Legal News

Adult-Industry Lawsuit Proves Troublesome for Keker?s Firm

By Dan Slater

San Francisco law firm Keker & Van Nest is known for taking on some extremely high-profile defendants — Dickie Scruggs and Bill Lerach come leaping to mind. But, as a recent Recorder story points out, the firm will take on the occasional bit of plaintiffs’ work as well — even if it means diving into one of the nation’s more, well, provocative industries.

The firm reportedly threw itself into the center of a patent dispute between Sony and a company called Immersion Corp., which holds patents to “a man-machine interface which provides tactile feedback to various sensing body parts.”

So here’s what happened: Immersion sued Sony for patent infringement over Sony’s shaking video-game controllers. On behalf of a company called Internet Services, Keker & Van Nest later jumped into the case, claiming Internet Services had a licensing deal with Immersion, which allowed it to develop software that would add “haptic” capability to Adult Web sites and video games. (As the Recorder explains, haptic capability means you can touch and feel the action on the computer screen.) Internet Services said that Immersion had given it the right to enforce its patents, and that Immersion’s suit against Sony stepped on those enforcement rights.

Though not a typical Keker case, KVN’s Mark Lemley (pictured) told the Recorder that they took it in part because it presented a novel legal question: What kind of standing does an exclusive licensee have in a patent infringement case?

Unfortunately, things have not gone well for Lemley & Co. It lost in both the California district court and the Federal Circuit, which ruled last year that Internet Services had no standing in the Sony patent case, though it left the door open for a breach of contract dispute with Immersion.

Though the case was kicked back to the district court, the Keker lawyers wanted out, partly because of a dispute with a friendly witness in the case, a porn-industry attorney named Gregory Piccionelli. The Keker lawyers cited a conflict of interest and a breakdown of the attorney-client privilege, and said it could no longer represent Internet Services. The client fought the withdrawal motion, but Keker prevailed in June.

So how does Lemley feel about having taken the case? Lemley said he has no regrets, even if the subject matter may seem less refined than the Keker firm is used to. “My view is, those sorts of patent issues are sort of interesting issues no matter who raises them,” Lemley said.

Full post as published by Law Blog - WSJ.com on August 14, 2008 (boomark / email).