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DVR Defense Verdict In a rare finding of patent invalidity, a jury in the U.S. District Court for the Eastern District in Tyler returned a defense verdict for EchoStar Communications Corp. in a patent infringement suit that Austin-based Forgent Networks Inc. filed in 2005. According to e-mailed information from Forgent’s public relations firm, the jury’s May 21 verdict for EchoStar, headquartered in Littleton, Colo., came after Forgent reached settlements totaling $28 million with 10 other defendants in Forgent Networks Inc. v. EchoStar Communications Corp., et al. Forgent sued 15 companies, including EchoStar and three of its subsidiaries, alleging in its original complaint that the defendants’ use of digital video recorder (DVR) technology infringed on a 2001 Forgent patent. U.S. District Judge Leonard Davis presided over the trial, which began on May 14. “We’re obviously disappointed,” Fred Hagans, Forgent’s lead counsel and president of Hagans Burdine Montgomery Rustay & Winchester in Houston, says of the verdict, which Forgent may appeal. “We are currently assessing our options,” says Jay Peterson, Forgent’s chief financial officer. As noted on the verdict form, the jury found EchoStar proved Forgent’s patent claims invalid because of a lack of adequate written description on the original patent application, among other things. “That was our lead defense in the case, and we won on that,” says Rachel Krevans, a partner in Morrison & Foerster in San Francisco and EchoStar’s lead co-counsel with Otis Carroll, a shareholder in Tyler’s Ireland, Carroll & Kelley. Krevans says the original application for Forgent’s patent, filed in 1991, was for video teleconferencing equipment, not a DVR. “The original application was for DVR technology to be implemented in a teleconferencing system,” maintains Hagans, Forgent’s attorney. Calling Mr. Webster It’s bad enough when the 5th U.S. Circuit Court of Appeals turns down a lawyer’s appeal in a per curiam opinion. But it’s even worse when the court describes a lawyer’s conduct with an arcane word that might require a trip to the dictionary for full explanation. Just ask Cletus Erenster, a Houston civil rights lawyer and partner in Washington & Erenster, whose appeal associated with long-running litigation against Dillard Department Stores Inc. was dismissed after the 5th Circuit found that the history of the case reflected “extreme pettifoggery by and on behalf of” appellant Erenster and others. A pettifogger, according to Webster’s New World Dictionary, is “a lawyer who handles petty cases. . . .” “I feel hurt by that. And I don’t agree with it, because civil rights work is important,” Erenster says. Erenster says he has filed numerous suits against Dillard’s alleging the store racially profiled minority customers. He allegedly set up a Web site to solicit clients against Dillard’s that infringed on the department store’s trademark, according to Dillard’s briefs in Evanston Insurance Co. v. Dillard Department Stores Inc., a case in which the 5th Circuit lists Erenster as an interested party-appellant. In 2004, U.S. District Judge Lynn Hughes ordered Erenster’s former firm Chargois & Erenster to pay $143,500 to Dillard’s for attorneys’ fees and litigation costs, according to a brief Erenster filed in the appeal to the 5th Circuit. Dillard’s later filed an abstract of judgment in the case in the hopes of recovering the fees and costs. In his brief, Erenster says he later filed a negligence case in Hidalgo County Court-at-Law No. 5 in which he claimed that Dillard’s abstract judgment improperly infringed on his ability to obtain a loan in that county. Dillard’s brief to the 5th Circuit notes that it filed a motion for an injunction before Hughes, arguing that Erenster’s state petition was a collateral attack on the federal order. Hughes later enjoined Erenster from proceeding with his state negligence suit. “I don’t think the court was right at all in telling the state court it couldn’t proceed. To me it was legally wrong for the federal judge to do the state judge’s job,” says Timothy Hootman, a Houston solo who represents Erenster. Brock Akers, a partner in Houston’s Phillips & Akers who represents Dillard’s in Evanston Insurance, declines to comment on the 5th Circuit’s decision. But should Erenster decide to appeal the ruling, the 5th Circuit panel offered some advice in its opinion. “Appellant and his counsel are warned that any further acts on their parts that would prolong this contumacious litigation will expose them to the full panoply of sanctions and disciplinary actions at the disposal of this court. We trust that these words to the wise will be sufficient.” To that, Erenster notes: “The court has ruled and I respect the court’s ruling.”

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