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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
CRS, LLC Plaintiff, v. TURNER BROADCASTING SYSTEM, INC. Defendant.
) ) ) ) ) ) ) ) ) )
C.A. No. 08-127-GMS
OPENING BRIEF IN SUPPORT OF DEFENDANT TURNER BROADCASTING SYSTEM, INC.'S MOTION TO TRANSFER TO THE WESTERN DISTRICT OF WASHINGTON
John W. Shaw (No. 3362) Karen E. Keller (No. 4489) YOUNG CONWAY STARGATT & TAYLOR, LLP The Brandywine Building 1000 West Street, 17th Floor Wilmington, Delaware 19801 (302) 571-6600 [email protected] OF COUNSEL: Inge Larish KLARQUIST SPARKMAN, LLC One Union Square 600 University Street, Ste 2950 Seattle, Washington 98101
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TABLE OF CONTENTS Page I. II. INTRODUCTION.............................................................................................. 5 STATEMENT OF FACTS AND NATURE AND STAGE OF PROCEEDINGS.................................................. 6 A. B. III. IV. Plaintiff and the Litigation History of the `124 Patent. .............................. 6 The `124 Patent. .......................................................................................... 9
SUMMARY OF ARGUMENT........................................................................ 10 ARGUMENT ................................................................................................... 11 A. B. Legal Standards......................................................................................... 11 The Private Interests Strongly Weigh In Favor of Transfer. .................... 12 1. Convenience of the Witnesses Strongly Supports Transfer.................12 2. Location of Documents Favors Transfer. ............................................15 3. CRS' Choice of Forum is More Easily Overcome Because There is No Rational and Legitimate Reason to Litigate in This Forum and Because Transfer is To CRS' Home Turf. .........................................................16 4. There Will Be No Prejudice or Delay if Transfer is Granted. .............18 C. The Public Interests Strongly Weigh In Favor of Transfer....................... 19 1. The Western District of Washington Has Substantial Familiarity With The Patent-In-Suit................................................................................19 2. Trying This Case In the Western District Along With the Valve and TGN Litigation on the Same Patent Will Be More Efficient and Less Expensive Because The Pending Western District Litigations Will Require a Substantial Overlap of Court Resources and Witnesses......20 3. The Case Handling Statistics for the Western District of Washington Indicate That it Can Resolve This Matter Quickly. .............................20 4. Local Interest in Adjudicating Local Disputes. ...................................21 D. This Case Could Have Been Brought in the Western District of Washington................................................................ 22
V.
CONCLUSION ................................................................................................ 22
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TABLE OF AUTHORITIES Cases Page
3COM Corp. v. D-Link, No. 03-014-GMS (D. Del April 25, 2003)................................................................ 9, 11 Affymetrix, Inc. v. Synteni, Inc., 28 F. Supp. 2d 192 (D. Del. 1998)........................................................................ 8, 9, 13 Allergan, Inc. v. Alcon Labs., C.A. No. 02-1682-GMS, 2003 U.S. WL 473380 (D. Del. Feb. 25, 2003) ................... 14 Altera Corp. v. XiLinx, Inc., No. 95-242-JJF (D.Del. March 29, 1996)................................................................ 16-17 Am. Sensor Rx., Inc. v. Banner Pharmcaps, Inc., C.A. No. 06-1929, 2006 WL 2583450 (D.N.J. Sept. 6, 2006) ..................................... 17 Bayer Bioscience N.V. v. Monsanto Co., C.A. No. 03-023 GMS, 2003 WL 1565864 (D.Del. March 25, 2003) ......................... 14 Burroughs Wellcome Co. v. Giant Food, Inc., 392 F. Supp. 761 (D. Del. 1975) ................................................................................... 13 Conopco, Inc. v. Pfizer, Inc. and Princeton Biomedical Corp., No. 01-308-JJF (D. Del. November 15, 2001) ............................................................. 18 Cont'l Cas. Co. v. Am. Home Assurance Co., 61 F.Supp. 2d 128 (D.Del. 1999) .................................................................................. 13 Cont'l Grain Co. v. Barge FBL-585, 364 U.S. 19 (1960).......................................................................................................... 7 EEOC v. Univ. Pennsylvania, 850 F.2d 969 (3d Cir. 1988), aff'd 493 U.S. 182 (1990) ................................................ 7 Green Isle Partners, Ltd. v. The Ritz-Carlton Hotel, Co., No. 01-202-JJF (D. Del. November 2, 2001) .................................................................13 Judin v. United States, 110 F.3d 780 (Fed. Cir. 1997)....................................................................................... 15 Jumara v. State Farm Ins. Co., 55 F.3d 873 (3d Cir. 1995)................................................................................ 7, 8, 9, 17 Martin-Trigona v. Meister, 668 F.Supp. 1, 2 (D. D.C. 1987) ................................................................................... 13 Mentor Graphics Corp. v. Quickturn Design Sys., 77 F.Supp. 2d 505 (D. Del. 1999)................................................................................... 9
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Network Commerce v. Microsoft Corp., 260 F. Supp. 2d 1034 (W.D. Wash. 2003)........................................................ 2, 3, 5, 16 Pennwalt Corp. v. Purex Indus., Inc., 659 F.Supp. 287 (D. Del. 1986)...................................................................................... 9 Plum Tree, Inc. v. Stockment, 488 F.2d 754 (3d Cir. 1973)........................................................................................ 7, 8 Providian Life and Health Ins. Co. v. Cuna Mut. Ins. Soc'y, No. 96-cv-1797, 1996 WL 153212 (E.D. Pa. Mar. 29, 1996) ...................................... 17 Shutte v. Armco Steel Corp., 431 F.2d 22 (3d Cir. 1920)....................................................................................... 12-13 Soloman v. Cont'l Am. Life Ins. Co., 472 F.2d 1043 (3d Cir. 1973)........................................................................................ 17 Stewart Org., Inc. v. Ricoh Corp., 810 F.2d 1066 (11th Cir. 1987) ................................................................................... 7, 8 Sumito Mitsubishi Silicon Corp. v. MEMC Elec. Materials, Inc., 2005 WL 735880 (D. Del. 2005) .................................................................................. 13 Van Dusen v. Barrack, 376 U.S. 612 (1964)........................................................................................................ 7 Virgin Wireless, Inc. v. Virgin Enters, Ltd., 201 F.Supp. 2d 294 (D. Del. 2002)................................................................................. 7 Waste Distillation Tech., Inc. v. Pan Am Res., Inc., 775 F.Supp. 759 (D. Del. 1991) ................................................................................ 9, 13
Docketed Cases CRS, LLC v. Bitarts, Civ. No. 2:05-cv-0437 (W.D. Wash. Mar. 17, 2005); .................................................... 3 CRS, LLC v. IGN , Civ. No. 2:07-cv-00878 (W.D. Wash. Jun. 7, 2007); ..................................................... 3 CRS, LLC v. Valve Corporation, Civ. No. 2:08-cv-00361 (W.D. Wash. Mar. 3, 2008) .................................................. 3,4 Network Commerce, Inc. v. Microsoft Corp., Civ. No. 2:01-cv-01991 (W.D. Wash. Dec. 6, 2001) ..................................................... 3 Network Commerce, Inc. v. Preview Sys., Civ. No. 2:00-cv-01790 (W.D. Wash. Oct. 18, 2000) .................................................... 3
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Network Commerce, Inc. v. Liquid Audio, Civ. No. 2:01-cv-01540 (W.D. Wash. Sep. 27, 2001).................................................... 3 Network Commerce, Inc. v. Rainbow Tech., Civ. No. 2:01-cv-01504 (W.D. Wash. Sep. 21, 2001).................................................... 3 Statutes 28 U.S.C. § 1404(a) .............................................................................................. 2, 7, 8, 19 28 U.S.C. § 1391(a), (c).................................................................................................... 19
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DEFENDANT TURNER BROADCASTING SYSTEM, INC.'S BRIEF IN SUPPORT OF ITS MOTION TO TRANSFER I. INTRODUCTION
This is an action for patent infringement. The Plaintiff, CRS, LLC ("CRS") is a Washington corporation based in Seattle, Washington. The Defendant, Turner Broadcasting System, Inc. ("TBS, Inc.") is a Georgia corporation with its principal place of business in Atlanta, Georgia. The technology of the patent was developed in Seattle, Washington in the Western District of Washington. The named inventors and other key witnesses continue to reside in the Seattle area, are not party witnesses, and are not subject to this Court's compulsory process. There are no witnesses, no documents and no connections to the Delaware forum. Under these circumstances, TBS, Inc. respectfully submits that the convenience of the parties and witnesses and the interest of justice will be best served if the present patent dispute is litigated in the Western District of Washington. The interests of justice also favor litigating this action in Washington because Plaintiff initiated a concurrent action in the Western District of Washington at Seattle involving the same patent against another defendant, Valve Corporation. Indeed, the Plaintiff has filed at least three actions in the Western District of Washington asserting the same patent, and Plaintiff's predecessor has previously filed at least four actions asserting the same or a parent patent. There is also ongoing litigation filed by TGN, Inc., a subsidiary of TBS, Inc., seeking a declaratory judgment of noninfringement and invalidity on the same patent and use of the same process at issue in this lawsuit. Because there is no rational connection to the District of Delaware, because key nonparty witnesses can be compelled to appear at trial in the Western District of Washington, and because the Western District of Washington will necessarily adjudicate many of the claims on the same
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or similar technology as pending in this Court, Defendant TBS, Inc. respectfully requests that this Court transfer this case to the Western District of Washington pursuant to 28 U.S.C. § 1404(a) and submits this brief in support. II. A. STATEMENT OF FACTS AND NATURE AND STAGE OF PROCEEDINGS Plaintiff and the Litigation History of the `124 Patent.
Plaintiff CRS, LLC is a Washington state company based in Seattle that is in the business of technology licensing. See Ex. A, License Renewal and Annual Report of CRS, LLC filed December 5, 2007. Plaintiff CRS purchased United States Patent No. 6,073,124 ("`124 Patent") in 2003 out of bankruptcy proceedings for the former Network Commerce, Inc. company ("Network Commerce") during a pending patent infringement action against Microsoft in the Western District of Washington. The Bankruptcy asset sale orders indicates that Plaintiff CRS purchased the `124 Patent, the rights to any infringement claims thereto and the "Microsoft" claim from the then pending litigation initiated by Network Commerce against Microsoft. See Ex. B, Network Commerce, Inc. v. Microsoft Corp., Order Approving Sale, dated February 9, 2003. The Washington State corporate filings list three members for CRS: Mr. Reed Corry, Mr. Joseph Schocken, and Mr. Robert Rohde. See Ex. C, License Renewal and Annual Report of CRS, LLC filed November 29, 2006. Shortly after acquiring the rights to the `124 Patent and the ongoing lawsuit, Mr. Rohde appeared as counsel on behalf of CRS and moved for CRS to intervene in the lawsuit. See Ex. D, Network Commerce, Inc. v. Microsoft Corp., Motion to Intervene, dated March 24, 2004. CRS also moved to substitute for Network Commerce. The Western District of Washington granted the motion to intervene. See Ex. E, Network Commerce,
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Inc. v. Microsoft Corp., Order Granting Motion to Intervene, dated April 20, 2004. Shortly thereafter, the Court granted Microsoft's motion for summary judgment of noninfringement of the `124 Patent. See Network Commerce, 260 F. Supp. 2d 1042, 1046-47 (W.D. Wash. 2003). As noted above, the judgment of noninfringement was affirmed by the Federal Circuit on appeal. See Network Commerce, 422 F.3d 1353 (Fed. Cir. 2005). CRS has filed at least three patent infringement lawsuits asserting the `124 Patent in the Western District of Washington. See CRS, LLC v. Bitarts (W.D. Wash. 2:05-cv-0437-RSL); CRS, LLC v. IGN (W.D. Wash. 2:07-cv-00878-CMP); CRS, LLC v. Valve (W.D. Wash. 2:08-cv00361-RAJ). Upon information and belief, its predecessor-in-interest, Network Commerce, had previously filed at least four patent infringement actions asserting either the `124 patent or its parent patent, United States Patent No. 6,141,698 ("the `698 Patent"), in the Western District of Washington. See Network Commerce, Inc. v. Preview Sys. (W.D. Wash. 2:00-cv-01790); Network Commerce, Inc. v. Liquid Audio (W.D. Wash. 2:01-cv-01540); Network Commerce, Inc. v. Microsoft Corp. (W.D. Wash. 2:01-cv-01991); Network Commerce, Inc. v. Rainbow Tech., (W.D. Wash. 2:01-cv-01504). Upon information and belief, this litigation is the first time CRS or its predecessor has asserted the `124 Patent outside of the Western District of Washington.1 Coppola Decl. ¶9. Most recently, on March 3, 2008 the same day as filing this matter Plaintiff CRS filed Case No. 2:08-cv-00361 in the Western District of Washington asserting the `124 Patent against Valve Corporation ("Valve litigation") and accusing Valve's Steam website of allegedly
1
TBS, Inc. has recently learned that CRS filed a second suit in Delaware, CRS v. Reflexive Entertainment. See C.A. No. 08-cv-00200-SLR. Except for the recently filed Reflexive case, TBS, Inc. is unaware of any other patent lawsuit filed by Plaintiff or Network Commerce outside of the Western District of Washington. Coppola Decl. ¶12.
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infringing the `124 Patent. Valve filed its answer in the Western District of Washington on April 24, 2008. The accused Valve website may be used, among other things, to purchase computer games over the internet. Ex. F, CRS, LLC v. Valve Corporation, Dkt No. 13, Defendant Valve Corporation's Answer and Counterclaim. On March 3, 2008, Plaintiff filed suit against Defendant TBS, Inc. in Delaware with no apparent rationale for filing in this forum. TBS, Inc. is a Georgia Corporation, based in Atlanta, Georgia. Vigilante Decl. ¶6. TBS, Inc. has no offices or operational presence in Delaware. Vigilante Decl. ¶4. The Complaint alleges that use of the GameTap website allegedly infringes the `124 Patent. GameTap is a videogame website that is maintained by and on behalf of TGN, Inc., a subsidiary of TBS, Inc. TGN is also a Georgia corporation with no employees, property, or registered agent for service of process in Delaware. Vigilante Decl. ¶2. Among other things, GameTap may be used to purchase computer games over the internet. TBS, Inc. filed its answer in this Court on April 25, 2008, one day after Valve, alleging many of the same invalidity defenses as asserted in the Valve litigation. See Ex. F, CRS, LLC v. Valve Corporation, Dkt No. 13, Defendant Valve Corporation's Answer and Counterclaim. On April 30, 2008, TGN, Inc.("TGN") filed suit against CRS in the Western District of Washington seeking a declaratory judgment on the invalidity of the `124 Patent and noninfringement of GameTap. The TGN lawsuit is currently pending before The Honorable Judge Marsha Pechman, the Judge that previously construed the claims of the `124 Patent and has substantial experience with the technology of the `124 Patent. See Network Commerce v. Microsoft Corp., 260 F. Supp. 2d 1034, 1038-1041 (W.D. Wash. 2003); Network Commerce, 260 F. Supp. 2d at 1046-47, aff'd Network Commerce, 422 F.3d at 1363.
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B.
The `124 Patent.
The `124 Patent which is titled "Method and System for Securely Incorporating Electronic Information Into An Online Purchasing Application," concerns the delivery, purchase, and licensing of electronic merchandise (such as software or audio or video files) over a network such as the internet. The individuals listed as inventors of the `124 Patent are Ganapathy Krishnan, John Guthrie, and Scott Oyler. See Ex. G, U.S. Patent No. 6,073,124. Per the statements on the face of the patent, all three individuals lived in the Seattle area at the time the invention was developed. Id. All three initially assigned their alleged inventions to the predecessor of Network Commerce, Inc., ShopNow.com. ShopNow.com was also based in the Seattle, Washington area. Coppola Decl. ¶12. Upon information and belief, all three individuals currently reside in the Seattle area. Coppola Decl. ¶¶ 3-5. Although the inventors had sought to obtain a much broader patent when they filed their original application in 1997, they had to narrow their claims significantly because prior art had already described numerous different systems for purchasing, delivering and licensing electronic merchandise over a network. Additionally, the application for the `124 Patent was a continuation-in-part of an application earlier in 1997, application no. 08/792,719 ("`719 application") which issued as U.S. Patent No. 6,141,698, filed in the name of only two of the three inventors eventually named on the `124 Patent, Ganapathy Krishnan and Scott Oyler. See Ex. H, U.S. Patent No. 6,141,698. The `124 Patent is a continuation-in-part of the parent patent. See Ex. G, U.S. Patent No. 6,073,124. Thus, in adding the additional inventor on the `124 Patent, the inventors also claimed new matter. The priority date of any given claim in the `124 Patent thus will depend, in part, on whether it contains the new matter added. See Ex. J, Manual
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of Patent Examination and Procedure § 201.11, at 200-59, 60 (8th ed. 2007, incorporating rev. 6). III. 1. SUMMARY OF ARGUMENT
Transferring this case to the Western District of Washington will serve the
interests of justice and judicial economy because the Western District of Washington has substantial experience with the `124 Patent and because Plaintiff affirmatively chose to file a concurrent litigation in the Western District of Washington which will require the Western District to consider many, if not most of the issues pertaining to the validity and claim construction that will be before this Court. Additionally, the case filed by TGN, Inc. in the Western District of Washington which will involve many of the same issues relating to the `124 Patent is currently pending before Judge Marsha Pechman, who has previously construed the claims of the `124 Patent and is familiar with the technology thereof. The efficiency that can be gained by leveraging the knowledge and experience of the Western District of Washington warrants transfer. 2. Plaintiff CRS' choice of forum is more easily overcome because this lawsuit has
no apparent rational relationship to the state of Delaware, and Defendant is requesting transfer to Plaintiff's home turf and the location of the development of the technology of the `124 Patent. 3. Transferring this case to the Western District of Washington will also serve the
convenience of the parties and witnesses. Delaware is not convenient for any of the parties. No documents or witnesses are located in Delaware. Plaintiff is located in the Western District of Washington and many key non-party witnesses are located beyond the subpoena power of this Court in the Western District of Washington.
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IV. A. Legal Standards.
ARGUMENT
Congress designed the transfer statute, 28 U.S.C. 1404(a), "`to prevent the waste of time, energy and money' and `to protect litigants, witnesses and the public against unnecessary inconvenience and expense.'" Van Dusen v. Barrack, 376 U.S. 612, 616 (1964), quoting Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26 (1960): see also Virgin Wireless, Inc. v. Virgin Enters, Ltd., 201 F. Supp. 2d 294, 299 (D. Del. 2002). Application of the statute is committed to the sound discretion of the Court. EEOC v. Univ. Pennsylvania, 850 F.2d 969, 972, 977 (3d Cir. 1988), aff'd, 493 U.S. 182 (1990). Deference to the plaintiff's choice of forum does not trump the Congressional intent behind Section 1404(a) that federal litigation proceed in the district best suited to the interests of justice and convenience of the parties and witnesses. See Plum Tree, Inc. v. Stockment, 488 F.2d 754, 757-58 (3d Cir. 1973) (noting that the three Congressionally-articulated factors cannot be "automatically outweighed" by the parties' choice of forum); Stewart Org., Inc. v. Ricoh Corp., 810 F.2d 1066, 1076 (11th Cir. 1987) (Tjoflat, J. concurring) ("In enacting section 1404(a), Congress instructed the federal courts to transfer civil actions whenever they deem transfer appropriate."), aff'd, 487 U.S. 22 (1988). The Court is to "determine, on an individualized . . . basis, whether the convenience and fairness considerations weigh in favor of transfer." Jumara v. State Farm Ins. Co., 55 F.3d 873, 883 (3d Cir. 1995) (citations omitted). To make this determination, the Court must "examine `all relevant factors to determine whether, on balance, the litigation would more conveniently proceed and the interests of justice [would] better be served by a transfer to a different forum.'"
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Affymetrix, Inc. v. Synteni, Inc., 28 F. Supp. 2d 192, 196-97 (D. Del. 1998) (citation omitted). The relevant factors include both private and public interests. Id. at 197. The private interests include: (1) the convenience of the expected witnesses; (2) the convenience of the parties; (3) the location of records and other documents; (4) the plaintiff's choice of forum and defendant's preferred forum; and (5) whether the claim arose elsewhere. The public interests include: (1) the practical considerations making trial easy, expeditious, or inexpensive; (2) administrative difficulties posed by the relative congestion of the two dockets in the respective fora; (3) any local interest in deciding local controversies at home; (4) the ability of the court to enforce the judgment. Affymetrix, 28 F. Supp. 2d at 197; see also Jumara, 55 F.3d at 879. Although TBS, Inc. bears the burden of overcoming CRS' choice of forum and showing that this Court should transfer, see e.g., Waste Distillation Tech., Inc. v. Pan Am. Res., Inc., 775 F. Supp. 759, 764 (D. Del. 1991), proper analysis of these factors here leads to the conclusion that this case should be transferred to the Western District of Washington, the Plaintiff's home turf, as demonstrated below. B. The Private Interests Strongly Weigh In Favor of Transfer. 1. Convenience of the Witnesses Strongly Supports Transfer.
This Court has considered the ability to compel the attendance at trial of non-party witnesses an important, if not key, factor in the transfer inquiry. See Mentor Graphics Corp. v. Quickturn Design Sys., 77 F. Supp. 2d 505, 510 (D. Del. 1999) ("The convenience of witnesses is often an important factor in a transfer inquiry.") (citing 15 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction and Related Matters § 3851, at 415 (2d ed. 1986)); Affymetrix, 28 F. Supp. 2d at 205 ("It is desirable to hold trial at a place where the personal
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attendance of witnesses through the use of subpoena power can be reasonably assured.") (quoting Pennwalt Corp. v. Purex Indus., Inc., 659 F. Supp. 287, 291 (D. Del. 1986)); see also 3COM Corp. v. D-Link, No. 03-014-GMS, Memorandum and Order, at 3-4 (D. Del April 25, 2003) (Ex K). Absent a transfer in this case, Defendant will not be able to compel the attendance of key witnesses located in the Western District of Washington - Seattle area at trial in Delaware. Significantly, all three named inventors, Ganapathy Krishnan, John Guthrie, and Scott Oyler, reside in the Seattle area. Coppola Decl. ¶¶3-5. All three were identified in previous litigation by Network Commerce and CRS as "[t]he persons most knowledgeable concerning the conception and reduction to practice of the claimed invention". See Larish Decl. Ex. A, Network Commerce, Inc. v. Microsoft Corp., Network Commerce Answers to Microsoft's First Set of Interrogatories Response to Interrogatory No. 2. There is a heightened likelihood that the inventors' testimony will be required because, as noted above, the `124 Patent claims priority from a previously filed application to which new material was added. Upon information and belief, Defendant further believes that one or more of the inventors' pre-filing activities may have invalidated the patent. Their testimony (and the testimony of other former employees) is important for this reason as well. All three of the named inventors are not party employees. Thus, all three inventors are not subject to this Court's compulsory process. These key witnesses are also likely to be adverse to voluntarily appearing at trial in Delaware to assist Defendant in its invalidity defense and case against the patent which allegedly embodies their invention.
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Mr. Dwayne Walker, who also resides in Seattle, is the former President of Network Commerce and the president of its predecessor company. Coppola Decl. ¶14 Upon information and belief, he was instrumental in directing research regarding technology associated with the `124 Patent, and its parent, the `698 Patent. Upon information and belief, Mr. Walker is thus a fact witness regarding the early development of the invention of the `124 Patent, the priority date, and other invalidity issues. Mr. Walker was also identified as a key witness in at least one set of initial disclosures in prior litigation by Network Commerce/CRS in the Western District of Washington. See Larish Decl. Ex. B, Network Commerce, Inc. v. Microsoft Corp., Network Commerce Initial Disclosures. Mr. Walker is a not a party witness and not subject to the compulsory process of this Court. Defendant may need to call other former employees of the now defunct Network Commerce company located in Seattle as fact witnesses as well. See id. These individuals are likely to be knowledgeable regarding the development of the invention, key dates, prior art and Defendant's invalidity defenses. Finally, because the Seattle area was and remains a central location for the development of the technology of the `124 Patent, it is likely that numerous other witnesses will be located in the Western District of Washington. Given the importance and potential number of non-party witnesses in the Western District of Washington, this factor weighs heavily in favor of a transfer to the Western District of Washington. See 3COM Corp. v. D-Link, No. 03-014-GMS, Ex. K at 4. ("At least two witnesses with knowledge of allegedly invalidating prior art are subject to compulsory process in northern California, but not Delaware. Even if these two witnesses were willing to travel to
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Delaware to testify in this Court, it is certainly very inconvenient for them to do so, especially compared to traveling to a court in the state of their residence and employment."). 2. Location of Documents Favors Transfer.
No documents related to the case are known to exist in Delaware. Upon information and belief, many of the documents needed by Defendant for its defense are in Seattle. When CRS purchased the `124 Patent out of the Network Commerce bankruptcy, it also purchased the rights to the then ongoing lawsuit between the (former) Network Commerce company and Microsoft (as noted above, this litigation was eventually resolved in favor of Microsoft on noninfringement grounds). Ex. I, Asset Purchase Agreement dated November 24, 2003. Mr. Rohde, the attorney appearing for CRS in the Microsoft action, is the same attorney as is representing CRS in this matter. Upon information and belief, CRS has the documents from Network Commerce relevant to the `124 Patent, along with documents related to the Network Commerce v. Microsoft litigation. Thus, these documents should be in the Western District of Washington at Seattle.2 TBS, Inc. will also need to inquire whether documentation still exists with individuals involved in the development and maintenance of the systems related to the invention of the `124 Patent. These documents would also be in Seattle to the best of TBS, Inc.'s knowledge and belief. Defendant TBS, Inc.'s counsel has documents that Network Commerce produced in the litigation with Microsoft and which were archived as permitted by the protective order in Network Commerce v. Microsoft Corp. TBS, Inc.'s counsel wrote to Plaintiff's counsel on April 11, 2008 to ascertain whether Plaintiff and its counsel have maintained Network Commerce documents and to request permission pursuant to the protective order entered in Network Commerce v. Microsoft Corp. to use the documents in the current litigation. As of the filing of this motion, TBS, Inc. has not received a response. Larish Decl. ¶19.
2
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Because TBS, Inc. will likely be required to go to multiple non-party Seattle sources for documents, the location of the documents favors transfer to the Western District of Washington at Seattle. 3. CRS' Choice of Forum is More Easily Overcome Because There is No Rational and Legitimate Reason to Litigate in This Forum and Because Transfer is To CRS' Home Turf. a) No Rational Relationship Exists With the Delaware Forum.
Although the plaintiff's choice of forum is entitled to deference in this inquiry, and should not be lightly disturbed, Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1920), when the plaintiff lacks a rational and legitimate reason to litigate in the forum, the transfer of a case to a more appropriate forum is less inconvenient. See Sumito Mitsubishi Silicon Corp. v. MEMC Elec. Materials, Inc., 2005 WL 735880 (D. Del. 2005); Waste Distillation Tech., Inc. v. Pan Am Res., Inc., 775 F. Supp. 759, 764 (D. Del. 1991); Cont'l Cas. Co. v. Am. Home Assurance Co., 61 F. Supp. 2d 128, 131 (D. Del. 1999); see also See Martin-Trigona v. Meister, 668 F. Supp. 1, 2 (D.D.C. 1987); Green Isle Partners, Ltd. v. The Ritz-Carlton Hotel, Co., No. 01-202-JJF, Memorandum Order, at 4-5 (D. Del. November 2, 2001) (Ex. L). Similarly, where a plaintiff selects a forum other than its "home turf," less deference is given to the plaintiff's choice of forum. See generally, Affymetrix. 28 F. Supp. 2d 192, 198-200 (D. Del. 1998); see also Burroughs Wellcome Co. v. Giant Food, Inc., 392 F. Supp. 761, 763 (D. Del. 1975) (Stapleton, J.) ("Where the forum selected by plaintiff is connected neither with the plaintiff nor with the subject matter of the lawsuit, meeting the burden of showing sufficient inconvenience to tip the `balance' of convenience `strongly in favor of defendant' will ordinarily be less difficult."); Ex. L at 4-5.
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In this case, there is no rational connection between Plaintiff CRS, Defendant TBS, Inc., this lawsuit and this district. TBS, Inc. has no office in Delaware. Vigilante Decl. ¶4. TBS, Inc. has no registered agent in Delaware. Vigilante Decl. ¶5. TBS, Inc. has no operational presence in Delaware. Vigilante Decl. ¶4. TBS, Inc. is not incorporated in Delaware and, in fact, is a Georgia corporation with its principal place of business in Atlanta, Georgia. Vigilante Decl. ¶6. Similarly, Plaintiff CRS is not connected to this forum. Not only is Delaware not Plaintiff's "home turf," the location of the requested transfer, the Seattle division of the Western District of Washington, is. Plaintiff CRS is a Washington corporation that has its principal place of business in Seattle, Washington. Indeed, CRS previously intentionally and repeatedly chose the Western District of Washington.3 Because this lawsuit has no apparent rational relationship to the state of Delaware, and Defendant is requesting transfer to Plaintiff's home turf, Plaintiff's choice of forum is entitled to considerably less deference and transfer is appropriate. See, e.g., Bayer Bioscience N.V. v. Monsanto Co., C.A. No. 03-023 GMS, 2003 WL 1565864, at *2 (D. Del. March 25, 2003) (noting that "while the defendant is a Delaware entity, and should reasonably expect to litigate in this forum there is little connection between Delaware and this action or the parties."); Allergan, Inc. v. Alcon Labs., C.A. No. 02-1682-GMS, 2003 U.S. WL 473380, at *2 (D. Del. Feb. 25, 2003) (granting transfer and noting "there is little connection between Delaware and this action or the parties.").
3
CRS sued IGN in the Western District of Washington. See CRS, LLC v. IGN (W.D. Wash. 2:08-cv-00878-CMP). IGN is a California company which was incorporated in Delaware and thus presumably had some rationale reason to expect to litigate in Delaware. Coppola Decl. ¶10.
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b)
Plaintiff Affirmatively Chose To Create a Concurrent Pending Lawsuit in the Western District of Washington.
Finally, CRS chose to sue TBS, Inc. in Delaware on the same day that it filed a sister lawsuit on the same patent against another company, Valve, in the Western District of Washington. Thus, Plaintiff affirmatively choose to create a pending lawsuit that would likely invoke many of the same defenses of invalidity and require the court of its home turf, the Western District of Washington, to be considering the same patent, potentially construing the same patent claims, and vying for the resources of the Seattle-based non-party witnesses as this Court. 4. There Will Be No Prejudice or Delay if Transfer is Granted.
There is little possibility for prejudice here because TBS, Inc. makes this motion at the onset of this case. TBS, Inc. answered on April 25, 2008, a scheduling order has not been entered and discovery has not yet begun. Plaintiff's time to trial in the Western District of Washington is also likely to be faster, if anything, in the Western District of Washington than in this District, with median times to trial being respectively 18 and 27 months. Larish Decl. Ex. C, U.S. District Court Judicial Caseload Profiles for Western District of Washington and the District of Delaware. Plaintiff should not be prejudiced by this potentially faster resolution of its claims particularly as under Rule 11, Plaintiff is required to have thoroughly investigated its claims of alleged infringement prior to initiating this litigation. See e.g. Judin v. United States, 110 F.3d 780, 784-85 (Fed. Cir. 1997) (Rule 11 "requires that the inquiry be undertaken before the suit is filed, not after. Defendants have no choice when served with a complaint if they wish to avoid a default. . . Rule 11 prohibits
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imposing those costs upon a defendant absent a basis, well-grounded in fact, for bringing the suit."). Thus, it is unlikely that transfer of this case would prejudice this case. This factor favors transfer. C. The Public Interests Strongly Weigh In Favor of Transfer. 1. The Western District of Washington Has Substantial Familiarity With The Patent-In-Suit.
To date, the Western District of Washington has considered the patent-in-suit or its parent patent in at least six prior lawsuits, not counting the most recently filed case by Plaintiff and the TGN litigation. The Western District of Washington has construed the claims of the patent, and rendered a judgment of noninfringement. In particular, Judge Pechman of the Western District of Washington has gained substantial familiarity with the technology and claims of the `124 Patent. Judge Pechman has construed the claims of the `124 Patent. See Network Commerce, 260 F. Supp. 2d at 1038-1041; Network Commerce, 260 F. Supp. 2d at 1046-47, aff'd Network Commerce, 422 F.3d at 1363. The efficiency that can be gained by leveraging the knowledge and familiarity that Judge Pechman and the Western District of Washington have already accumulated warrants transfer of this case to the Western District of Washington. See also Conopco, Inc. v. Pfizer, Inc. and Princeton Biomedical Corp., No. 01-308-JJF, Memorandum Order (D. Del. November 15, 2001). ("Judge Hayden's previous rulings on the parent patents enable her to confront any new issues that might arise under the derivative `660 patent without any duplication of effort.") (Ex. N); Altera Corp. v. XiLinx, Inc., No. 95-242-JJF, Memorandum Opinion (D. Del. March 29, 1996) ("judicial economy is better served by transferring this case to the Northern District of California. The district court in California is more familiar with the
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complex technologies, product structures and prior art involved as well as at least one of the patents.") (Ex. M). 2. Trying This Case In the Western District Along With the Valve and TGN Litigation on the Same Patent Will Be More Efficient and Less Expensive Because The Pending Western District Litigations Will Require a Substantial Overlap of Court Resources and Witnesses.
Plaintiff, through its own choice, filed a lawsuit on the same patent in the Western District of Washington. This pending case will require the Western District to evaluate many, if not all, of the validity defenses pending before this Court. As noted above, the validity issues will likely require reliance on the same non-party witnesses that will be required to appear in two forums. Additionally, the TGN litigation involves the same patent and the activities concerning the GameTap website alleged to be infringing in this case. The TGN litigation will likely require the same witnesses, documents and resources as the Valve litigation, filed by Plaintiff in the Western District of Washington. The pending TGN litigation will also require the Western District to evaluate many if not all of the validity defenses pending before the Western District in the Valve litigation and before this Court. While this Court is amply qualified to familiarize itself with the technology and patent issues, transfer is appropriate because it would be inefficient for two different courts to "get up to speed" on the same subject matter, the same witnesses, and many of the same legal issues. 3. The Case Handling Statistics for the Western District of Washington Indicate That it Can Resolve This Matter Quickly.
The next public interest factor, the administrative difficulties posed by the relative congestion of the dockets in the respective fora, weighs in favor of transfer. See Soloman v.
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Cont'l Am. Life Ins. Co., 472 F.2d 1043, 1047 (3d Cir. 1973) (approving consultation of official statistics when evaluating the public interest). As noted above, the Judicial Caseload Profile District Court Statistics indicate that the time from filing to disposition between the two courts is 27 months in this Court and 18 months in the Western District of Washington. Larish Decl. Ex. C, U.S. District Court Judicial Caseload Profiles for Western District of Washington and the District of Delaware. While this Court has proven its ability to handle a heavy caseload, the Jumara analysis requires consideration of this factor. See, e.g., Am. Sensor Rx., Inc. v. Banner Pharmcaps, Inc., C.A. No. 06-1929, 2006 WL 2583450, at *7 (D.N.J. Sept. 6, 2006) (transferring case in part because Middle District of North Carolina has a less congested docket with a shorter median time to trial); Providian Life and Health Ins. Co. v. Cuna Mut. Ins. Soc'y, No. 96-cv-1797, 1996 WL 153212, at *4 (E.D. Pa. Mar. 29, 1996) (granting motion to transfer partly because Western District of Wisconsin had shorter median times to disposition and trial which would "promote the expeditious resolution of this case"). Here, consideration of this factor, favors transfer. 4. Local Interest in Adjudicating Local Disputes.
There are no local ties to the State of Delaware. The Western District of Washington, in contrast, has specific ties to this litigation. The technology that is the stated subject of the patent was developed in the Western District of Washington. The inventors of the patent all reside in the Western District of Washington. The Plaintiff who is the alleged current patent owner resides in the Western District of Washington. Thus, this factor weighs in favor of the transfer to the Western District of Washington.
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The public interest factors therefore favor transfer to the Western District of Washington. D. This Case Could Have Been Brought in the Western District of Washington.
In a patent infringement action, venue is proper with respect to a defendant corporation in any judicial district where it resides. 28 U.S.C. § 1391(a), (c)). A corporation is deemed to reside in any district in which it is subject to personal jurisdiction at the time the action is commenced. 28 U.S.C. § 1391(c). There is no issue that the Western District of Washington has jurisdiction over CRS which is incorporated in Washington and has its office in Seattle. Therefore, this case could have been brought in the Western District of Washington, making that Court a proper transferee forum. 28 U.S.C. § 1404(a). V. CONCLUSION
For all the foregoing reasons, Defendant respectfully requests that this Court grant this motion and transfer this case to the United States District Court for the Western District of Washington.
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YOUNG CONWAY STARGATT & TAYLOR, LLP
/s/ John W. Shaw John W. Shaw (No. 3362) [email protected] Karen E. Keller (No. 4489) [email protected] The Brandywine Building 1000 West Street, 17th Floor Wilmington, Delaware 19801 (302) 571-6600
Of COUNSEL: Inge A. Larish (admitted pro hac vice) [email protected] KLARQUIST SPARKMAN, LLP One Union Square 600 University Street, Suite 2950 Seattle, Washington 98101 Telephone: 206-264-2960 Facsimile: 206-624-2719 J. Christopher Carraway [email protected] KLARQUIST SPARKMAN, LLP One World Trade Center 121 S.W. Salmon Street, Suite 1600 Portland, Oregon 97204 Telephone: 503-595-5300 Facsimile: 503-595-5301 Attorneys for Defendant Turner Broadcasting System, Inc. DATED: May 9, 2008
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 v. MICROSOFT CORPORATION, Defendant. NETWORK COMMERCE, INC, Plaintiff, No. C01-1991P ORDER GRANTING MOTION TO INTERVENE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
This matter comes before the Court on CRS, LLC's motion to intervene as additional plaintiff, as CRS has purchased rights to this lawsuit from Network Commerce, Inc. (Dkt. No. 91). There being no opposition to the motion, the Court hereby GRANTS the motion. The Court will make an independent determination on plaintiff NCI's motion for substitution of CRS as plaintiff once the briefing on that motion is complete.
The Clerk is directed to send copies of this order to all counsel of record. Dated: April 21, 2004 /s/ Marsha J. Pechman Marsha J. Pechman United States District Judge
ORDER GRANTING MOTION TO INTERVENE - 1
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United States Patent
Krishnan et al.
[54]
[19]
6,073,124 Jun. 6,2000
METHOD A N D SYSTEM FOR SECURELY INCORPORATING ELECTRONIC INFORMATION INTO A N ONLINE PURCHASING APPLICATION Inventors: Ganapathy Krishnan, Bellevue; John Guthrie; Scott Oyler, both of Seattle, all of Wash. Assignee: ShopNow.com Inc., Seattle, Wash. Appl. No.: 08/895,221 Filed: Jul. 15, 1997
OTHER PUBLICATIONS T. Berners-Lee et al., "Hypertext Transfer Protocol--HTTP 1.0," Request for Comments (RFC) 1945, MIT/LCS, May, 1996. T. Berners-Lee et al., "Uniform Resource Locators (URL)," RFC 1738, CERN, Xerox PARC, Univ. of Minn., D e c , 1994. (List continued on next page.) Primary Examiner---James P. Trammell Assistant Examiner--Nicholas David Rosen Attorney, Agent, or Firm--Perkins Coie LLP [57] ABSTRACT
[75]
[73] [21] [22]
Related U.S. Application Data [63] [60] [51] [52] [58] Continuation-in-part of application No. 08/792,719, Jan. 29, 1997 Provisional application No. 60/049,844, Jun. 17, 1997. Int. Cl. 7 G06F 17/60 U.S. Cl 705/59; 705/51; 705/26 Field of Search 705/1, 18, 2 1 , 705/26, 5 1 , 59; 380/3, 4, 23, 24, 25, 277 References Cited U.S. PATENT DOCUMENTS 5,005,122 5,337,357 5,390,297 5,530,752 5,553,143 5,592,549 5,708,709 5,710,887 4/1991 8/1994 2/1995 6/1996 9/1996 1/1997 1/1998 1/1998 Griffin et al. .. Chou et al Barber et al. .. Rubin Ross et al Nagel et al. ... Rose Chelliah et al. 709/203 .... 380/4 364/280 .... 380/4 .. 380/25 .... 380/4 .... 380/4 .. 705/26
[56]
(List continued on next page.) FOREIGN PATENT DOCUMENTS 0 667 572 Al 0 704 785 A2 WO 97/14087 0 778 512 A2 0 795 809 A2 8/1995 4/1996 4/1997 6/1997 9/1997 European European European European European Pat. Off Pat. Off Pat. Off. . Pat. Off Pat. Off G06F 9/445 G06F 1/00 G06F 1/00 G06F 1/00
A method and system for facilitating digital commerce using a secure digital commerce system is provided. The secure digital commerce system is arranged according to a client/ server architecture and includes a modularized DCS client and DCS server. The DCS client and the DCS server are incorporated into an online purchasing system, such as a virtual store, to perform the purchase and online delivery of electronic content. The DCS client includes a set of com ponents which include a secured copy of the merchandise and various components needed to license and purchase the merchandise and to unsecure and process (e.g., execute) the licensed merchandise. The DCS client communicates with the DCS server to download the components onto a cus tomer's computer system and to license and purchase a requested item of merchandise. The DCS server, which includes a content supplier server, a licensing and purchas ing broker, and a payment processing function, supplies merchandise-specific components and licenses the requested item of merchandise by generating an electronic certificate. The electronic certificate contains license parameters that are specific to the requested merchandise and an indicated purchasing option. Once a valid electronic license certificate for the requested merchandise is received by the DCS client, the merchandise is made available to the customer for use in accordance with the licensing parameters contained in the electronic license certificate. 16 Claims, 21 Drawing Sheets
DCS Client
m
DCS Server
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U.S. PATENT DOCUMENTS 5,724,424 3/1998 Gifford 5,757,908 5/1998 Cooper et al 5.758.068 5/1998 Brandt et al 5.758.069 5/1998 Olsen 5,778,173 7/1998 Apte 5,794,259 8/1998 Kikinis 5,805,802 9/1998 Marx 5.845.070 12/1998 Ikudome 5,895,454 4/1999 Harrington 5,897,622 4/1999 Blinn et al 5,898,777 4/1999 Tycksen, Jr. et al 5,909,492 6/1999 Payne et al 5,918,213 6/1999 Bernard et al 380/24 380/4 713/200 713/201 380/25 707/507 380/4 380/25 705/26 705/26 380/4 380/24 705/26
5,940,807
8/1999 Purcell OTHER PUBLICATIONS
705/26
T. Berners-Lee and D. Connolly, "Hypertext Markup Language-2.0," RFC 1866, MIT/W3C, Nov., 1995. J. O'Donnell et al., "Special Edition Using Microsoft Inter net Explorer 3 , " QUE Corp., Table of Contents, 1996. Schneier, Bruce, "Applied Cryptography," John Wiley & Sons, Inc., Table of Contents, 1994. Digital's EDI Services, Jul. 26, 1997. Patterson, Wayne, "Mathematical Cryptology for Computer Scientists and Mathematicians," Rowman & Littlefield, 1987. Table of Contents.
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Licensing and Purchasing Processing Overview
I
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601
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6,073,124
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1201
Yes
Obtain credit card or P.O. information
1202
(and verify customer's purchase desires)
1203 N o
Obtain payment authorization from payment processor
1204
Charge customer and credit supplier
I
1206
Yes
Inform licensing code of payment authorization
1205
1207
Lookup password generation data in PASSGEN database
1208
Generate ELC based upon password info
Yes
1210
Send ELC back to licensing code
Return
Fig. 12
Case 1:08-cv-00127-GMS
Document 10-8
Filed 05/09/2008
Page 16 of 38
U.S. Patent
Jun. 6, 2000
Sheet 13 of 21
6,073,124
Fig. 13
Case 1:08-cv-00127-GMS
Document 10-8
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U.S. Patent
Jun. 6, 2000
Sheet 14 of 21
6,073,124
Case 1:08-cv-00127-GMS
Document 10-8
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Page 18 of 38
U.S. Patent
jun.6,2000
sheet 15 of 21
6,073,124
z
Case 1:08-cv-00127-GMS
Document 10-8
Filed 05/09/2008
Page 19 of 38
U.S. Patent
jun.6,2000
sheet 16 of 21
6,073,124
ft
Case 1:08-cv-00127-GMS
Document 10-8
Filed 05/09/2008
Page 20 of 38
U.S. Patent
jun.6,2000
sheet 17 of 21
6,073,124
l/Vd
;!^
Case 1:08-cv-00127-GMS
Document 10-8
Filed 05/09/2008
Page 21 of 38
U.S. Patent
Jun. 6, 2000
Sheet 18 of 21
6,073,124
vi'cnj:? !n;s?5 Million
. - J " ·.'. . i = . . f i . . j . . :::.. .·
!
Case 1:08-cv-00127-GMS
Document 10-8
Filed 05/09/2008
Page 22 of 38
1901
session-specific symmetric key encrypted using Broker's public key Client Component all further messages encrypted with symmetric key of client 1 Licensing and Purchasing all further messages encrypted with symmetric key of client 2 Broker (Server)
1903
Obtains client specific symmetric key using private key of public/private pair
session-specific symmetric key encrypted using Broker's public key
Client Component
Fig. 19
Case 1:08-cv-00127-GMS
Document 10-8
Filed 05/09/2008
Page 23 of 38
a
2002 2001
Message digest Symmetric key encrypted w / public key Message content encrypted with symmetric key
3
-2003 -2004
= o o o
-2005
!Z5
sr
Encrypted Message Protocol
o o
Fig. 20
as
O
4-
Case 1:08-cv-00127-GMS
Document 10-8
Filed 05/09/2008
Page 24 of 38
U.S. Patent
Jun. 6, 2000
Sheet 21 of 21
6,073,124
Licensing and Purchasing Broker
Select each item starting with first item
-2101
2102
more items? \ No done
Determine whether item ESO or non-ESO item
2103
2105 2106
Determine distributor into from non-ESO table Execute ace. to steps of Figure 12
}
-2107 2109
Get pre-authorization for payment
2108
Yes Send purchase order to distributor
Return results of authorization attempt
-2110
Fig. 21
Case 1:08-cv-00127-GMS
Document 10-8 6,073: 124
Filed 05/09/2008
Page 25 of 38
1
METHOD A N D SYSTEM FOR SECURELY INCORPORATING ELECTRONIC INFORMATION INTO AN ONLINE PURCHASING APPLICATION
2
mate end user must provide the proper licensing information to enable the decryption to operate. A security hole exists, however, in that, while the wrapping program is in the process of decrypting the original application executable 5 file, temporary files are created to hold the decrypted pro gram code. Once the entire original application program has CROSS-REFERENCE TO RELATED been decrypted and stored in the temporary file, a "software APPLICATIONS pirate" can then make multiple copies of the original unen This application is a continuation-in-part of a U.S. Pro crypted application program in the temporary file and can visional Application No. 60/049,844, entitled "A Method distribute them illegally. and System of Securely Incorporating Digital Information Further, use of the wrapping technique to incorporate into an Electronic Store," filed on Jun. 17, 1997, which is licensing provides only limited additional security to a hereby incorporated by reference in its entirety. This appli vendor who implements what is known as a "try and buy" cation is also a continuation-in-part of U.S. patent applica licensing model. A try and buy licensing model typically tion Ser. No. 08/792,719, entitled "Method and System for distributes an application program with either limited func Injecting New Code Into Existing Application Code," filed tionality or for a limited time of use to enable a potential on Jan. 29, 1997, and which is hereby incorporated by customer to explore the application. Functionality may be reference in its entirety. limited, for example, by disabling a set of features. Once the TECHNICAL FIELD
20
The present invention relates to facilitating the purchase of electronic information using digital commerce and, in particular, to providing a component-based architecture that facilitates online licensing and purchase of digital content and software. BACKGROUND OF THE INVENTION Today's computer networking environments, such as the Internet, offer an unprecedented medium for facilitating the purchase of software and digital content online. Electronic software distribution (ESD) provides an online alternative (using computers) for a customer to purchase software and other types of digital content from publishers, resellers, and distributors without the physical distribution of a shrinkwrapped product. This online process is referred to as digital commerce. The customer purchases and downloads the software or other digital content directly from the network. In the context of this specification, software is generally a computer program, which is self-executing, whereas digital content that is not software is data that serves as input to another computer program. For example, audio content is digital content (an audio script) that is played and heard by executing an audio player (a computer program) to process the audio script. This act of processing is referred to as "executing" the digital content. For the purposes of this specification, self-executing content and other digital content, as well as any other type of electronic information that can be licensed or purchased, including combinations of content and a player for that content, will be referred to generically as electronic information, electronic data, or electronic content.
potential customer is satisfied, the customer can pay for and license the application program for more permanent use. If an application program is distributed using the wrapping technique to potential customers for the purpose of try and buy licensing, then, when the application program is decrypted and stored in a temporary file, a software pirate can determine how to enable the disabled features or how to remove the license expiration data. These security problems can result in the distribution of illegal copies, which are hard to detect and monitor in a global network environment.
A second technique for incorporating licensing code into 30 an existing application program directly inserts the licensing code into the executable file. Using the direct insertion method, an application developer determines where in the executable file the licensing code should be placed and inserts the new code into the executable. After inserting the 35 licensing code into the existing executable file, the applica tion developer adjusts addresses that reference any relocat able code or data that follows the inserted code to account for the newly added code. However, it is very difficult for an application developer to determine where to insert the 40 licensing code and to then test the entire application to ensure it wo
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