Monthly Archives: May 2014

Letter to Jens


It’s almost too much to ask. At 42 years old, you are twice the age of some of your opponents in one of the most grueling of sports – professional cycling. Yet, each year you astonish us. In 2013, it was your surprise Stage 5 Amgen victory against some of the greatest sprinters in the world. Before that it was your stage wins in the Tour de France. Too frequently, it is your almost inhuman ability to recover from crashes.

You’re living proof of what Mark Twain said: “Age is a matter of mind. If you don’t mind, it doesn’t matter.”

You never seem to mind.

photo 3But, as with many of your other fans, I find myself wondering if you can do it again this year. After riding up Mt. Hamilton over this last weekend, I’ve decided that tomorrow’s Amgen Stage 3 is your best chance. Leaving San Jose, the route winds over Mt. “Ham” and ends atop Mt. Diablo, 108 miles later.

You are renowned for being one of the more loquacious riders in professional cycling. It’s not just that you’re talkative, but it’s also your German accent and, above all, your infectious energy that fans and fellow riders find so entertaining. Use this to your advantage!  Mt. Ham is putting on its springtime spectacle. Wildflowers are exploding across the hills. Take some time this evening to learn about a few of them. Then, as the peleton is making the climb tomorrow morning, begin giving everyone a lesson about the flora of Santa Clara Cophoto 6unty.

Wiggo, that purple flower is a penstemon. Did you know that Native Americans used it for the treatment of sexually transmitted diseases?  Ja, it’s true. Maybe you want to stop to pick some?”

Phinney, that plant with the red flowers is called ‘Castilleja’, but many refer to it by its common name – ‘Wooly Indian Paintbrush’.  Those flowers are edible. Some people dry them and use them as a condiment. You should stop and try some! You can catch up with me later.”

photo 4Carter, those are Golden Poppies, they match your Optum team colors  very nicely, don’t you think? You should  pick a few for your team masseuse – she will love them.” (Don’t tell Carter that this is the California state flower and picking them is illegal – with luck he will be arrested before the climb up Mt. Diablo.)

Can you imagine how the younger riders will respond when you begin providing this tutorial as you climb toward the summit?! They will think not only does the old guy have the lungs and energy to keep up with them, but he proves to be an expert in native wildflowers as well!photo

If by any chance the other riders aren’t sufficiently distracted and are still with you, take their line and force them to brush against the leaves of this plant. It won’t have any immediate effect, but by Stage 6 the itching should make for a long and challenging day in the saddle.

When you see this sign – make your move! Five quick miles and then a smooth descent toward Mt. Diablo. All you need to do is channel your mantra of “Schließen Sie Beine.”


Lastly, if you feel your energy flagging before the summit, I left a small bottle of Berentzen for you at the observatory.


Your pal,






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If it Quacks like a Duck…

As I discussed recently, the modus operandi for patent trolls is to blanket an industry or market with threats of litigation (or actual lawsuits), while doing little research to determine if the cases have merit. Patent trolls know that some portion of companies will pay quickly to get rid of a case rather than go through the distraction and expense of fighting a lawsuit.  A couple of recent successful cases where Adobe did not settle, are illustrative of how patent trolls operate.

The first case involved a patent troll known as TQP.  TQP is headquartered in Texas and appears to have two employees. One is the inventor of U.S. Patent 5,412,730 (granted in 1995), which TQP claims to apply to certain encryption algorithms used by most current internet browsers. The other employee is an attorney.

Quick question – does anyone else think that something’s amiss when 50% of a company’s employees are attorneys?

Since 2008, TQP has filed patent lawsuits against more than 200 hundred companies ranging from financial institutions to airlines, mobile phone companies, insurance companies, drug stores, grocery stores, energy companies and tech companies asserting that these companies infringe Patent No. 5,412,730.

Given the number of companies that TQP has sued, it wasn’t a surprise to Adobe when we were also named as a defendant. What was surprising, however, was that the law firm representing TQP was Russ, August & Kabat.

Let me see, where have I heard that name before? Oh, yeah, now I remember. This is the same firm that has represented Adobe in a variety of patent related work since 2006. This work included  reviewing Adobe’s technology and providing opinions that Adobe did not infringe various patents in cases brought by patent trolls.

In the legal world that’s what we refer to as a “conflict of interest”. A big one.

As a result, we asked the court to disqualify Russ, August & Kabat from representing TQP in the case against Adobe.  The court agreed and given that, among other factors, TQP did not want to bear the cost or complexity of hiring another firm to represent them, especially against someone willing to fight, they dismissed Adobe from the case.  The right outcome for Adobe, but not without cost. We spent $300,000 in legal fees to defend the case. We have since instituted a state court action against the law firm asking for the return of some of those fees.

It’s worth noting that the first time we learned that they weren’t our counsel anymore was when the law firm sued us on behalf of TQP. That’s not how law firms are supposed to behave. But as Glenn Frey would say, “the lure of easy money, it’s got a very strong appeal.”

In another case, a different strategy achieved a similar result for Adobe.

Ingeniador is a company with its principal place of business in San Juan, Puerto Rico. I can find nothing that indicates that Ingeniador actually makes any products.  Instead on its website it claims to be “a worldwide team of scientists, engineers and entrepreneurs pioneering leading-edge research in mobile, e-commerce and healthcare technologies.  Ingeniador is proof positive of the globalization of innovation.”


Perhaps some of that is true, but if it walks like a duck, and quacks like a duck…

In 2011, Ingeniador filed lawsuits in Puerto Rico against 16 companies  including Oracle, Microsoft and HP alleging that they infringed on U.S. Patent No. 6,990,629 through use of LDAP, a widely used industry standard protocol for maintaining and accessing directory information over the internet. These cases were all settled or dismissed.

In December, 2012, Ingeniador filed another round of lawsuits against nine companies, including GE Healthcare, Nuance Communications, McKesson Corp. and Adobe based on the same patent. These lawsuits were filed in Texas.  Within 6 months of filing all the defendants, except Adobe, had either settled or been dismissed from the lawsuit.

Adobe chose to keep fighting the case (rejecting several offers to settle) and filed a request to change venue so that a trial would take place in Northern California. We thought this made more sense. After all, if Ingeniador is headquartered in Puerto Rico and Adobe is headquartered in California, doesn’t it make more sense to have a trial in one of those two locations rather than Texas?

The Texas trial judge agreed with us and granted our request.  And, no surprise, within 2 months of the judge’s ruling, Ingeniador decided it had lost interest in pursuing Adobe and agreed to dismiss the case against us.

Again, a good result for Adobe, but this time one which cost the company $700,000 in legal fees.

Two Supreme Court decisions last week may help to reduce the asymmetry that creates an incentive for patent trolls to threaten or sue whomever they wish wherever they wish, regardless of the merit of the case. But, in the end Congressional action is what is needed.



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Five Things from: April

1. “Joy (joi) n. 1. a. Intense and especially ecstatic or exultant happiness.” Visually it looks like this.

2.  I thought Amelie  was fiction?

3. For all my golfing friends who are ready to make the change.

4. For all my cycling friends.

5. Your Meme o’ the Month.


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