Agoracom

Jerry, I have been reading Agora because I figured my post about our
current status would be copied there, and because I have a bit more
free time at present. I am choosing not to post there right now, but
I may return at some point in the future. In the meantime, I will
not generally respond to posts directed to me from that forum ---
however, you seem like a nice guy, and responding to the points you
attempt to establish might be helpful to others as well. That is the
spirit in which we started the Agora board back in 2004, when RB
became intolerable due to the same kinds of behavior now being
unfortunately exhibited by various Agora members.

Here are the answers to your questions:

1) To my way of thinking, there never has been any "room" for other
interpretations of Mr. Goerner's statements. Use of the
terms "fully", "cash", and others (sorry, I didn't go back and read
all of them) left no doubt in my mind. I confirmed with my sources
(discussed further below) because of continuing speculation to the
contrary that I felt had long before become a tedious contortion of
what Mr. Goerner had explicitly stated.

2) My sources ARE credible, period. I didn't look back to see when
you joined Agora, but I have made quite a few such posts over the
years and, to my recollection, my sources have never misinformed me.
There have been occasions when a bit more time than expected was
needed for the information to be borne out, but I cannot recall any
such information provided that did not pan out to be correct.

In view of the above, I view my sources as 100% credible, and I don't
know of any basis for anyone else to rationally question that.
Interestingly, until the personal attacks began last August, people
were generally apppreciative of such information, just as I have been
in prior years with other companies in which other people have had
their own "sources". If you read the Wall Street Journal and other
such reputable publications, you will often see writers quoting their
anonymous "sources" on subjects such as purported buyouts, new
products, data on production, and many other topics. It's done every
day in one publication or another, and is perfectly apppropriate. In
any event, whether it is me or someone else in the future, you should
go by the history of what that person's "sources" have said --- if
the "sources", as reported, have been accurate on multiple occasions
in the past, chances are they will remain credible.

3) Invalidation of the patents at trial would indeed very likely
have meant "the end". If you do not understand how difficult it is
to obtain a reversal on appeal, do two things. First, read the
recent appeal in this very case, in which the Federal Circuit
affirmed Judge Ward on the '584 --- it is just as difficult, if
not more so, to obtain a reversal of a jury verdict. Second, pay for
some time with a litigation attorney or retired appellate court judge
and have him or her explain the process to you, as it is difficult
for those who are not attorneys to understand the ramifications.
There is no way for me to fully address that subject on a message
board.

4) I gave the example of the Forgent case not to compare its
strength or weakness on its merits to our case, which would be
irrelevant. Rather, I mentioned it to exemplify the fact that there
are two primary elements to winning a patent case, infringement and
validity, and that being able to prove the first does not guarantee
being able to prevail on the second. That concept cannot be
refuted. If you have not read the case, I urge you to do so.

As to our case specifically, if you truly do not "remember any expert
who mentioned prior art", then have someone find for you the
affidavit of the opposing expert retained by the J3. My dim
recollection is that it was attached to one of the defense
attorney's own affidavits early in the case. Additionally, and while
I certainly don't have the information at my fingertips, I assure you
that there were other experts as well, asserting the same prior art
that has has been raised in the ongoing PTO reviews, along with other
defenses.

Finally, and while not meaning to offend you, your statement that our
patents were "shown to be safe and firm by experts and Agora board
members" is ridiculous insofar as comparing such to proof in a court
of law. I assure you that you would not last very long in Judge
Ward's court, or with any other competent and impartial judge, if you
were to appear before him and say, "Judge, my own experts support my
case, and not only that, but all of my message board buddies do,
too --- so, I win!". Again, if you do not understand this concept,
include it in the conference I have suggested with another attorney
or retired judge.

5) Good lawyers always turn over all the rocks they can find ---
that doesn't mean they are right, or that they will always win. I am
sure that the losing attorneys in Forgent didn't expect to lose when
they filed the lawsuit, and my recollection (could be wrong here) is
that there had been prior settlements in that case. In my own
career, I have been fortunate to have handed many a plaintiff a "zero
verdict" when his/her/its case was ultimately deemed by the judge or
jury to have no merit --- most of the opposing attorneys were
very good lawyers and had "turned over their rocks" as well, and they
certainly didn't expect to lose. Conversely, I have lost cases in
which I had done likewise. The point is that, regardless of how much
money was paid in past settlements, or how many lawyers looked at the
case, such does not provide a guarantee (or anything close to a
guarantee) of victory at trial. If you are not convinced of this,
make it an additional topic of your attorney/judge conference.

6) As Ease and others have pointed out, chances of re-validation are
enhanced with review by the PTO as opposed to a jury of laymen. At
the PTO, we are talking "one on one" with the examiner (who has lots
of prior experience and likely has an engineering degree) and there
are no rules of evidence that we must follow, nor is there any
opponent involved in the process. Conversely, in litigation, an
opposing view is being presented and the jurors would likely have no
technical background. If you do not see the advantage in proceeding
with the PTO based on those factors alone, I will not be able to
convince you by explaining it further.

As to your closing comments, I am a Christian, but I am far from
perfect. Like most people, I get irritated when others tell lies
about me and assault my character and integrity. I try to respond in
kindness, but I do have my limits, and even Jesus himself became
angry on occasion --- I am a poor comparison to Him and I have
many flaws, and all I can do is try to make amends when such is
called for, and to seek forgiveness.

Unfortunately, those who attack me do not have the same goals ---
I have repeatedly attempted to have discussion with several of them,
but they have steadfastly refused. Nevertheless, I remain open to
them should they change their minds, although I do not have time, for
reasons previously given, to engage in "daily battle" on a message
board with folks who appear to delight in their evil motives.

Finally, please be sure that you understand my use of the
term "ignorant", which I went to great pains to define back on
Agora. That word does NOT mean "stupid", but instead, simply refers
to someone who has no experience or training in a given area or
field --- I myself am ignorant in many things, but NOT in the
practice of law and litigation strategy. I continue to feel that
everyone would get along much better if they would BE ASSERTIVE only
about those subjects in which they have actual knowledge and
experience, and ASK QUESTIONS about the remainder --- and yes, I
have followed that rule myself, as you will not see me offering
opinions in accounting, microprocessor technology, engineering, and
so forth.

I hope the above has been helpful to you. Best wishes.