How can you not love an industry that pulls out such vocabulary as “apophasis” and “pellucid”? I am not ashamed to admit that I had to look that first one up. Turns out? It’s a real word. Here’s the definition:
Apophasis: The raising of an issue by claiming not to mention it (as in“we won’t discuss his past crimes”)
I think that’s an insult to IP Nav (as seen below), but I’m not sure. If it’s not, what I’m about to write most certainly is.
It seems that Neiman Marcus was sent a letter by IP Nav. Evidently, the subject of the letter was “proposal to negotiate patent license”, which, when run through my PTT™ (Patent Troll Translator) means “We are going to sue the #$%* out of you if you don’t pay up.”
It’s true. My PTT is never ever wrong.
The letter goes on to say:
“We would very much welcome the opportunity to enter into constructive discussions with your company to determine whether we can agree to a mutually acceptable patent license agreement or that you are not using our client’s patents,” the letter continues. “We are focused on addressing these issues without the need for costly and protracted litigation.”
To which PTT translates:
“We would very much like you to bend over so we can shove our patent where the sun don’t shine, which is to say have you sign a singularly acceptable patent license agreement. If you think you’re not using our client’s patent, well you’re wrong. You are. So, let’s just get your ass-whooping over with, shall we? Send the check to Eric Spangenberg, 2515 McKinney Ave, Suite 1000 Dallas, TX 75201”
But oh noes! Neiman Marcus, having not been born yesterday and also able to use Teh Interwebs to read the news, knows all about IP Nav’s going after Rackspace and how Rackspace didn’t just roll over and play dead. So what does NM do? THE SAME DAMN THING RACKSPACE DID. OK, close. They said “No, Thank You” to your little threat there, buddy, and filed for declaratory judgment.
Here’s what kills me:
The letter, the company notes, doesn’t even hint at what patents it is allegedly infringing upon other than to say they have something to do with “automation.”
Seriously, IP Nav? That’s, like, the height of arrogance. Just because you’re you, you assume that people will not even question you, they’ll just pay up. This ain’t the mafia, pal, and you’re not Don Corleone. (Is he a mobster? Please tell me he is…I don’t watch mob movies because blood and guts and death do not entertain me the way Hugh Grant and Harrison Ford do.)
If the pen is mightier than the sword, you got run through on this approach back in 2011 by Judge Ed Kinkeade:
[IP Nav’s letter is] an unmistakable and intentional warning shot across the bow. The actual message is pellucid to any patent litigator, so that IP Nav’s use of apophasis is disingenuous and unavailing. Remember Mark Antony’s funeral oration in Julius Caesar? That’s how an experienced business executive or lawyer would view IP Nav’s assertions that ‘we are focused on addressing these issues without the need for costly and protracted litigation’ and ‘our client’s preferred approach is to conclude licensing discussions without resorting to litigation. We hope you share this objective.’ The implied ‘or else!’ oozes from this letter like lye from lutefisk. To paraphrase an observation attributed to Anton Chekhov, you don’t hang a gun over the mantle in Act I unless someone is going to fire it in Act III.”
(Kudos to Eric Nicholson at the Dallas Observer for digging up that little slice of heaven.) If ever in the history of ever there was a paragraph that pwned IP Nav, this is it. And yet they came back for more?
What’s that quote about the definition of an idiot? Oh, I remember: One who does the same thing over and over again expecting the same result.
IP Nav, you may or may not be an idiot.