Last week, we mentioned Newegg, a company that has publicly declared it won't settle
with patent trolls, fighting in court
against the world's most litigious
patent troll, Erich Spangenberg. If you'd bet that's a recipe for some courtroom drama, it appears you would have won that bet. Joe Mullin continues his excellent reporting from East Texas, and talks about Newegg breaking out some heavyweights in support of its argument that some guy named Mike Jones didn't actually invent the cryptography that made e-commerce possible. Among those appearing on behalf of Newegg were three names that I hope all of you already recognize: Whitfield Diffie, Ron Rivest and Ray Ozzie
. If not, look them up, but suffice it to say Newegg has credibility on their side.
They also had Alan Eldredge, a guy who worked on the original Lotus Notes to talk about how they implemented everything in Jones' patent (using Ron Rivest's RC4) before Jones filed for it. The interesting tidbit there is that Eldredge wasn't your typical expert witness hired by one of the parties in the case:
Eldridge wasn't paid, as expert witnesses were—he came down to testify against the Jones patent out of a feeling of "civic responsibility," he said. He didn't know who the defendants in this case were until he was told. "I hadn't even heard of New Age until Saturday," said Eldridge at one point, as laughs were stifled in the courtroom.
From the sound of it, Diffie oozed credibility on the stand, as he should, and Mullin believed the jury was eating it up (for more details on the specifics of the testimony, read Mullin's full article linked above):
Diffie's testimony went on some time, but he seemed to have the jury in the palm of his hand. A few jurors laughed at his jokes and smiled, and the more serious ones were certainly focused on his testimony. After about two hours, Albright passed the witness.
Spangenberg's lawyer, Marc Fenster, apparently decided the way to respond to this incredibly credible witness (the dude invented public key cryptography!) was to... attack his credibility. First, he attacked his credentials. Diffie never completed a master's degree, nor has he held a full time academic position -- which, of course, doesn't even remotely matter for anything, but Fenster tried to use it to make him seem like a charlatan, leading up to a claim that Diffie didn't actually invent public key cryptography. But, of course, that's not actually true. This story is well known in cryptography circles and you can find variations of it online. The UK's equivalent of the NSA, GCHQ, more or less figured out much of the same thing
, but kept the whole thing secret. Fenster referred to James Ellis of GCHQ, who had conceived a similar idea, but wasn't able to do the math. The math was done later at a time much closer to Diffie's efforts (the exact timing here is somewhat in dispute). However, as many people have pointed out, none of that much matters, because the folks at GCHQ did absolutely nothing
with this, and from all accounts, they didn't even think it was anything important or special.
And, more importantly, none of that actually takes away from the stuff that matters here: all the important work happened long before Mike Jones got his patent, and Spangenberg's company TQP's claim that Jones' work enabled e-commerce still looks like complete bunk. Even if GCHQ had figured out public key cryptography before Diffie, it doesn't change the fact that his version is the one that made it well known, RSA's implementation made it work, and that's actually what made secure e-commerce possible, not anything from TQP's patent.
It appears that Newegg is so confident that it's going to win the case completely that it didn't even bother having its final witness take the stand. That witness was going to challenge the $5.1 million damages claim from Spangenberg. But that only comes into play if the jury finds for TQP. While it may be a bit risky, Newegg seems to be betting big that damages aren't even going to be in play here at all.