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September 6, 2010

Solo

Even for an ace, patent litigation is a team sport. It's one thing if your scummy contingency lawyers breach contract and walk away, for you to soldier on (more on that later). But to sue a major corporation pro se - foolhardy becomes an understatement. Case in point: Roger Marx Desenberg sued Google for infringing 7,139,732. Desenberg couldn't even reach first base: the district court "dismissed the complaint under Federal Rule 12(b)(6) for failure to state a claim upon which relief can be granted."

Roger Marx Desenberg v. Google (CAFC 2010-1212) nonprecedential

A complaint terminally singed by patent not infringed.

The district court held that Mr. Desenberg's complaint did not state a claim on which infringement could be found, the court finding that the defendant Google does not itself perform all of the steps of the claim. The district court explained that claim 1 "clearly require[s] the participation of multiple parties," in that the claim "requires a series of interactions, transmissions and communications between 'users' and 'providers,' similar to the multi-step patent process involving merchants and customers in BMC Resources [v. Paymentech, L.P., 498 F.3d 1373 (Fed. Cir. 2007)]." Magistrate's Report at *6. The court in BMC Resources held that direct infringement could not be found unless the defendant performed, or directed or controlled the performance, of all of the steps of the claimed method. The court in BMC Resources also held that indirect infringement, such as inducement or contributory infringement, "requires, as a predicate, a finding that some party amongst the accused actors has committed the entire act of direct infringement." 498 F.3d at 1379.

Bad claims drafting to involve multiple actors. Looks like Desenberg was pro se prosecutor as well.

Applying this precedent, the district court held that a claim for direct infringement "would require Desenberg to allege that Google performs both the 'user' and 'provider' steps in the claim, which Desenberg has not alleged, and by the very terms of his patent, cannot realistically allege." Magistrate's Report at *6.

There must be a direct infringer.

The court also held that Google could not be an indirect infringer because there was no direct infringer, as required by precedent. See, e.g., Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U.S. 336, 341 (1961) ("[I]t is settled that there can be no contributory infringement in the absence of a direct infringement."); BMC Resources, 498 F.3d at 1379 (citing Dynacore Holdings Corp. v. U.S. Philips Corp., 363 F.3d 1263, 1272 (Fed. Cir. 2004)).

Affirmed.

Posted by Patent Hawk at September 6, 2010 11:00 PM | Infringement

Comments

"... if your scummy contingency lawyers breach contract and walk away, for you to soldier on (more on that later)..."

We're all ears, Hawk.

Posted by: Hagbard Celine at September 7, 2010 12:30 AM

Interesting stuff, hawkie

But didn't CAFC pass precedential opinion a while ago in McZeal vs Sprint, stating that initial patent infringement complaint does not have to include any specifics - the discovery process should fill in all the details prior to trial ?

It has been my understanding that pro se litigant should be allowed at least some limited discovery, after clearly accusing infringer

Of course, Google is a corporate monstrosity well known for its hard stance against settling patent claims

Looks like thay need to get their corporate ass kicked one day to learn to deal
Unfortunately it will never happen, after Ebay

Posted by: angry dude at September 7, 2010 6:24 AM

Checked the patent, the only (!!!) independent claim is claim 1:

"1. A method for a user using a communication network to search for and identify at least one matching provider of project work, the method comprising; transmission of a lead comprising contact information that enables communication between the user and the provider, wherein the transaction lead price is the amount of money paid for the lead, and further wherein a service is performed by the user or the provider as a result of the tranmission of the lead and wherein the performance of the service includes a service transaction fee paid by the user or the provider; storing in a database at least first provider information and second provider information, the at least first provider information and the at least second provider representing at least respective maximum lead prices, each of the respective maximum lead prices representing the maximum amount that each of at least a first provider and a second provider is willing to pay for an lead, wherein each of the at least first and second providers provide at least one service with which the lead is associated; comparing the respective maximum lead prices to determine a lowest respective maximum lead price; identifying the provider associated with the lowest one of the respective maximum lead prices; receiving at least one lead limit that represents a maximum quantity of leads to be provided; receiving from a user or provider a request for contact information, the contact information enabling communication between the user and at least one of the first provider and the second provider; selecting at least one provider based on each respective provider's maximum lead price and the lead limit; calculating a respective transaction lead price for each of the at least one selected provider, wherein the respective transaction lead price equals at most each respective selected provider's maximum lead price; and providing the at least one lead to the user or provider for project work."

And this is a business-method patent !!!

He's gotta be kidding taking on Google with this garbage

And he was represented by some attorneys, who later requested to walk away due to non-payment by the client

You get what you pay for

I don't think this case is a representative one

Posted by: angry dude at September 7, 2010 6:55 AM

"It's one thing if your scummy contingency lawyers breach contract and walk away, for you to soldier on (more on that later). "

I loled.

Well, there's always a breach of contract lawlsuit right?

Posted by: 6000 at September 7, 2010 8:15 AM

I googled his name and came up with this little gem:

http://quantum7.org/TreatiseQuantumMechanicsRMD.pdf

Unfortunately (fortunately for Google) this guy is a nutcase

I'll bet you some money, hawkie, that if someone more sensible, with e.g. a PhD in EE or CS and a solid patent on some real technology, sues Google pro se, he WILL get discovery from district court despite all clever google lawyering
(even if he can't prove initially that Google infringes on his patent - Google works mostly on a server side - a proper discovery MUST be conducted to uncover the infringement details)

I'll give it a try one day: have nothing to lose

Posted by: angry dude at September 7, 2010 8:19 AM

"It's one thing if your scummy contingency lawyers breach contract and walk away, for you to soldier on"

How does a lawyer on contingency withdraw for non-payment? Disbursements?

"And he was represented by some attorneys, who later requested to walk away due to non-payment by the client"

Looks like the suits were scummy not for walking away but for taking the case in the first place. That claim turns my stomach. Are you sure it's not the whole claim set with the claim numbers stripped out?

The sad fact is not so much that the IP world is full of these deluded, often irascible souls who cannot separate reality from the real "multiverse," but that it's full of lawyers who prey on them.

Posted by: Babel Boy at September 9, 2010 6:43 AM

"...but that it's full of lawyers who prey on them"

You mean his patent prosecuting attorneys who took some of his money before he stopped paying them ?

But no litigator in his right mind would take this case - he had to file lawsuit pro se (he would lose anyway, with or without representation)

Posted by: angry dude at September 9, 2010 11:10 AM

the real question is what does a bavarian, liederhose wearing hans solo have to do with this?

Posted by: InMuenchen at September 14, 2010 5:04 AM

I will win US Supreme Court.
Google and I had startups at the same time, had the same number of employees at the same time. They hired my attorneys to work against me.
My patent claims are written perfectly. There is only party infringing, the web server.

they upgraded the search engine to make it work better.
I invented the Max Price system that rocks the Internet everyday. Watch out for the movie. The story is quite interesting.
But google will not win the case,
they infringe, they copied me.

And you know what the HUGE thing is...
the discovery.

You all don't even know the discovery and how my invention has changed the world, and will do so even more in the future.

And you didn't notice the fraud at the bottom of the letter from the attorney - they never mailed me an invoice. I paid them, they wanted more money, and I was never notified. They were hired by Google to try and have that patent abandoned. A govt agency "beyond UPS Control" stole my computer that was being shipped.

So you really think a bunch of NON-talented people like Larry and Sergey invented anything?
Of course not.
Everyone thinks fraud is OK and the way in the US. Just watch what happens in the coming years. The end of attorney fraud is coming soon.

And it was not MY CHIOCE to go Pro Se.
It was my only option.
There were no contingency lawyers willing to take the deal.
And at the time Alston-bird quit, I didn't know that my patent was worth billions.
They were hired by Google, and so was Ostrolenk-faber.

Fraud is real dude.
Very real.
But justice will be done.
I will have lost a lot of the battles,
but I will win in the end,
and though I will have the last laugh,
many of those will have got away with the crime of the century.

US Supreme Court is next.
Watch, and learn.

Posted by: roger desenberg at October 19, 2010 4:53 PM