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Augme Technologies, Inc. Message Board

  • russianmunkee russianmunkee Jun 13, 2012 5:09 PM Flag

    UPDATED Letter: Augme Technologies, Inc. v. Tacoda LLC

    From smooth_1999 over on IV....

    Interesting letter from Judge McMahon today in the Tacoda case


    UNITED STATES DISTRICT COURT
    SOUTHERN DISTRICT OF NEW YORK
    UNITED STATES COURTHOUSE
    500 PEARL STREET
    NEW YORK. NEW YORK 10007·1581
    (212)805·6325


    CHAMBERS OF
    COLLEEN MCMAHON
    UNITED STATES DISTRICT JUDGE



    TO ALL COONSEL IN: Augme Technologies, Inc. v. Tacoda LLC (07 Civ. 7088) (CM)

    CC: The Hon. Robert Sweet, U.S.DJ.

    FROM: Judge McMahon

    RE: Your numerous letters

    DATE: June 13,2012

    Counsel:


    I returned from the Second Circuit Judicial Conference and a Judicial Council Committee meeting to a mailbox overflowing with letters from you.

    First, let me say that, no matter what anyone else thinks or what Judge Sweet does - the
    2007 case that has been on my calendar for five years will be ready for trial ALONE, unconsolidated with any other case, by November 2012, as previously ordered. Judge Sweet is
    perfectly free to conclude that he should transfer his case to me, ,although of course I would not be bound by his decision and might just send it right back. As I am sure Judge Sweet will tell you, AOL has chosen a particularly ill-suited vehicle to attempt to get his case to me, I am not aware that any party has any right to obtain a transfer by invoking, in a motion, our Local Rule on the Assignment of Business; that Rule, is not the equivalent of 1404 or 1406, but is used by the Court's Assignment Committee, not litigants, to reassign cases.

    I can tell you that no other judge of this court has the power to order me to CONSOLIDATE any two cases on MY docket, and I can further advise you that I WILL NOT CONSOLIDATE the AOL case with Tacoda. Tacoda is going to be ready for trial at the end of this year and right now I have it down for trial just after Thanksgiving, with jury selection to occur immediately prior to Thanksgiving. Order your calendars accordingly. Whatever res judicata effects flow from my determination to try the Tacoda case now will happen.

    I will be getting back to you tomorrow with a final scheduling order, but rest assured that it will not be impacted in the slightest particular by the fate of the AOL case.

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    • I have been following Augme and the Original AOL/Tacoda cases for over four years. I have read extensively McMahons rulings and filings on Pacer and researched her in other places. I was certain that many of the trial delays were attributable to her failure to be able to manage her own cases and the unwillingness of those around her including her staff and opposing counsel to remind her of missed deadlines. AOL counsel has done something that I thought no one would ever do and woken a sleeping bear. Why they would do that now? It seems they were the beneficiary of her ineptness up to now, but she is now determined to have the trial and her getting all riled up about AOL's back door efforts might just keep her from dropping the ball again.

      The opinion of the blogger may provide some insight as to AOL's seemingly desperate move.

      http://gametimeip.com/


      Augme Technologies‘ 2007 lawsuit against AOL may finally go to trial after a nearly five-year delay.  Last week, Judge Colleen McMahon of New York’s Southern District ordered Augme Technologies and AOL, opposing parties in a 2007 patent infringement lawsuit, to advise the court of anything the parties need prior issuing a Joint Pre-Trial Order–a key step toward bringing the trial to fruition.

      Founded as Modavox in 1999, Augme describes itself as a provider of “strategic services and mobile technology to leading consumer and healthcare brands.” Company literature claims that successful use of its marketing technology platform benefited major brands like Macy’s, MillerCoors, Nestle, KFC, and Clear Channel.  The five-year old lawsuit against AOL relates to US Patents 6,594,691 and 7,269,636 which relate to adding and embedding functionality in websites.

      According to court documents, Judge McMahon already resolved the majority of issues raised by Augme’s suit. However, one specific question remains relating to whether AOL infringes Augme’s patents under the doctrine of equivalents, requiring a trial. Specifically, while Judge McMahan appears to agree that all other aspects of Augme’s claimed invention are in use by AOL, a question remains about whether AOL’s use of a “Data Agent” and “Data Tag,” in combination, are equivalent to Augme’s claimed “first code module embedded” in a web page.  According to the Judge, “only the Data Tag is fully embedded, and the Data Agent does not embed until it is called by the Data Tag.”  However, the Data Agent “becomes fully embedded before the webpage is fully downloaded,” thus prompting the question of whether the combination is equivalent to the claimed embedded code module.

      Legendary jurist Learned Hand wrote that the doctrine of equivalents “prevent[s] an infringer from stealing the benefit of the invention.”  Specifically, the legal rule prevents a would-be infringer from escaping liability for patent infringement by making insubstantial changes to a product or process.  According to Judge McMahon:

      If this combination of elements [Data Tag/Data Agent] were fully embedded when the web page was designed, [AOL] would appear to be guilty of literal infringement–and I have already concluded that they are not.  The issue is whether the combination of features that is only partly embedded to begin with, but that fully embeds (i.e., becomes part of the programming architecture) prior to the full rendering of the webpage, performs substantially the same function in substantially the same way.  That is … the only issue that must be tried.

      • 2 Replies to chrisbniowa
      • Chris-great post...solid insight. Thank you.

      • Good post Chrisiniowa.

        AOL attorney pushed her one step too far. Some good info to go with yours.

        {Very interesting indeed. As a practical matter it's apparent Mr. Gupta has really upset Judge McMahon. In fact, as I sit here now, I can't recall a time where I've ever witnessed a judge write anything in capital letters as she has here.

        It's clear that he upset her, and I can't blame her, when he asked Judge Sweet to transfer part of his case to her citing a local administrative rule. You can't do that, it's improper forum shopping.

        Look at the timeline of events that lead up to this. Gupta filed the motion to transfer 5/25. Judge McMahon denied his motion for summary judgment on 5/31. Augme opposed the Sweet motion on 6/11 and Gupta replied 6/12. Judge McMahon immediately replied 6/13 having awaited his final brief. There are no coincidences in New York.

        Judge McMahon talked to Judge Sweet, there's absolutely no way he would try to dump a case on her and he has no authority to do so.

        By setting trial for Thanksgiving, I think it clear she is essentially signaling to Tacoda to settle. No juror wants to get picked around Thanksgiving and then sit on jury before Christmas.

        Because of her previous ruling on the MSJ, and her essentially indicating the Doctrine of Equivalents formed a basis of liability, it's possible that she could grant a directed verdict on liability, essentially meaning the jury trial would only be a matter of damages.

        I'd love to see Augme and GP file their own MSJ right now, although pre-trial order may bar it.}

    • Great development. Trial should be interesting in November. I will try to attend.

      IMO, ignore any speculation and let management / GP execute. I know its boring but it makes $$$$.

    • The judge is mad at AOL.

      As I am sure Judge Sweet will tell you, AOL has chosen a particularly ill-suited vehicle to attempt to get his case to me

    • Is this for real? The letter contains typos ... "coonsel"?

    • It's a typo and she also put two comma's together in the first paragraph. You can tell she was raging when she wrote this and was in a definite hurry!

      Too bad for Gupta and all the bashers here!

    • It looks the judge has finally had enough of all the delay tactics by Gupta and the constant need to get in the last word. Looks like it all backfired and is now working in Augme's favor. The msj and this. Keeps getting better. Not only that but remember the Gannett case has its markman briefs due on the 22nd, in just a week or so. Gupta built a house of cards and its all starting to come down.

    • After reading her letter, something caught my eye that may very well be telling or I'm simply reading too much into it. Notice her last sentence. I think at the very least, it expresses emotion, if not more. I would think it more appropriate to have used outcome, my ruling or some wording a little more neutral than FATE. Again, may be nothing, but I see fate as a pretty potent word for the judge to be using. Mick.

    • Does anyone know when is AOL supposed to go on trial?

    • All you have to do is log into pacer.gov and you can see the letter. Nice that she will setting up trial schedule shortly.

    • i saw that also and thought it may be signal a phoney letter..but hoping it is just a typo..the poster has posted before and seems legit..

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