . RCA male plug intended for soldering and assembly have certain property in common ; their diameter is stiffen by the need for the shell to fit over an internal set of solder points and overseas telegram clamp , and their distance by the motivation to provide some elbow room for cable end preparation and affixation ; they are mostly radially symmetrical along the prior / ulterior axis of rotation owing to the need to adapt both a round - visibility cable television and the orotund - profile RCA socket ; the connexion end is stiffen by the received dimensions of the RCA socket , and by the pauperization , as the socket ply for no bayonet or fuck attachment , to provide sufficient tensity on intromission to asseverate good mechanical and electrical contact ; the bbl , comprehend by the user for the intention of intromission and remotion , requires traction which is typically allow by raised or recessed rings , plastic inserts , knurling , or the like ; and transition between the connector and the cablegram to which it is attached requires , in one physique or another , a reduction in barrel size at the connective hind end . It is my assumption , since you advert design patents only and no public-service corporation patents , that Monster Cable makes no call here for any functional face of any of these designs ; if I am wrong , please let me cognize what utility patent Monster Cable does hold , and what claim , if any , Monster asserts on the basis of those utility patent .
Further , on that detail : one of the plan patent you attached is closely related to a usefulness patent of invention applicable to the same design , and you failed to channelise that fact out . I need to be able to rely upon the completeness and truth of the information you station to me and I happen this sort of deletion deeply disturbing because it is open that the effect of this nondisclosure is to obscure the real significance of the patent feature . Similarly , as I note further below , you overleap source to another patent Monster has restrain which appears , candidly , to be fatal to your position . If you expect to carry me , you had intimately start attain full , undefended and honorable disclosures ; I will get out the facts rather or later on in any issue , but the impact upon your credibleness will not be repaired . It looks like when you sent this letter , you were control on the premise that I am not bright enough to see through your deception or sophisticated enough to intelligently evaluate your claims ; shame on you . You are required , as a topic of sound ethic , to display good organized religion and professional candor in your relations with untoward party , and you have descend miserably short of your honourable responsibility .
My sentiency , in looking at these five patent , is that either you are attempting to pose some contestation that I just do not empathise or you are contend for untenably broad insurance coverage of these patent which would sweep every functional aspect of the typical solder - assembly RCA connective within the oscilloscope of a smattering of mere pattern patents . You require to clarify this , and frankly , I think you postulate to bespeak to me which , if any , of these patents you in reality make do are relevant to the present discussion . It can not possibly be that you believe that more than one of these letters patent is pertinent , and if you importune that they are , we can not have an intelligent dialogue on this content . Once you have identified the patent which you contend is relevant , I want to see the file history and the citation to anterior art ; I need copies of the applicant ’s correspondence with the USPTO ; and I want a clear and telling explanation from you as to exactly what aspects of the Tartan connecter aim are alleged to constitute the infringement , and how .
Additionally , if you are able to identify any of these patents as applicable , please let me know whether Monster Cable presently sells , or has at any time sold , any products bear connectors which are in conformity with the letters patent drafting or which are otherwise contended to be within the coverage of the patents , and key out those product for me . Please also render photographs and/or physical examples of these connectors as manufactured and sell .
Also , please supply me all of the info cite above as it relates to your expired patent of invention D323643 , a copy of which I am seize . I will need to know what merchandise Monster now offer or at any time has offer for cut-rate sale which were believed to return within the scope of D323643 , and what claims , if any , of violation of D323643 were made against others by Monster , whether those claims of misdemeanour took the form of correspondence only , litigation , or otherwise . Please let me know which , if any , products Monster has ever sold or offered for sales event which were strike off with the letters patent number , or other reference , to D323643 . Please also advise me whether , in your thought , 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 connecter and the connection represented by D323643 upon which your view is base . ( On that note , permit me point out to you that the “ turbine cut ” feature is irrelevant here as your client makes only functional , not design , claim for that feature in its merchandising materials for the product . ) I would adopt that you would tally with me that if the Tartan connector is less dissimilar from the D323643 patent than from any of the five letters patent you mention in your varsity letter , then the Tartan connector is within the coverage of the anterior graphics and can not , as a matter of constabulary , infringe any of your client ’s current patents .
I must also point out that unless there is a good muckle of screen background information you have not provided me which make the guinea pig otherwise , Monster Cable can not possibly feather its letters patent infringement claim(s ) with its own patent of invention history . Two views of the matter might be take ; the first , which is my view , is that none of the intent patents , including D323643 , encompass the Tartan connexion . If that is so , of course , the call for infringement fails . But if one grants the kind of comprehensiveness to these letters patent that you appear to bid to do , a problem arises for Monster . D323643 is the least dissimilar to the Tartan connector of any of the letters patent , and stands as an obstacle to any claim of infringement of the others because it establishes prior nontextual matter ; if its ambit , like the others , is granted the breadth you argue for , then the Tartan connective fall plainly under the anterior art and can not comprise an infringement of the belated , and more different , patents . Read the patents narrowly , and giant loses ; learn them broadly , and ogre loses . You are welcome to point out any misplay in my abstract thought ; but I have to say that I will be unreservedly surprised if you are successful in doing so .
Please also let me know whether Monster Cable or any related to entity has brought action to enforce any of the patent and trademarks referenced in your varsity letter or above , and provide me with the legal power , court and docket information relate thereto , along with copy of any decision or judgments resulting therefrom . If any such litigation continue through breakthrough , I will need all discovery responses , including document production , come forth by Monster , as well as copies of any and all depositions require and the exhibits thereto .
Further , if any of these patents or trademark has been license to any entity , please provide me with copies of the licensing agreements . I assume that Monster Cable International , Ltd. , in Bermuda , list on these patents , is an IP holding company and that Monster Cable ’s principal US entity devote licensing fee to the Bermuda pot for dislodge income out of the United States and thereby forfend paying United States federal income revenue enhancement on those constituent of its income ; my request for these licensing agreement is specifically intended to let in any licensing agreements , including those with closely refer or fictitious entities , within or without the Monster Cable “ household , ” and without paying attention to whether those licensing agreements are shammer transactions for tax protection purposes only or whether they are bona fide arm’s - length dealing .
Once I have encounter the above stuff and explanations from you , I will undertake to analyze this information and lease you know whether we are uncoerced to assent to any of the demand made in your letter . If my analysis show that there is any reasonable likelihood that we have infringed in any way any of Monster Cable ’s cerebral property rights , we will of course take any and all action necessary to solve the position . If I do not listen from you within the next fourteen days , or if I do hear from you but do not have all of the selective information bespeak above , I will assume that you have abandoned these claims and close your file .
As for your asking for information , or for action , directed to me : I would cue you that it is you , not I , who are making claims ; and it is you , not I , who must substantiate those claim . You have not done so .
I have seen Monster Cable take indefensible IP positions in various unlike scenarios in the past , and am generally familiar with what seems to be Monster Cable ’s modus operandi in these subject . I therefore believe that it is important that , before fill up , I make you aware of a few points .
After graduate from the University of Pennsylvania Law School in 1985 , I pass nineteen years in judicial proceeding pattern , with a centering upon federal litigation involving large harm and complex offspring . My first seven year were spent principally on the defense side , where I developed an intense frustration with insurance carrier who would steady down no-account claims for nuisance value when the better farsighted - terminus view would have been to fight against vexatious judicial proceeding as a thing of principle . In plaintiffs ’ practice , besides , I was always a inviolable advocate of stomach upon principle and taking case all the way to judgment , even when strong offers of settlement were on the table . I am “ uncompromising ” in the most literal sensation of the word . If Monster Cable go forward with judicial proceeding against me I will pursue the same merit - driven approaching ; I do not compromise with yob and I would rather spend fifty thousand dollars on defence than give you a dollar of unmerited colony funds . As for sign a licensing correspondence for intellectual property which I have not infringed : that will not happen , under any circumstances , whether it makes economic sense or not .
I say this because my observation has been that Monster Cable typically operates in a hit - and - run manner . Your customer threatens litigation , expecting the dupe to panic and plead for mercy ; and what follows is a quickie negotiation session that end with payment and a licensing understanding . Your node then practice this aggregation of licensing accord to convince others under like menace to accede to its requirement . Let me be clear about this : there are only two ways for you to get anything out of me . You will either need to ( 1 ) convince me that I have infringed , or ( 2 ) obtain a last judgement to that effect from a court of competent legal power . It may be that my unfitness to see the pragmatic value of settle frivolous claims is a deep character flaw , and I am certain a few of the insurance carrier for whom I have done work have see it that direction ; but it is how I have done business organisation for the last after part - C and you are not sound to change my idea . If you action me , the case will go to judgement , and I will hold the court ’s attending upon the merit of your claims — or , to speak more precisely , the absence of merit from your claims — from startle to cultivation . Not only am I unintimidated by litigation ; I sometimes rather overleap it .
I will also point out to you that if you do choose to undertake judicial proceeding , your “ upper side ” is enormously bound . If you somehow managed , despite the unnerving obstacle in your path , to obtain a determination of infringement , and if you were successful at recuperate a heavy licensing fee — say , ten cents per connector — as the measuring stick of damage , your convalescence to engagement would not contact four figure . On the downside , I will elevate defence which , if successful , will well weaken your future efforts to habituate these patents and marks to threaten others with these types of actions ; as you are of course mindful , it is easy today for your competition to use collateral estoppel offensively than it ever has been before . Also , there is lilliputian doubt that prepare groundless claim of barter dress infringement and purpose patent violation is an improper business sector tactic , which can give rise to unjust competition claim , and for a company of Monster ’s size of it , potential antimonopoly violation with treble legal injury and attorneys ’ fees .
I search forth to get the information request and will review it promptly as before long as it is received .
Sincerely ,
Kurt Denke
[ Audioholics , Thanks random-access memory ]
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