Ongoing Modavox v. Tacoda case I was looking at PACER over the last few days and found something worth mentioning. Although I was aware that Yahoo has filed suit against AOL for patent infringement on a handful of their patents, I wasn't aware of something noteworthy.
If you review the filings, you will see that the same counsel representing AOL in the Modavox v. AOL case, Paul Gupta of Orrick is also representing AOL in Yahoo v. AOL. As stated previously, Mr. Gupta is a well respected patent litigator who carries a very full caseload. Good chance that caseload is increasing based on the following article which indicates his firm is laying off another 300 lawyers. http://www.bizjournals.com/sanfrancisco/stories/2009/03/02/daily46.html One would expect counsel of his caliber to approach the majority of these patent infringement cases in a similar manner. However, in the case of Modavox v. Tacoda, he handled it very differently than he did in the recent Yahoo case.
If you review the filings on the Yahoo suit, you will see he immediately petitioned the USPTO requesting a re-examination of the patents citing that they never should have been issued, this process in itself can take years. He also immediately went to the court and asked for declaratory relief as noted in the following link. http://www.reuters.com/article/technologyNews/idUSTRE53D76R20090414. In stark contrast, he did none of the above in the Modavox v. Tacoda case.
Why did he react so differently to these two similar patent suits? My hunch remains that Mr. Gupta erroneously underestimated the strength of his opponent, failing to size them up properly. Something I've long contended is that he probably never expected Modavox to be capable of putting forward the fight they have. He probably perceived Modavox as a readily defeatable and undercapitalized adversary lacking the wherewithal to go the distance while perceiving Yahoo as the opposite. Its fairly apparent his strategy with Modavox was never one of attempting to fight the case on the technical merits, rather he has seemingly relied on legal tactics aimed at trying to exhaust a small company's resources. This is an often effective and strategic legal strategy when you have parties with a disparate amount of resources. It's even more appropriate when its clear that your client has virtually no legal remedy and is in fact infringing on the little companies patent as is clearly the case here.
I have and still see no reason for Tacoda and their counsel to have allowed this case to proceed to its current stage but for the reason cited above. A lawyer always has a sense of whether their client has a good case or a bad one. Little that happens in the actual courtroom should come as a surprise. Certainly a judge or jury can always throw a curve ball, but they generally have a fundamental understanding of what the most likely outcome will be based on case law and precedent. Sometimes the most prudent thing for the client is not the most desirable thing for counsel. I will stop short of suggesting that Mr. Gupta and Orrick put their financial interest ahead of their clients best interest but it would not be the first time a law firm has wrongly focused on generating firm billings rather than resolution.
Although I traditionally root for the underdog, from a purely legal perspective I'm placing my money firmly on Modavox with respect to the ongoing patent litigation. I still would wager that Tacoda / AOL settles this case in some fashion before it ends up in front of any jury. There's a good chance that the parties still awaiting the ruling on functionality is actually precluding settlement at this time.