Insanity Rules In East Texas: Jury Finds Newegg Infringes On Ridiculous Encryption Patent

from the why-trolls-love-east-texas dept

There's a reason why patent trolls love east Texas -- and big part of that is that the juries there have a long history of favoring patent holders, no matter how ridiculous or how trollish. That was on display last night, when the jury in Marshall, Texas sided with patent troll Erich Spangenberg and his TQP shell company over Newegg. As we've been describing, Newegg brought out the big guns to prove pretty damn thoroughly that this guy Mike Jones and his encryption patent were both not new at the time the patent was granted and, more importantly, totally unrelated to the encryption that Newegg and other ecommerce providers rely on. Having Whit Diffie (who invented public key cryptography) and Ron Rivest (who basically made it practical in real life) present on your behalf, showing that they did everything prior to Jones' patent, while further showing that what Newegg was doing relied on their work, not Jones', should have ended the case.

But, apparently TQP's lawyers' technique of attacking Diffie's credibility somehow worked. The jury said both that the patent was valid and that Newegg infringed -- and they awarded TQP $2.3 million -- a little less than half of what TQP wanted, but still a lot more than TQP settled with many other companies (including those with much bigger ecommerce operations than Newegg). In other words, yet another travesty of justice from a jury in east Texas. Newegg will appeal, as it did in its last big patent troll lawsuit (which was much bigger), against Soverain Software. Again, Newegg had lost in East Texas, but prevailed big time on appeal. Hopefully history repeats itself.

Joe Mullin's coverage (linked above) has a bunch of little tidbits about how everyone responded to the verdict, but I think Diffie's response is the most honest. Asked how he was feeling:
"Distressed," he said. "I was hoping to be rid of this business."
Yeah, he's not the only one. The sheer ridiculousness of a jury simply not believing the very people who created the very building blocks of modern encryption, and instead buying the story of someone who did nothing special either with the concept behind his patent or with that patent once it existed, is just distressing. It shows how arbitrary jury trials can be, especially when you have jurors who simply don't understand the technology or the history at play. Blech. I think I may have to go buy an anti-patent troll t-shirt from Newegg.

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  1. icon
    aldestrawk (profile), 26 Nov 2013 @ 11:01am

    Re: Re: Re:

    A friend of mine is a DA and once told me that prosecutors do not like to have engineers, software engineers in particular, because they require too much proof. During the recent jury selection I was involved in, I told this to a Google engineer who was also in the jury pool. He was desperate not to be chosen because the estimated trial length was 2 months. What was odd was that the defense attorney was the one who dismissed him on a peremptory challenge.

    I think the main reason that lawyers are dismissed early is because attorneys on both sides and the judge do not want someone on the jury who can act as an expert on law and sway other jurors contrary to only the presented evidence or to the judges precise instructions.

    A potential juror who has expertise in a field applicable to the trial will probably be dismissed because they are less malleable to presented evidence. Worse, they may influence other jurors who may look to them as an unofficial expert witness. I am a software engineer but it was my knowledge and my other degree in psychobiology which led to my dismissal as a juror in that recent 1st degree murder trial. A few years back, I had watched videos comprising many hours of lectures by one of the scheduled expert witnesses, Robert Sapolski. The defendant was 17 at the time he stabbed someone in front of many witnesses. (after I was dismissed I read the appeals court decision which overturned his previous conviction based on the fact that the judge did not allow the jury to properly consider the defense testimony from a psychologist.) I pretty much knew what Sapolski's testimony would be and I knew his personal opinions based on what he said in this interview in the NYT about being an expert witness and how the legal system always lags behind the advances of science and technology:
    http://www.nytimes.com/2007/03/11/magazine/11Neurolaw.t.html?pagewanted=all&_r=0

    The most important issue to me involved studies that showed that the development of the human brain's pre-frontal cortex is not complete until around the age of 25. The result is that the amygdala tends to dominate and young people end up being more impulsive without thinking through and weighing consequences. No big surprise here except for the fact that brain maturation completes at a later stage than most people think and the cause is organic. This was the main rationale behind the Roper V. Simmons Supreme Court decision in 2005 that eliminated the death penalty for those who committed crimes while 16 or 17.
    I talked about this in a very vague way so as not to sway other jurors before any expert testimony. I even mentioned Roper V. Simmons while explaining how I could not disregard my own knowledge. A juror isn't supposed to consider potential penalties but my knowledge, outside of expert witness testimony, would have influenced my decision to convict for either 2nd degree murder or manslaughter. This isn't absolute as Sapolski himself has noted that criminal behavior can be the result of a "broken machine", with no chance of resolving itself.

    I was not terribly interested in serving on a jury for 2 months but I was also being very honest. If I had really wanted to serve on the jury I wouldn't have mentioned any of this. The prosecutor stopped calling on me after that including questions made to the entire group of prospective jurors. I was absolutely the first one dismissed out of that group and left the courtroom, relieved, but also deeply disillusioned about the jury system. I am still disillusioned and the decision for this patent case only reinforces that.

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