ODA to Autodesk: In Your Face!

New paperwork is posted to the USPTO Web site in the ongoing irritant between Autodesk and the Open Design Alliance. At this point, I have no idea what is happening, other than the ODA saying to Autodesk, "In your face!" -- to use current slang common amongst teenagers in specific geographic areas.

Here's what I mean. A document posted 28 July is entitled, "Respondent's Opposition to Petitioner's Motion for Leave to Amend Petition for Cancellation." Translated, I think that means "We haven't billed our clients sufficiently."

Seriously, though, and despite the title, the PDF document makes for interesting reading. I get the feeling a different Fenwick & West lawyer is on the case; the text is easier to read and extensively referenced. In short, the ODA's lawyer seems to be saying, 'Autodesk's tactics are getting tiring enough for all their protestations to be thrown out by the USPTO,' such as this sentence page 6:

Autodesk makes these arguments on the basis of its own selective interpretation of deposition's testimony that cannot be given the slightest credence.

And on page 9:

Autodesk has simply failed to read the publically-available documents regarding this issue.

And on page 8:

Such an amendement [by Autodesk] is futile and should not be permitted to waste Respondent's or the Board's time.

Ouch!

The issue here is that Autodesk claims the ODA did not exist in 1998. The upFront.eZine archives for 1998 make for interesting summer reading, since the weekly e-newsletter provided extensive coverage of the founding and subsequent actions of the ODA in 1998. (The 'zine even gets a mention on page 13 of this latest USPTO filing). Some of the ODA's actions back then were outrageous, such as blowing half of the fledging organization's $375,000 initial budget on a single full-page anti-Autodesk ad in the Wall Street Journal that year. 

The ODA laywer is also presenting the question that if Autodesk owned these DWG-related marks for so many years, why did it fail to register them way back then?

Eh? What's That?

On the other side, the ODA does some backtracking by claiming the current ODA president doesn't have English as his first language, and subsequent to a deposition realized he had not understood or answered some questions correctly. And so needed to correct his sworn statements:

...something made plain by the witness' errata...

I've been (unfortunately) in attendance to a disposition (involving my son's car accident). In the Canadian version, at least, there is plenty of time to ruminate, clarify, correct, and pinpoint. This "Oops, I didn't meant that" argument could become a problem for the ODA. But maybe depositions are different in the USA.

The document goes on to extensively rebut Autodesk's claims of the ODA's fraud. We look forward to reading Autodesk's counter-rebuts but are somewhat terrified of the forthcoming document's title -- perhaps, "Rebut to the Rebut to the Rebut, to the Rebut, to the Rebut, to the..."

We also learn for the first time that former ODA president Evan Yares is now giving testimony. Page 11 is a copy of his statement, in which he notes that he communicated regularly with Autodesk executives in the late 1990s, and that they were well aware of the ODA's use of the "OpenDWG" mark.

When you read upFront.eZine's 1998 archives, you learn that Autodesk back then was more concerned with the word "open" than the term "DWG." 

Shhhh

A second document was posted the same day by the ODA's lawyer, but it is titled "Confidential Defendant's Opposition/Response to Motion" and cannot be read. Darn!

Comments

[R. Paul Waddington.]

Ralph,
Autodesk cannot even defend their EULA, its outrageous demands and its dubious claim to be a contract.

There is NOT A SINGLE PERSON in the Autodesk organisation with the ability to simply sit and talk with a customer about these important issues why bother pursuing a completely worthless, costly, fight that will have NO tangible rewards for its customers?

It is way past time for Autodesk's board, and management, to realise the waste and futility of all these actions, pull in their horns, put their tails between their collective legs and slink off and get on with producing better products.

The latter effort will win accolades for Autodesk; its actions against ODA, Vernon and the like simply continue to show, we users, how little Autodesk regard our importance and to draw criticism. Why pursue actions that will add to an already tarnished reputation?

R.Paul Waddington.