A patent licensing company called U.S. Ethernet Innovations LLC has moved for sanctions against Hewlett-Packard Co. and two of its outside law firms, arguing that they improperly made payments to a potential vital fact witness.
In a seven-page motion filed Monday, USEI’s lawyers at Robbins Geller Rudman & Dowd urged a federal judge in Oakland to schedule a hearing on whether sanctions should be issued against HP and its lawyers at K&L Gates and Fish & Richardson. USEI alleges that the company and its lawyers "secretly entered into a ‘consulting agreement’ designed to entice this critical fact witness to switch sides for substantial sums of money and consult with them, and only them, on the substance of this litigation."
USEI sued HP and several other companies in 2009, alleging that they infringed on patents relating to Ethernet technology. USEI, a nonpracticing entity, acquired the patents from 3Com Corp., a now-defunct maker of computer network products. USEI had reason to think the patents were quite valuable: Before it sold them, 3Com asserted them against RealTek Semiconductor Corp. and secured a $70 million post-verdict settlement in 2008.
3Com’s key fact witness in the RealTek case was Richard Baker Jr., the company’s then-head of IP. Nowadays, Baker runs a patent consulting company called New England IP LLC. (Incidentally, he unsuccessfully ran for Congress as a Massachusetts Republican.)
In hopes of duplicating 3Com’s winning formula, USEI says it planned to use Baker as a witness in its case against HP. That effort was stymied, USEI alleges, because HP and its lawyers roped him off by hiring him as a consultant.
Baker’s agreement with HP "guarantees that counsel for Hewlett-Packard will pay Baker substantial sums of money and other valuable consideration that are unreasonable under the circumstances," USEI wrote in Monday’s sanctions motion. "To make matters worse, K&L Gates and Fish & Richardson have frustrated USEI’s investigation into the details of Mr. Baker’s work under these transactions by asserting a claim of privilege for Mr. Baker’s work."
USEI’s lawyers at Robbins Geller want U.S. District Judge Claudia Wilken to block Baker from testifying for HP. They also hope to compel production of documents relating to Baker’s consulting agreement.
We reached out to Mike Bettinger and Rick Williams of K&L Gates and to Seth Sproul of Fish & Richardson, who represent HP, but didn’t hear back by our deadline. Baker declined to comment. In an emailed statement, an HP spokesperson said USEI’s motion was "without substance."
Robbins Geller partner John Herman said via email that "given the serious nature of the conduct detailed in U.S. Ethernet’s motion papers, we think it best for the court to have an opportunity to address this matter before we make any comment."
Jan Wolfe is a senior reporter with The Litigation Daily, a Recorder affiliate.