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A lucky break For Vonage Lawyers |
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Written by Adam Gosling
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Thursday, 03 May 2007 |
It could be the first bit of luck the Vonage legal team has had in its
fight against allegations the broadband telephony company illegally
uses patented technology owned by communications competitor Verizon.
Given their latest argument for clemency is based on a totally
unrelated court ruling, coupled with the fact that they failed to
leverage the 'prior art' which now seems to be cropping up everywhere
in the first case, you have to wonder.
Filing in the U.S. Court
of Appeals for the District Court's decision
to be set aside and re-adjudicated, Vonage lawyers have argued that a
recent Supreme Court decision in a patent case involving automotive
switches set a precedent that should be applied to their own case.
Vonage says the lower court should retry the case based on a new test for determining when an invention
is too obvious to warrant patent protection.
In the KSR v. Teleflex
case regarding the control over vehicle accelerator and brake pedals, the Supreme Court
unanimously adopted patent test which held that
the obviousness question should not be determined in a narrow, rigid
manner that denies common knowledge, but rather should incorporate a
more expansive and flexible approach that allows for consideration of
common sense when assessing whether an invention is ordinary or
obvious, and thus ineligible for patent protection.
Vonage is confident
this ruling should have a positive impact on its case. Vonage has
consistently maintained it does not infringe on Verizon's technology,
asserting in its brief today that the validity of Verizon's name
translation ('574 and '711) and wireless ('880) patents should be
retried by the U.S. District Court in light of the U.S. Supreme Court's
April 30, 2007 decision.
"We are very encouraged by the Supreme
Court's decision and the giant step it represents towards achieving
much-needed patent reform in this country," said Jeffrey Citron, Vonage
chairman and interim chief executive officer. "The Supreme Court's
decision should have positive implications for Vonage and our pending
patent litigation with Verizon".
While
Vonage lawyers argue the patents are too obvious, you have to wonder if
they properly researched the topic prior to the first court case. DId
they believe they were impervious? Did they exhaust all the legal
avenues to have the Verizon Patents overturned during the first court
case?
It certainly isn't an informed legal opinion, but this report
speculates that a patent issued to 3Com could be used to argue that at
least some of the contentious technology was also conceived prior to
the Verizon patent and indicates that the two application may have been
in the patent process simultaneously. The software engineer, Michael J.
Musiel, wrote the patent and bring sit to light through the press now
seems to have had trouble helping the company out. "I have had no luck
contacting Vonage through their web site," he tells the blogger he sent
the information along to.
In another, probably less helpful 'prior art' offering, blue chip VoIP blogger, Tom Keating writes: "Deep Throat pointed me to a Google Groups (Usenet) post dated way back in September 22, 1995 containing some interesting mentions of VoIP that predate Verizon's patent claims."
Finally in yet another instance of previously un-detected "prior art", another famous VoIP Blogger, Jeff Pulver,
writes: "I am at a loss to explain how the patent office granted
Verizon a patent on "name translation" given the extensive coverage of Free World Dialup (FWD) as the first instance of Internet to PSTN calling in October 1995."
www.vonage.com
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