Litigation Tracker

ODA Threatened Again

owenw@manusoft.com — Wed, 15 Apr 2009 00:05:00 GMT

Evan Yares, former president of the ODA (Open Design Alliance), is looking for lead plaintiffs in a class action lawsuit related to ODA's recent decision to make changes in their membership agreement. If you were (or are currently) an ODA member, Evan asks that you contact him.

LT-Extender Lawsuit Settlement, Amnesty Program

owenw@manusoft.com — Thu, 19 Mar 2009 20:18:00 GMT

Autodesk announced last week that a settlement has been reached in a 2003 lawsuit against German software developer Torsten Moses. Autodesk charged Moses with copyright violations related to his LT-Extender software. This week, according to a German language email that I have obtained, Autodesk Gmbh in Munich is offering LT-Extender users a discounted crossgrade to AutoCAD along with a promise of legal amnesty if they take advantage of the offer by April 30.

These announcements have created a stir in Germany, where by many accounts the combination of AutoCAD LT and LT-Extender have been very popular. It is not clear whether the amnesty email was targeted specifically to LT-Extender customers, but the German language email includes the ominous statement (roughly translated):

Furthermore, the customer database of T. Moses has been seized by the authorities.
LT-Extender circumvents the built-in AutoCAD LT software locks and enables them in violation of copyright. LT-Extender violates the copyrights of Autodesk. The use of LT-Extender is therefore unlawful. Individual users and the companies whose employees use the LT-Extender must remove LT-Extender or risk prosecution. Managing Directors may be held personally liable for the unauthorized use of copyrighted works.

This is followed by the amnesty offer (roughly translated):

Since the developer of LT-Extender marketed it as a legitimate tool, some of our customers may have been unaware of the legal consequences.
To protect injured clients from further harm, we offer these customers a way to legal certainty and to acquire the functionality of AutoCAD. Autodesk will waive legal claims against customers who act within the amnesty period until 30 April 2009. To facilitate the transition for affected customers, Autodesk offers these customers until April 30, 2009 a comprehensive 30% discount on a legal crossgrade to AutoCAD or an AutoCAD vertical product, plus subscription.

The implication is clear: if you are using LT-Extender, you could be Autodesk's next target for prosecution. What isn't so clear is what exactly the German court found in this case. In comments on Ralph Grabowski's WorldCAD Access blog, Torsten Moses implies that the latest version of LT-Extender is not infringing. One possibility is that Moses saw that he was facing stiff penalties for earlier versions that were found to be infringing, and so agreed to hand over his customer list and cease distribution even of a non-infringing newer version in exchange for a reduction in fines.

Unless and until one or both parties to the lawsuit produce court documents, we can only guess about what legal findings were made, if any. Regardless of the facts, Autodesk is taking advantage of the opportunity to create some angst among the LT-Extender customer base, and no doubt convince many to purchase AutoCAD licenses.

Vernor Petitions Court For Summary Judgement

owenw@manusoft.com — Wed, 11 Mar 2009 00:29:00 GMT

In last week's filings, Tim Vernor asked the court to grant summary judgement so that he can sell his remaining copies of AutoCAD without interference from Autodesk. If you're not familiar with the facts in this case, Vernor's motion provides an excellent (and of course biased) historical overview. This motion will be followed by replies in opposition from both parties, with the process currently scheduled to be completed by March 27.

Autodesk, SolidWorks Negotiating Settlement Agreement

owenw@manusoft.com — Tue, 10 Mar 2009 22:59:00 GMT

In a recent request for an extension of time, Autodesk and SolidWorks revealed that during court ordered mediation on February 26 they "made significant progress towards settlement and are in the process of drafting and negotiating a settlement agreement." The judge denied the extension request, which forced Autodesk to respond to SolidWorks' counterclaims despite the ongoing settlement negotiations.

Vernor Lawsuit Heats Up

owenw@manusoft.com — Sat, 21 Feb 2009 05:52:00 GMT

Autodesk unleashed a major barrage today in its ongoing lawsuit with Ebay seller Timothy Vernor. After settling some of Vernor's claims, Autodesk is turning its attention to the remaining issue of whether or not the sale of AutoCAD is actually a sale or a license. The final resolution of this question could send shockwaves through the entire software industry, so it's not surprising that Autodesk brought out the big guns: a declaration in support of Autodesk by intellectual property law expert Raymond T. Nimmer. Today's filings raise the stakes in this battle, so it will be interesting to see how Vernor responds.

SolidWorks Bites Back

owenw@manusoft.com — Tue, 17 Feb 2009 05:27:00 GMT

In a response to Autodesk's amended complaint, SolidWorks denies Autodesk's claims and makes a series of counterclaims based on it's assertion that Autodesk is using the lawsuit and its marketing muscle to stifle competition.

Autodesk Amends Complaint

owenw@manusoft.com — Sun, 01 Feb 2009 16:38:00 GMT

Autodesk has filed an amended complaint against SolidWorks. The amended complaint is an attempt to address the problems identified by the recent order on SolidWorks' motion to dismiss. Autodesk has substantially rewritten many parts of the complaint. The trade dress infringement claims have been narrowed, but they still appear to lack clear definition.

Christmas for Lawyers

owenw@manusoft.com — Thu, 01 Jan 2009 16:52:00 GMT

Just in time for Christmas, SolidWorks got a little bit of what it asked for, but Autodesk still gets a chance to correct some of the deficiencies in its claims. The judge's order signals a long process ultimately headed for a jury trial now scheduled for January 11, 2010.

Autodesk, SolidWorks Lawyers Working Overtime

owenw@manusoft.com — Tue, 09 Dec 2008 03:03:00 GMT

In a recent flurry of filings, Autodesk attacks SolidWorks' motion to dismiss charges, and SolidWorks counters. The legal soap opera reads like a "he said, she said" schoolyard argument, except with more at stake. In my reading of the documents, I felt that Autodesk spent a lot of time straining at gnats in the weaker parts of its argument (perhaps intent on maximizing the defense costs -- unlike its approach in the Vernor case, where it chose to settle its weakest arguments). So far, SolidWorks appears to be up to the challenge.

One thing that struck me is that Autodesk still refuses to state what exactly is false in SolidWorks' advertising claims. One might read into Autodesk's failure to address this and a few other specific challenges raised by SolidWorks that they are not primarily interested in making the judge's job easier. It will be interesting to see how the judge reacts to this apparent haughtiness.

SolidWorks Wants Lawsuit Dismissed

owenw@manusoft.com — Fri, 21 Nov 2008 16:10:00 GMT

In a filing last week, DS SolidWorks argues for dismissal of Autodesk's lawsuit. The documents filed with this motion to dismiss are voluminous, and include extensive citations to other cases. This indicates that SolidWorks has decided to invest the necessary resources to defend themselves.

SolidWorks claims that Autodesk is using this lawsuit to "bludgeon" SolidWorks and to achieve the results it was unable to achieve via the US Patent and Trademark Office. Their basic argument is that Autodesk does not own the "DWG" and "real" marks, therefore it has no standing to claim injury from SolidWorks' use of those terms. With regard to Autodesk's claims of unfair business practices and false advertising, SolidWorks argues that Autodesk has not stated why the statements are false, and that in any case the statements in question are not actionable because they are mere "puffery" (a legal term of art for vague and subjective marketing statements).

It's interesting to note that SolidWorks uses Autodesk's own statements in the ODA lawsuit to support the argument for dismissal. For example, in their TRO filing during the ODA lawsuit, Autodesk admitted that the use of non-Autodesk .dwg files is "pervasive". SolidWorks also points out that Autodesk specifically disclaimed their right to "DWG" as a trademark when applying for other trademarks with "DWG" in their name.

I sense that Autodesk's strongest claim is the trade dress infringement claim regarding the so-called "orange rectangle", with the trademark infringement claim regarding the use of "AutoCAD" on SolidWorks' web site also a contender if this goes to a jury. I think there is a good possibility that the remaining claims will be settled or dismissed before it gets to the trial phase.