Law of Cards: Electronic Trading Card Parties Argue Over Basic Verbs

Law of Cards: Electronic Trading Card Parties Argue Over Basic Verbs

Patent cases are normally complex affairs involving difficult legal issues and highly technical arguments. Given that patents (allegedly) cover the cutting edge of technology, that's to be expected. Despite this, it looks like one of the most important issues to address in the Wildcat v. Panini, et al. patent infringement action on electronic trading cards is not technical at all. It's what does the word, 'is' mean.

Seriously.

Let me explain. I promise, it's as silly as it sounds.

The most crucial hearing in a patent case is the Markman hearing. That's where both sides argue about what the patent covers. So, the plaintiff will argue for broad patent definitions that will ensure the defendants' products fall within its scope. The defendants will argue for narrow claim definitions so their products will fall outside of the patent.

After the hearing, the judge will issue an order defining the scope of the patent. This ruling (called a Markman ruling) is important because the jury will use the ruling to help them reach a decision. It's basically a roadmap for what each side needs to prove to win.

Markman hearings mean patent attorneys spend a lot of time arguing about what words mean. In the context of technical patents, it's a necessary step. For example, in one case, we had to figure out how the heck we were going to get a jury to understand what the terms "multiplexing" and "demultiplexing" meant. Luckily, we recognized most people, while not familiar with either word, were familiar with the phrase e pluribus unum. Well, actually, not familiar with the exact Latin phrase, but were familiar with the English translation: "From many, one." This is exactly what multiplexing is (taking lots of signals, and combining them into one). Demultiplexing is just the opposite, breaking one signal into many signals (from one, many).

Now, multiplexing and demultiplexing were two words that most people didn't understand, so it was necessary to develop definitions for those terms. In a patent suit, it's not as easy as going to a dictionary and looking up the definition. No, instead, both parties argue what they want the word to mean before the judge (with each side arguing a definition that helps their side).

That's the fun part, because all lawyers like to argue.

However, sometimes (often times, actually) there's a Markman argument over words where there shouldn't be one.

Enter the Wildcat v. Panini, et al. case. This is the electronic trading card patent action where Wildcat sued Panini, Nintendo, and a bunch of other companies over, you guessed it, electronic trading cards.

The Wildcat v. Panini case is getting ready for their Markman hearing, so both sides have apprised the court on what terms they are going to argue about. A couple terms are necessary to debate like "dissociated computer program." I don't think many jurors would know what this term means, so it's important for it to be defined in the context of the case.

There's at least one term both sides are arguing about that's kind of ridiculous. That term is: “electronic trading card.”

So, what's the argument about? I could see a need to define this term if the argument focused on whether or not the card was a purely electronic or virtual card that did not exist in the real world. Or whether it could also exist in the real world -- sorry about that. I didn't mean to lapse into legalese and patenese there. But, that's not what the fight is about. I'm not kidding you, the fight is about the word "is."

Here's the fight. The defendants propose the term "electronic trading card" means, “an electronic card that is collected and traded” and Wildcat proposes that it means, “an electronic card that can be collected and traded."

The only difference between both definitions: "can" the card be collected or "is" the card collected.

Haven't we heard this before? Oh yeah, remember Bill Clinton's infamous statement that, "It depends on what the meaning of the word 'is' is?"

Philosophers for centuries have contemplated, "If a tree falls in the forest and no one is around, does it make a sound?" Well, here's the modern day, trading card equivalent, "If a card can be collected and traded, but isn't, is it collected and traded?"

To put things into perspective, a few several-hundred-dollar-an-hour attorneys are going to argue what "is," is or what "can be," can be. Then, a federal district judge is going to have to take time away from sentencing drug traffickers and terrorists or ruling on whether the Pledge of Allegiance or Obamacare is constitutional to spend time drafting an order to address this issue.

I love patent law.

Over the next couple of months, each side will file briefs explaining why their side is right, and I can't wait to see their arguments. First, I'll make sure I get a copy of Bill Clinton's deposition transcript. Since that deposition set the precedent for defining "is," I bet it'll have equal application here.

The information provided in Paul Lesko's "Law of Cards" column is not intended to be legal advice, but merely conveys general information related to legal issues commonly encountered in the sports industry. This information is not intended to create any legal relationship between Paul Lesko, the Simmons Browder Gianaris Angelides & Barnerd LLC or any attorney and the user. Neither the transmission nor receipt of these website materials will create an attorney-client relationship between the author and the readers.

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Paul Lesko is a shareholder at Simmons Hanly Conroy and the chair of its Intellectual Property Department (http://www.simmonsfirm.com). Don’t hold the fact that Paul is a lawyer against him, he’s also a rabid baseball and college basketball fan, and an avid baseball card collector. Paul can be found on Twitter @Paul_Lesko and Google+.

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