Sughrue’s Markman Presentation is Music to the Judge’s Ears


From an article by Adam Silverman
Free Press Staff Writer

For a minute Tuesday morning, The Beatles took over federal court in Burlington.

"Twist and Shout" reverberated through a courtroom as lawyer John Rabena demonstrated a piece of software at the center of a patent dispute between an Essex Junction businessman and Apple Computer Inc. about the popular digital jukebox iTunes.

"My only question," quipped Chief Judge William Sessions III, turning toward the court reporter, "is, did she get the words down?"

The exchange, and the music, was a moment of levity during an otherwise dry hearing.

David Contois, who owns Contois Music & Technology in Essex Junction, filed a lawsuit that accuses Apple -- a Cupertino, Calif., computer manufacturer that revolutionized the digital-music industry with the now-ubiquitous iPod and companion iTunes software for PCs and Macs -- of stealing his patented design for jukebox software and turning it into iTunes.

Contois is seeking a court order to prevent Apple from distributing iTunes, and has requested an unspecified amount of monetary damages and payment to cover legal fees. Contois received a patent in 1999 -- two years before Apple unveiled iTunes -- according to the lawsuit.

Apple denies the allegations and has filed a counterclaim asking for reimbursement of its own legal expenses.

At Tuesday's hearing, in U.S. District Court in Burlington, attorneys for Contois and Apple argued about terminology in the patent and the lawsuit. At stake is which side will set the parameters for future proceedings, such as a jury trial or a motion that asks the judge to declare one side the winner based on legal filings.

Sessions may choose one side's definitions over the other -- a clear victory heading into future hearings -- or he could select some terms proposed by Contois and others by Apple.

Disagreements ranged from specific -- what does "selecting" really mean? -- to general, including whether Contois' software alone, or the program coupled with devices it controls, was the heart of the debate.

John Rabena, a partner with Sughrue Mion, PLLC in Washington D.C. and member of Contois' legal team, said the software was key because it marked a vast improvement over earlier products from other companies.

"Those interfaces were not as intuitive and elegantly simple," he said.

An attorney for Apple disagreed: "The plaintiff was very late to the digital-music game."