Seattle Patent Law Community Mourns the Passing of Lee Johnson

Friends, family, and local patent practitioners met yesterday to mourn the loss of Lee Johnson, a talented engineer and patent lawyer who spent over 35 years as named partner of one of Seattle's oldest IP boutiques, Christensen O'Connor Johnson Kindness (commonly referred to by the acronym COJK). Lee was an excellent lawyer and friend. Funeral services were held in Seattle's historic Plymouth Congregational Church and it was standing room only.

I had the pleasure of working with Lee for seven years at COJK and I try to emulate his dedication to this profession and his focus on client service. Lee was the ideal mentor for a young lawyer, bringing the same dedication and focus to this role as he did his legal practice. He introduced me to Seattle Rotary and led by exemplifying the Rotary motto of "service of above self." At age 65, he left us too soon after struggling with cancer for the last year.


Lee was born October 4, 1942 in Ames, Iowa and was raised in the small idyllic farming community of Avoca, Iowa. He graduated from Iowa State University in 1964 with a degree in chemical engineering and was accepted into the patent training program at The DuPont Company in Washington D.C. where he worked during the day and studied law in the evening at Georgetown University. In 1971, after working briefly for a law firm in Dallas, Lee accepted a job in Seattle with the small IP boutique Christensen & Sanborn. It was here that Lee joined Bruce O'Connor, a fellow Georgetown graduate. O'Connor and Johnson were later joined by Gary Kindness, and partnership of COJK was formed in 1976.

Over the years, COJK represented some of the Northwest's finest companies, including Microsoft, Boeing, Amazon, Nintendo, and Weyerhaeuser. Lee was instrumental in firm leadership, helping to grow the firm from 4 lawyers in the 1970s to over 50 attorneys in 2001-2, most with engineering or technical degrees.

Lee was an avid boater. He and partner Gary Kindness owned a 46 foot Grand Banks cruiser that they kept in the San Juan Islands. Named by combining their two last names Johnson and Kindness, "the Jokin" was an omnipresent guiding vessel for the annual COJK boat trip in the San Juans. The boat was always spotless too. Lee was aboard the Jokin, enjoying a vacation with his family in Desolation Sound just weeks ago.

Lee will be missed but not forgotten. He's left an important mark on my professional career, and lawyers will do well always if they only try and be more like Lee Johnson.

Declaratory Judgment Case Against CRS LLC Dismissed on First to File Rule

In a case for declaratory judgment styled TGN, Inc. v. CRS LLC (08-680MJP), plaintiff TGN sought an order invalidating US Pat. 6,073,124 and declaring that certain software does not infringe. TGN is wholly owned by Turner Broadcasting System (TBS). Among others, TGN and TBS own and operate a website, GameTap.com, which is alleged to infringe the '124 patent. Allegations of infringement were made in a complaint filed last March in the District of Delaware, (08-127GMS) by CRS LLC. TGN filed its DJ action about two months later and CRS moved to dismiss based on the first to file rule. CRS states in its motion to dismiss that Time Warner is the nation's 49th largest corporation with over $46 Billion in reported revenue and over $130 Billion in assets but that very little is known about plaintiff TGN. In her order dismissing the case the Judge Pechman explained as follows:

TGN has presented no evidence that CRS has acted in bad faith. See Alltrade, 946 F.2d at 628 (citing Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599, 602-03 (5th Cir. 1983) (plaintiff acted in bad faith when plaintiff asked defendant to hold the suit, then ran to court and sued defendant)). Neither is there evidence that CRS filed suit in Delaware in anticipation of TGN’s declaratory action in this Court. See Guthy-Renker Fitness, L.L.C. v. Icon Health & Fitness, Inc., 179 F.R.D. 264, 271 (C.D. Cal. 1998) (providing that a suit is anticipatory “if the plaintiff in the first-filed action filed suit on receipt of specific, concrete indications that a suit by the defendant was imminent”). CRS does not appear to be forum shopping. Alltrade, Inc. v. Uniweld Products, Inc., 946 F.2d 622, 629 (9th Cir. 1991) (citing Mission, 706 F.2d at 602 n.3 (“[a]nticipatory suits are disfavored because they are an aspect of forum shopping”)).

Faithful readers of this blog will recognize CRS and the '124 patent from other posts. Here is a list of the cases CRS has filed in this district since 2004:

March 2008
CRS LLC v. Valve Corp	WA Western	Donohue	Patent	Federal Question
Plaintiff: CRS LLC; Defendant: Valve Corp
June 7, 2007
CRS LLC v. IGN Entertainment Inc	WA Western	Zilly	Patent	Patent Infringement
Plaintiff: CRS LLC; Defendant: IGN Entertainment Inc
March 17, 2005
CRS, LLC v. Bitarts, LTD	WA Western	Lasnik	Patent	Patent Infringement

In the case against Valve, Judge Jones recently denied Valve's motion seeking bifurcation on liability and Damages. From Judge Jones' order:

Valve has offered no evidence to distinguish this action from any other civil case. First, Valve’s argument that it will succeed in avoiding liability is premised entirely on its observation that CRS and its predecessors in ownership of the patent-in-suit have failed in litigations against other defendants. Valve offers few details about these other litigations, and no basis for the court to conclude, at this stage, that a similar outcome is likely in this litigation. Second, while Valve seeks phased discovery, it does not seek to phase dispositive motions or bifurcate trial. Under those circumstances, there is no reason to expect that the court will receive a dispositive motion and rule on it before the damages phase of discovery would begin. Third, although Valve repeatedly decries the “time-consuming, burdensome, and expensive” nature of damages discovery (Mot. at 7), it offers no evidence that responding to CRS’s damages-related discovery requests will be particularly time-consuming, burdensome, or expensive. Discovery is inherently burdensome and time-consuming, and always comes at some cost to the parties; but the question for the court is whether the burden of the discovery is unreasonable. Without evidence that damages discovery will impose burdens that justify a departure from the ordinary rule that damages and liability discovery proceed simultaneously, there is no basis to grant Valve’s request.

The case against Bitarts Ltd. was stayed in view of the defendants' bankruptcy filing in may 2006, and it involved another patent, US 6,141,698.

The case against IGN relating to the '124 patent ended in a confidential settlement earlier this year as I reported here.

CRS is represented by local patent lawyer/litigator Bob Rhode.

Seattle Patent Litigation Update: July 2008

It was a very busy month in July for patent litigation. Here is the case list.

July 29, 2008
Chef'n Corporation v. Trudeau Corporation
WA Western
Pechman
Patent
Federal Question
Plaintiff: Chef'n Corporation; Defendant: Trudeau Corporation

July 23, 2008
Northwest Agricultural Products, Inc. v. Emerald Bioagriculture Corp
WA Eastern
Shea
Patent
Federal Question
Plaintiff: Northwest Agricultural Products, Inc.; Defendant: Emerald Bioagriculture Corp

July 15, 2008
Malki v. Franke Commercial Systems Inc. et al
WA Western
Martinez
Patent
Federal Question
Plaintiff: Avraham Malki; Defendant: Franke Commercial Systems Inc., H & K Norwood Inc., McDonald's Corporation

Implicit Networks Inc. v. International Business Machines Corporation et al

WA Western
Tsuchida
Patent
Federal Question
Plaintiff: Implicit Networks Inc.; Defendant: International Business Machines Corporation, Oracle Corporation, Sap America Inc., Adobe Systems Incorporated
July 11, 2008

Loops, LLC et al v. Phoenix Trading, Inc. et al
WA Western
Martinez
Patent
Federal Question
Plaintiff: Loops, LLC, Loops Flexbrush LLC.; Defendant: Phoenix Trading, Inc., Wendy Hemming, Jeffrey R Hemming, H&L Industrial, Does
July 8, 2008

Widevine Technologies Inc v. Verimatrix Inc
WA Western
Robart
Patent
Federal Question
Plaintiff: Widevine Technologies Inc; Defendant: Verimatrix Inc

You might take notice that this list includes another patent case by Implicit Networks, a relatively unknown local technology owner with some pretty large bones to pick. Implicit's case filed last month is against IBM, Oracle, Adobe, and SAP. It also filed in February against Intel, AMD, Sun, NVIDIA, Raza, and Real Networks. Made me think "Hey ... you forgot someone ... 'your potential, our passion.'"

Implicit's case against IBM, Oracle, Adobe, and SAP involves Infringement allegations targeting IBM's Websphere Application Server, Oracle's Application Server and BEA WebLogic Server, SAP's NetWeaver and Adobe's JRun and ColdFusion products. The patents-in-suit are for computer-server software that performs faster security functions, US 6,324,685, and 6,976,248.

Implicit's case against Intel and others involves US Patent No. 6,629,163 covering "A method and system for demultiplexing a first sequence of packet components to identify specific components wherein subsequent components are processed without re-identifying components." This is basically, a system for processing encrypted data. According to allegations in the Complaint, this technology is used in Intel's Viiv platform, the Java Media Framework, ATI Radeon hardware, software from NVIDIA called Stant, and other products.

In both cases, Implicit is represented by James Rogers, as well as Ed Goldstein, Corby Vowell, adn Matt Prebeg of Houston, Texas. Texas lawyers filing contingent fee-patent litigation in Seattle? Why not. You'll get to trial faster here than in the so-called "rocket docket" of East Texas, where patent cases are languishing due to a back-log.