Broadcast defendants shed useful alternative light on current status and future prospects for MAD claims.
It’s Mission Abstract Update Time! In the lawsuit brought by Mission Abstract Data (MAD) against a bunch of Big Broadcasters, those Big Broadcasters have recently filed a pleading that radio broadcasters should take a look at. You can check out a copy here.
Alert readers will recall that, in its suit, MAD claims that the defendant radio broadcasters have infringed patents that MAD bought up a year or two ago. And with that suit making headlines, MAD (along with its pals DigiMedia and IPMG AG) has been putting the hard sell on other radio broadcasters, trying to get them to sign onto “license” agreements authorizing them to use MAD’s patents.
That hard sell campaign (which features hefty FedEx packages full of impressive-looking documents, followed up by insistent sales calls from slick salesmen) had died down somewhat after the Delaware court put the lawsuit on hold last fall. But the campaign flared back to life recently, rattling the nerves of the targeted radio stations. (Who was targeted? Based on a conversation I had with a MAD rep, I gather that they’re going after radio stations that play music and have a website. Those two factors, apparently, are evidence that the station has a computer, which leads MAD to figure that the station is using technology which violates the patented technologies.)
We’ve tried hard to keep our readers updated on the lawsuit and related matters. Among those readers was MAD itself, which has taken me, in particular, to task for supposedly failing to grasp some of the subtleties of its positions. Hey, as we’ve said before, we’re not patent lawyers, and we haven’t pretended to be. And that’s why we’ve tried to provide readers with direct access to various documents relevant to this whole deal, so that readers can make their own determinations.
Like a couple of weeks ago, when MAD asked the Delaware court to lift the stay on the proceeding there.
We provided a link to MAD’s pleading. (That link might have come in handy for at least one MAD rep I spoke with, who had been assuring me that the stay had already been lifted. Oops.) And now the broadcast defendants have filed their response to MAD’s request. Here’s a copy for your late-night reading pleasure. We haven’t included the 150 (or so) pages of attachments, but if anyone is interested, we can get them posted, too.
At this point it’s hard to say who’s right and who’s wrong. But the broadcasters’ response sure seems to rebut a number of the points that MAD sales reps have been making (at least they made them to us, in a couple of phone calls we’ve had with them). The response addresses procedures at the U.S. Patent and Trademark Office, the likelihood of further modifications of MAD’s patent claims, the significance of modifications that have already been made by MAD, and MAD’s own conduct in the Delaware litigation. (For example, according to the broadcasters’ response, when asked to clarify its claims of infringement, MAD provided only vague general references to alleged use of computer hard-drive systems in connection with music storage, broadcast, and acquisition at their radio stations.)
Importantly, the broadcasters’ response directly contradicts things MAD states in its “clarifying the dialogue” document and things that MAD’s reps have said to us as they try to get our clients to sign MAD’s licensing agreements. It’s therefore enough to remind us all that we need to continue to learn more about these issues.
Where does this put us? The Delaware litigation remains on hold. MAD will have an opportunity to reply to the broadcasters’ latest pleading, and eventually the court will decide whether to let the case proceed or to keep it in abeyance. Either way there’s a lot of litigation left in that court, not to mention some potentially significant rulings yet to come from the USPTO.
While the court and USPTO proceedings continue to swirl, individual broadcasters need to do as much as they can to clarify their individual situations. What is your tolerance for risk, given that there are likely to be several ups and downs before a final result? Can you smooth this bumpy ride by clarifying just what it is that MAD owns and, if so, do you need to consult with a patent attorney to do so? What sort of cover do you have in terms of indemnification from your software provider or insurance company?
These and other questions are not of a one-size-fits-all persuasion. But they can’t be ignored just because they’re difficult, unnerving or even somewhat expensive to answer.