"REBUTTAL OF IVIEWIT TO THE NEW YORK STATE BAR OF
RESPONSE OF KENNETH RUBENSTEIN AUTHORED BY STEVEN KRANE"
P. Stephen Lamont
Chief Executive Officer
July 2, 2003
Re: Rebuttal of Kenneth Rubenstein, Esq. Response
to Complaint of Iviewit Holdings, Inc., Docket 2003.0531
Dear Mr. Cahill:
By way of introduction, I am Chief Executive Officer (Acting) of Iviewit Holdings, Inc.
and its subsidiaries (collectively, “Company”) with a background of which the Company
invites you to view at http://www.iviewit.com/management.htm , and I write to rebutt all
those material feints, denials, and, therefore, inconsistencies in the response of Kenneth
Rubenstein, Esq. (“Respondent”) to the Company’s New York Bar Complaint of
February 26 (“Complaint”).
Moreover, the facts of the Complaint find Respondent so uncloaked that he resorts to
disingenuously traversing from tall tales of retaliation to some irrelevant litigation, to
stories of a “failed dotcom company looking for someone to blame,” and even to the
personal attacks on the founder and principal inventor of the Company, whose passion for
his inventions confounds the mind of Respondent whose personal, financial, and other
ambitions rise above all, to the detriment of his clients.
Furthermore, Respondent continues this transparent discourse and all the while maintaining “The only thing I did for Iviewit is I referred them to another patent lawyer,”1 which the Company shall incite in the minds of First Judicial Department Departmental Disciplinary Committee that such a statement by Respondent could not be farther from the truth, as evidenced by Section I to Section XII, infra.
Prior to Section I to Section XII, infra, however, the first feint we need to address, and as
Respondent has chosen to apprise you, is that the Company and Respondent’s employer,
Proskauer Rose LLP (“Proskauer”), are parties to that certain litigation titled Proskauer
Rose LLP v. Iviewit.com, Inc. et. al., Case No. CA 01-04671 AB (Circuit Court of the
15th Judicial Circuit in and for Palm Beach County, Florida filed May 2, 2001)
(“Litigation”) that, as Respondent is aware, yet prefaces and attributes the Complaint to
said Litigation, bears not one iota of relevance to the specific allegations contained in the
Company’s Complaint.
Second, another important feint to correct, and wherein Respondent hopes that First
Judicial Department Departmental Disciplinary Committee fails to see the forest from the trees, is that the Company is not now nor has ever been a so called “dotcom” company, but rather is a designer and developer of video scaling and imaging technologies where, in combination and among other things, said technologies have the capability of “panning and zooming” on any image or any image within a video without degradation to the quality of that image (where degradation is termed “pixelation” to those skilled in the art).
Additionally, the Company technologies are targeted to device original equipment
manufacturers (“OEMs”) who, when individually, or in combination with other third
party hardware, firmware, and/or software, shall include them in OEM products such as,
but not limited to, cable set top boxes, satellite set top boxes, analog-to-digital converter
boxes, next generation DVD players, digital cameras, personal video recorders, and
personal computers; alternatively the Company has the option of exclusively contributing
said essential technologies to the multimedia patent pools known as MPEG 2 (digital
compression according the digital television standard), MPEG 4 (another compression
standard at a lower bit rate, and wherein interactive objects may be embedded), and DVD
(“digital video disc”) player-drive-codec and the discs themselves.
Third, and most disingenuously, Respondent attempts to point to the two and one half
percent (2.5%) interest in, an interest that Proskauer paid a nominal, par value price for,
and that was supposedly in return for adoption by the MPEG 2 patent pool of the
Company’s essential inventions, the Company’s direct, 92.03% owned, subsidiary,
Iviewit Technologies, Inc., that more specifically translates into a one and ninety nine one
hundredths of a percent (1.99%) fully diluted interest in lower valued Class B Non-
Voting shares of the Company’s direct subsidiary, as a motivation for Proskauer Rose to see
the Company succeed, yet fails to apprise First Judicial Department Departmental
Disciplinary Committee that in Respondent’s stewardship of the MPEG 2 patent pool,
which presently generates royalties in the nine figures, according to industry observers,
and that once digital television and the content there with assumes a penetration rate in
U.S. households akin to analog color television that said royalties from MPEG 2 shall rise
into the trillions of dollars, and much to the benefit of Respondent in his role as counsel,
by his admission2, and to the best of the Company’s knowledge, patent evaluator, and
Proskauer Rose, thereby dwarfing any potential realized gain from the nominally priced equity position in the Company’s direct subsidiary.
Clearly, by this analysis, the Company suggests that Respondent and his author, Steven C. Krane (“Author”), continue to apply their skills sets towards, physics and technology licensing, and legal ethics and dispute resolution, respectively, as their prospects of future careers as financial analysts have diminished as a result of this poorly attempted feint in the response of Respondent.
Fourth, and an equally poorly analyzed feint, is Respondent’s reference to a letter
presented in his deposition to that certain Litigation on November 20, 2002, wherein such
Litigation is wholly irrelevant to the Complaint, but is instructive for these purposes,
seemingly attempting to engage Respondent’s services future services, but by viewing an
electronic copy and right clicking the mouse of a IBM compatible personal computer and
selecting “properties” it is clear to Respondent that said letter’s date of creation was April
25, 2002, which was designed as a means for which to allow Respondent to “save his
soul” by reaffirming prior statements to potential licensees, and inapposite to
Respondent’s assumed intention (see Section IX Subsection A and Exhibit O – Statement
of CEO Lamont).
Lastly, Mr. Thomas Cahill, and as Respondent would have you believe, this is NOT the
Complaint of Eliot I. Bernstein, but of Iviewit Holdings, Inc. (a Delaware Corporation)
funded in total of approximately Six Million Dollars ($6,000,000) by prominent investors and entertainment professionals alike, including, but not limited to: Wayne Huizenga, Wayne Huizenga Jr., Alan Epstein, Esq. and Michele Mulrooney, Esq. of Armstrong
Hirsch Jackoway Tyerman & Wertheimer of Los Angeles. Cal., Kenneth Anderson, CPA,
Donald Kane (formerly Managing Director of Goldman Sachs), James Osterling, James
Armstrong, Ellen DeGenres, Alan Young, Allan Shapiro (Atlas Entertainment), Mitchell
Welsch (Vice President of UBS Paine Webber), and Jeffrey Friedstein (Vice President of
Goldman Sachs), Caroline P. Rogers, Esq. and many others.
Furthermore, the allegations in the Complaint stem from legal reviews by Irell and
Manella of Beverly Hills, Cal, Blakely Sokoloff Taylor & Zafman LLP of Los Angeles,
Cal., Caroline P. Rogers, Esq., the Chicago office of Greenberg Traurig LLP, Steven M.
Selz, Esq., and by executives of Warner Bros., a unit of AOL Time Warner, Inc., who in
the course of discussion both at the business level and personal level have advised that
looks can be deceiving when viewing the Company’s patent applications filed by patent
counsel under the supervision of Respondent, as the filings they viewed differ materially,
and, perhaps, fraudulently, the Company alleges, from the teachings and disclosures of
the Company’s inventors, Mr. Bernstein, Zakirul Shirajee, and Jude Rosario, and to the
detriment of the Company’s filings.
Now, with the above clarified, the Company points straight to the heart of the matters,
and despite Respondent’s statements in his deposition, wherein such Litigation is wholly
irrelevant to the Complaint, but is instructive for these purposes, and laughable
statements at that, the Company alleges, that include but are not limited to, “The only
thing I did for Iviewit is I referred them to another patent lawyer” and “I consider the deposition nothing but harassment, considering that I had nothing to do with the
company3,” and his denial of making any representations to any party with regard to the
Company’s technologies, we summarily state that from the benefit of the narrative and
attached exhibits below, the Company shall incite in the minds of First Judicial
Department Departmental Disciplinary Committee that Respondent:
(I) engaged in a series of dishonesties, appearances of untrustworthiness, conduct involving dishonesty, fraud, deceit, and misrepresentation with, and as the supervising attorney of, one
Raymond A. Joao who at the time of Respondent’s referral was in transition from places
unknown, but later figuratively drops out of the sky, while misrepresented as a member
of Proskauer Rose, and as of February 1999, becomes of counsel to Meltzer, Lippe Goldstein & Schlissel LLP (“MLGS”), Respondent’s former employer, in an attempt to bury the
Company’s inventions that are a competitive threat to the multimedia patent pools of
which Respondent holds the position of counsel, by self admission, and, to the best of the
Company’s knowledge, patent evaluator;
(II) engaged in a series of improprieties and deceptions with a one Christopher C. Wheeler, a Partner in the Boca Raton office of Proskauer Rose LLP (“Proskauer”) in a further attempt to deprive the Company of its technologies for the benefit of Respondent, Mr. Wheeler, and Proskauer by directing Mr. Christopher Wheeler to proliferate the Company’s technologies across a wide array of clients of Respondent, Mr. Wheeler, and Proskauer, according to Non-Disclosure Agreements (“NDAs”) never enforced by Mr. Wheeler, and a true list of clients conducting said unauthorized use is attached herein as Exhibit D;
(III) by virtue of his actions in (I) thereby perpetrating a fraud upon the United States Patent and Trademark Office (“USPTO”) in the supervision of Mr. Joao; and (IV) by virtue of (I) through (III) all to the detriment of the patent filings and present fortunes of the Company and its stakeholders alike.
Accordingly, on behalf of the Company, and for ease of reference I insert the major
allegations of the Complaint within the framework of The Lawyer’s Code of Professional
Responsibility of the New York State Bar Association,8 cross referencing Title 22 of New
York Codes, Rules and Regulations9 (“NYCRR”), and shall cite specific documentation
in exhibits attached hereto:
I. DR 1-102 [§1200.3] Misconduct.
The Company rebuts the feints, denials, and, therefore, inconsistencies in the response of
Respondent and re-alleges that Respondent had, during the period of representation of the
Company from 1998 to mid 2001, and irrespective of at which date, and in which form,
an engagement agreement was executed by and between Proskauer Rose and the Company: (I)
engaged in illegal conduct that adversely reflected on Respondent’s honesty, trustworthiness, and fitness as an attorney; (II) circumvented a Disciplinary Rule through actions of another, Mr. Joao; (III) engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation; and (IV) engaged in other conduct that adversely reflects on Respondent’s fitness as a lawyer.
Additionally, the Company, interalia, shall establish: (I) that Respondent, as the first
technologist to benefit from the inventions disclosures by the Company, was seen by the
inventors, executive management, investors, and potential licensees, as the individual
responsible for the oversight of the Company’s patent prosecution process;
(II) that Respondent used the referral of Mr. Raymond Joao as the cloaking device to bury the Company’s inventions that are competitive threats to the multimedia patent pools, thereby
maintaining Respondent’s personal financial gains, esteem, and clients from the
multimedia patent pools where Respondent, by admission, holds the position as counsel,
and also, to the Company’s best knowledge, patent evaluator;
(III) that Respondent opined as to the novelty of the Company’s inventions to investors and potential licensees at the same time he was directing Mr. Raymond Joao to bury the Company’s inventions in provisional patent filings that are a competitive threat to his patent pools and directing Mr. Christopher Wheeler to proliferate the Company’s technologies among clients of Respondent, Mr. Wheeler, and Proskauer without the enforcement of NDAs; and (IV) that Respondent engaged in other conduct that adversely reflects on Respondent’s fitness as a lawyer by his unconscionable speaking of falsehoods in a recent deposition in the Litigation, wherein such litigation is wholly irrelevant to the Complaint, but is instructive for these purposes, in which he denies, interalia:
(a) knowledge of the Company, however, has been named as overseer of the Company’s patent prosecution process and has been named as a member of the Company’s Advisory Board and has opined as to the novelty of the Company’s inventions to investors and potential licensees alike;
(b) denies knowledge of the Company’s main inventor, Mr. Bernstein, and other inventors, although he has spent many hours in disclosure sessions with the Company’s inventors; and
(c) has refused to describe his involvement with the organization MPEG LA, LCC that through
doctrines of respondeat superior and vicarious liability may be liable for the actions of
Respondent in other forums separate and apart from the Complaint, and where said
speaking of falsehoods in (a) through (c) has been steadfastly repeated in Respondent’s
response to the Complaint.
A. More specifically, Respondent, when first apprised of the Company’s technologies
states, through Mr. Wheeler, the opinion that they are “novel” and a statement relied
upon by early investors in the Company.
Moreover, through and in conjunction with Mr. Wheeler, Respondent becomes fully aware of the Company’s inventions whereby he receives invention processes, visits the proprietary pages of the Company’s web site, receives proprietary and confidential CD-ROM’s, is, factually, in constant phone contact with the Company’s inventors to learn the Company’s techniques, often times with Mr. Joao, and transmits examples of patents to Mr. Bernstein that point to the patent prosecution process he intends to oversee and undertake in conjunction with Mr. Joao, attached herein as Exhibit E.
Moreover, once knowledgeable about the Company’s inventions and in disclosure
teleconferences with Mr. Bernstein, the Company finds Respondent muttering to himself
“I missed that” and “we never thought of that” and “THIS CHANGES EVERYTHING.”
Furthermore, when Respondent’s muttering of “I missed that” and
“we never thought of that,” the Company alleges that Respondent is incensed at the
thought of a self taught video engineer, the likes of Mr. Bernstein and his fellow
inventors, formulating video and imaging processes that trump the preeminent patent
pools formed by Respondent, the patents of which were evaluated by Respondent, the
organization of which is counseled by Respondent, and the licensee and licensor list of
which Respondent counts as some of his clients as described at the URL at
http://www.proskauer.com/lawyers_at_proskauer/atty_data/4747 , where his client list includes some of those companies listed in the MPEG 2 patent pool, and highlighted as attached herein as Exhibit F.
Furthermore, Respondent is seen pointed to by former company executive management,
and named in multiple Company business plans authored by and reviewed and billed for
by Mr. Wheeler and delivered to Respondent’s for his review, and by potential license
partners as the “go to” individual regarding information and opinions on the Company’s
inventions examples of which are attached herein as Exhibit G.
B. More importantly, the Company points to his alleged mutterings that “THIS
CHANGES EVERYTHING,” wherein “EVERYTHING” allegedly refers to
Respondent’s formation, patent evaluation, and counseling to the organization MPEG
LA, LLC that coordinates the MPEG 2 and MPEG 4 patent pools of which the
Company’s inventions are a competitive threat.
Factually, the Company has knowledge that, as well as Respondent holding the position
of counsel by his own admission, Respondent holds the position of patent evaluator, and
wherein Respondent:
(a) may personally profit as said patent evaluator by, to the best of
the Company’s knowledge, receiving a fee of Eight Thousand Five Hundred Dollars
($8,500) per patent review10; (b) wherein Mr. Rubenstein counts as among his clients
certain licensors and licensees of said patent pools, and receives remuneration as the
billing Partner in representation of those clients by Respondent and Proskauer Rose; and (c)
wherein it is in the best personal, financial interest of Respondent to direct and engage
with Mr. Joao and Mr. Wheeler in said series of dishonesties, appearances of
untrustworthiness, conduct involving dishonesty, fraud, deceit, and misrepresentation to
remove the competitive threat of the Company’s inventions to said multimedia patent
pools, thereby securing his own personal gain and, perhaps, that of Proskauer.
Lastly, given this time line of events concerning Respondent, who is desirous of
maintaining Respondent’s personal financial gains, esteem, probable gains to
Respondent’s employer, Proskauer Rose, other gains from representing a soon to be trillion
dollar technology in MPEG 2, and clients from the multimedia patent pools and has
recruited Mr. Joao to assist, the Company alleges, in the burying the Company’s
inventions, it becomes strikingly unusual that Respondent and other former members and
associates of MLGS who at the time just transferred with Respondent to Proskauer, pass
on the patent prosecution work of the Company for their new employer, Proskauer Rose, and
10 First Judicial Department Departmental Disciplinary Committee should be apprised of the fact that: (i) said patent pool known as MPEG 2 contains, as of even date above, approximately Five Hundred and Eighty (580) essential patents, and contains some eighty to ninety percent (80% to 90%), according to industry observers, of the essential patents relevant to this pool; (ii) that said patent pool known as DVD contains, as of even date above, approximately Six Hundred and Seventy Five (675) essential patents, and the Company has no knowledge as to what percentage of the essential patents are contained relevant to this pool; and (iii) that said patent pool known as MPEG 4 presently contains approximately One Hundred (100) essential patents, and by the Company’s estimation contains approximately twenty five percent (25%) of the essential patents relevant to this pool; (iv) that by virtue of (i) and (ii) herein,
Respondent may have personally profited, absent any sharing with his former or present employers or in the operating budget of MPEG LA, LLC, in the amount of approximately Five Million Seven Hundred Thousand Dollars ($5,700,000); and (v) that by virtue of (iii) herein, Respondent may stand, from this activity alone, to personally profit in the future, absent any sharing with his present employer or the operating budget of MPEG LA, LLC, of approximately Two Million Five Hundred Thousand Dollars ($2,500,000), as well as profiting, the Company alleges, in other ways from the burying of the Company’s technologies, or resurrecting them with a cumulative present value of up to Seventeen Billion Dollars ($17,000,000,000) over twenty (20) year patent life.
Refer it back to their former law firm, MLGS, and an attorney, in one Mr. Joao, who
seemingly drops out of the sky and has no connection to the former attorneys, or do
Respondent and Mr. Raymond A. Joao have a former connection?
Moreover, and at this point in the time line, Respondent has already opined that the Company’s inventions are “novel” and essential to MPEG, as well as, in the Company’s opinion, a competitive threat to MPEG, which lends great support to the Company’s contenti ons that Respondent saw the personal financial gains, esteem, and current and prospective clients from the multimedia patent pools as needs to bury the Company’s inventions.
Finally, it is proximate to this series of events and circumstances that the Company realleges
that Respondent, desirous of maintaining Respondent’s personal, financial gains,
esteem, and clients from the multimedia patent pools and has recruited Mr. Joao to assist,
the Company alleges, in the burying the Company’s inventions, engaged, with and while
acting as the overseer of Mr. Joao, in conduct involving dishonesty, fraud, deceit, and
misrepresentation, wherein Respondent who has recruited Mr. Joao to assist, the
Company alleges, in the burying the Company’s inventions by missing critical elements
in the provisional patent applications, as attached herein as Exhibit H; Mr. Bernstein, the
other inventors, former President & COO Brian G. Utley , and representatives of the
“seed” investor, an affiliate of Huizenga Holdings, Inc. find:
(I) flaws in patent applications; (II) material differences between what was disclosed and contained in filed patent applications, as further described in Exhibit H by the letter of Mr. Utley; and (III) patent applications that do not include all the inventors.
C. Still further, the opinions of Respondent are instrumental in the “seed” funding of the
Company by an affiliate of Huizenga Holdings, Inc. (Wayne Huizenga of Blockbuster
fame) wherein Respondent interfaces with the Huizenga investment professionals, and
Mr. Wheeler reiterates Respondent’s opinions regarding the Company’s inventions.
Similarly, Mr. Wheeler relays Respondent’s opinions to Goldman Sachs Group, Inc.,
Gruntal & Co. (presently a unit of Raymond James Financial Inc.), and a whole host of
other investors and potential license partners now conducting the unauthorized use of the
Company technologies under NDAs not enforced by Respondent and Mr. Wheeler.
Lastly, to investors in the Company, it was the representation of Respondent and Mr.
Wheeler that Respondent’s patent pools and other interested clients of Respondent and
Mr. Wheeler would license the Company’s technologies; it was also represented that
Respondent made positive decisions on the essentiality of the Company’s patents pending
to potential licensees of the Company, in particular with respect to Warner Bros., and his
close association with a one Gregory B. Thagard, an individual who is the named, or one
of the named inventor(s) for approximately thirteen patents in the DVD patent pool and
was associated with Respondent in the Massachusetts Institute of Technology’s Media
Lab; instances of investor and licensee representations are more particularly described by
Exhibit I.
D. Lastly, through his many denials and, factual outright disavowing numerous items in
his deposition with regard to the Litigation, wherein such Litigation is wholly irrelevant
to the Complaint, but is instructive for these purposes,
Respondent outright disavows:
1. any knowledge whatsoever of the Company;
2. any knowledge whatsoever of Mr. Bernstein and the other true inventors;
3. any knowledge whatsoever of techniques known as pan and zoom technology;
4. and through his refusal to answer questions regarding the allegedly vicariously
liable MPEG LA, LLC16 amongst others;
5. his charge that the deposition was harassment in that he had nothing to do with
the Company;
6. his steadfast denial of technology known as scaled video;
7. his claim as to never opining on the Company’s technology;
8. his denial of ever having been involved in meetings concerning the Company
9. his denial of ever having any discussion with anyone at Proskauer concerning the
Company’s technology;
10. his admission of not keeping notes or records of his conversations to Mr.
Wheeler.
11. his acknowledgement of never having billed the Company, though his name
appears more than a dozen times, absent those billings that may have purposely
removed, in billings from Mr. Wheeler’s office.
12. his denial of making any representations to any party with regard to the
Company’s technologies;. his stunning reversal of his possible conversation with third parties regarding the Company’s technologies;25 and,his lack of knowledge as to why his name appears in an electronic mail message to a member of AOL Time Warner’s investment team, wherein that message states that Respondent opined on the Company’s technologies.
Accordingly, by subparagraphs 1 to 14 above, Respondent has engaged in other conduct
that adversely reflects on Respondent’s fitness as a lawyer, in light of said denials of
which the Company shall conclusively prove otherwise, infra.
II. DR 1-103 [§1200.4]
Disclosure of Information to Authorities.
A. The Company realleges and incorporates by this reference herein, as though fully set
forth, Section I Subsection A-D, inclusive. Moreover, the Company further re-alleges
that Respondent who is desirous of maintaining Respondent’s personal financial gains,
esteem, probable gains to Respondent’s employer, Proskauer, other gains from
representing a soon to be trillion dollar technology in MPEG 2, and clients from the
multimedia patent pools and has recruited Mr. Joao to assist, the Company alleges, in the
burying the Company’s inventions, possessed knowledge of a violation of DR 1-102
[§1200.3] that raises a substantial question as to the honesty of Mr. Joao, Mr. Joao’s
trustworthiness, Mr. Joao’s fitness as a lawyer, whom Respondent has recruited to assist,
the Company alleges, in the burying the Company’s invention, whereby Respondent
failed to report such knowledge to a tribunal or other authority empowered to investigate
or act upon such violation.
Still further, and by Exhibit I, the Company alleges Respondent’s awareness of violations
of Mr. Joao during a meeting at Respondent’s New York office with a one Steven
Filipeck, Esq. representing Huizenga Holdings, as well as others, pertaining to the
Company’s patent filings, and based on Mr. Filipeck’s review of Mr. Joao’s, under the
direction of Respondent, provisional work; Huizenga Holdings, Inc. was the initial
investor in the Company and this meeting materially impacts future Huizenga
investments which, as a result of the faulty provisional patent applications, were never
forthcoming.
Moreover, the Company further alleges that Respondent had knowledge of a violation of
DR 1-102 [§1200.3] that raises a substantial question as to the honesty of a one William
J. Dick, Esq. of Foley & Lardner, Milwaukee, Wis. and Mr. Utley, whereby Respondent
similarly failed to report such knowledge to a tribunal or other authority empowered to
investigate or act upon such violation.
Still further, the Company further alleges that Respondent had knowledge of a violation
of DR 1-102 [§1200.3] that raises a substantial question as to the honesty of Mr. Wheeler,
whereby Respondent similarly failed to report such knowledge to a tribunal or other
authority empowered to investigate or act upon such violation.
Lastly, the Company further alleges that Respondent may have had knowledge of factors
that may raise a substantial question as to the honesty of a one H. Hickman Powell III and
Stephen J. Warner, Managing Director and Co-Founder and Chairman, respectively, of
one Crossbow Ventures, Inc. of West Palm Beach, Fla., an affiliate of which was the
Company’s lead investor, whereby Respondent similarly failed to report such knowledge
to a tribunal or other authority empowered to investigate or act upon such violation.
Moreover, with respect to Messrs.
Powell and Warner and Crossbow, in late 1999, they were introduced to the Company by Mr. Wheeler, who had indicated to the Company that they were interested in an equity investment in the Company once they had conducted a thorough due diligence review of the Company’s intellectual property and provisional patent filings with a independent third party patent counsel, and in conjunction with Respondent and Mr. Joao.
Clearly, as Crossbow proceeded to invest a total of Four Million Dollars consisting of One Million Eight Hundred Thousand Dollars ($1,800,000) in convertible preferred stock (January 2000), One Million Two Hundred Thousand Dollars ($1,200,000) in unsecured notes (December 2000), and Eight Hundred Thousand Dollars ($800,000) in secured notes27 (May to September 2001) in the Company, said independent intellectual property review passed with flying colors, but what strikes the Company as unusual is that the independent intellectual property review by Crossbow in conjunction with Respondent and Mr. Joao, is in diametric opposition to the review of Foley & Lardner, and in diametric opposition to the review of the Company’s present patent prosecution counsel of Blakely, Sokoloff, Taylor & Zafman LLP of Los Angeles,
Cal., and lastly, is in diametric opposition to the review of the Company’s latest patent
review counsel, the Chicago office of Greenberg Traurig LLP.
Finally, following the time line of events, the termination of Mr. Utley for cause follows
with a breach of contract action (since dismissed) by, among others, Mr. Utley, followed
by Mr. Utley’s petition in an involuntary bankruptcy (since dismissed) against the
Company, followed by the Litigation (pending) by and between the Company and
Proskauer, wherein such litigation is wholly irrelevant to the Complaint, but is instructive
for these purposes, followed by the execution of Crossbow’s secured notes collateralized
by the Company’s intellectual property, followed by the halting of funding by Crossbow
Ventures that was far lower than the committed amount for that round, followed by a
demand letter for accrued but unpaid interest by Crossbow Ventures to the Company,
followed by a default notice and demand for all principal and accrued but unpaid interest
under the secured notes by Crossbow Ventures to the Company, and followed by a notice
of assignment of the intellectual property of the Company by Crossbow Ventures
(presently the subject of dispute), followed by a transfer of the secured notes contrary to
the rules of the Securities Act of 1933, to the best of the Company’s knowledge
(presently, the subject of a complaint to the United States Securities and Exchange
Commission), followed by Crossbow’s false statements to The Palm Beach Post that
“[Crossbow]sold one of its companies, iviewit.com,28” and the Company finds itself
asking:
Are not all these individuals and entities the referrals of Proskauer, Mr. Wheeler,
and Respondent, and introduced after Respondent has been apprised of the
Company inventions, and declaring them as ‘novel,’ and that ‘[Respondent]
missed that,’ and that ‘[Respondent] never thought of that,’ and, lastly
Respondent’s statement that ‘this changes everything,’ and whereby the efforts of
a preeminent multimedia patent counsel, such as Respondent or another, who is
desirous of maintaining Respondent’s personal financial gains, esteem, and clients
from the multimedia patent pools and has recruited Mr. Joao to assist, the
Company alleges, in the burying the Company’s inventions, may be of utilization
later after the above said series of events rendered the Company, its inventors, the
predominance of its shareholders, absent Mr. Utley and Crossbow and Proskauer,
neutralized, in the resurrection of the Company’s inventions for the benefit of
Respondent, Mr. Wheeler, Proskauer, Mr. Powell, Mr. Warner, Crossbow, and
Mr. Utley?
(Check Out Page 44 the Link Below for this Picture of Connections)
B. Similarly, the Company re-alleges that Respondent, who is desirous of maintaining
Respondent’s personal financial gains, esteem, and clients from the multimedia patent
pools and has recruited Mr. Joao to assist, the Company alleges, in the burying the
Company’s inventions possessed knowledge or evidence, not protected as a confidence or
secret, concerning Mr. Joao, without revealing such knowledge or evidence to the United
States Patent and Trademark Office (“USPTO”) and other authorities empowered to
investigate or act upon the irresponsible conduct of Mr. Joao.
C. Moreover, the Company further alleges that Respondent had knowledge of a violation
of DR 1-102 [§1200.3] that raises a substantial question as to the honesty of ones Steven
Becker and Douglas Boehm of Foley & Lardner and, whereby Respondent similarly
failed to report such knowledge to a tribunal or other authority empowered to investigate
or act upon such violation.
III. DR 1-104 [§1200.5]
Responsibilities of a Partner or Supervisory Lawyer and
Subordinate Lawyers.
A. The Company re-alleges and incorporates by this reference herein, as though fully set
forth, Section I Subsection A-D, and Section II Subsection A-C, inclusive. More
specifically, the Company re-alleges that Respondent, who is desirous of maintaining
Respondent’s personal financial gains, esteem, and clients from the multimedia patent
pools and has recruited Mr. Joao to assist, the Company alleges, in the burying the
Company’s inventions, is responsible for a violation of the Disciplinary Rules by Mr.
Joao whereby:
(I) Respondent ordered and directed the irresponsible misconduct of Mr. Joao in burying the Company’s technologies, and, with full knowledge of Mr. Joao’s specific misconduct, ratified said misconduct; (II) Respondent ordered and directed, in conjunction with Mr. Wheeler, the irresponsible misconduct of subsequent patent counsel Mr. Dick, a one Steven Becker, a one Douglas Boehm all of Foley & Lardner, and Mr. Utley in continuing to bury the Company’s technologies, and, with full knowledge of their specific misconduct, ratified said misconduct; and (III) Respondent had supervisory authority over these individuals and knew of such misconduct that Respondent, ordered, directed, and ratified, and in the exercise of reasonable management and supervisory authority where Respondent knowing of said misconduct failed to take remedial action at a time when the consequences of their misconduct could be or could have been avoided
or mitigated.
B. Lastly, and aside from the fact that Respondent ordered and directed the irresponsible
misconduct of Mr. Joao in burying the Company’s technologies, and, with full
knowledge of Mr. Joao’s specific misconduct, ratified said misconduct, Respondent was
negligible in the referral to Mr. Joao in that Mr. Joao presently has numerous patents
issued and patent applications pending since meeting the inventors, nearly eighty (80) in
total, and where these inventions concern those allegedly learned through his engagement
with the Company, the royalties, if measured along the lines of the MPEG 2 patent pool,
can represent upwards of, if not more than, Twelve Million Dollars ($12,000,000) per
annum; similarly,
Respondent was negligent in Proskauer’s referral of Foley & Lardner,
whereby the lead counsel to the Company, Mr. William J. Dick,was previously involved in alleged intellectual property malfeasances with Mr. Utley, and considering the particular patent applications wrongly written into Mr. Utley as the sole inventor, and sent to Mr. Utley’s home, and without Mr. Utley assigning said inventions to the Company, and where Foley & Lardner had full knowledge of Mr. Utley’s inability to invent said technologies, the
royalties flowing from these nearly misappropriated inventions might approach more than
One Billion Dollars ($1,000,000,000) annually.
IV. DR 1-107 [1200.5-c]
Contractual Relationships Between Lawyers and
Nonlegal Professionals
A. The Company re-alleges and incorporates by this reference herein, as though fully set
forth, Section I Subsection A-D, Section II Subsection A-C, and Section III Subsection
A, inclusive.
Moreover, the Company further re-alleges that Respondent’s practice of
law during his representation of the Company lacked the essential tradition of complete
independence and uncompromised loyalty to the Company as a result of Respondent’s
representation as counsel and, to the best of the Company’s knowledge, patent evaluator,
to the entity known as MPEG LA, LLC, or the licensor of those essential patents known
as MPEG 2 and MPEG 4, the DVD patent pool administered by DVD 6C Licensing
Agency, that the Company’s technologies provide for a competitive threat, as evidenced
by Exhibit J attached herein, and other clients, wherein Respondent refuses to answer
questions in his deposition with regard to the Litigation30, wherein such Litigation is
wholly irrelevant to the Complaint, but is instructive for these purposes, concerning
questions pertaining to MPEG LA, LLC, as, the Company alleges, Respondent is fully
aware that the misconduct of Mr. Joao as overseen by Respondent, would rise to the level
of MPEG LA, LLC through doctrines of respondeat superior and vicarious liability,
thereby impinging upon Respondent’s personal financial gains whereby Respondent,
who is desirous of maintaining Respondent’s personal financial gains, esteem, probable
gains to Respondent’s employer, Proskauer Rose, other gains from representing a soon to be
trillion dollar technology in MPEG 2, and clients from the multimedia patent pools and
has recruited Mr. Joao to assist, the Company alleges, in the burying the Company’s
inventions ..
B. Moreover, the Company re-alleges that Respondent’s representation of the Company
lacked the tradition of complete independence and uncompromised loyalty as outlined in
this Section, Subsection A, as a result of Respondent’s simultaneous representation of
MPEG LA, LLC as well as other clients possessing overlapping interests with respect to
the Company, the Company lacked the guarantee of independent professional judgment
and undivided loyalty uncompromised by conflicts of interest in its representation by
Respondent when viewing the Company’s technologies as competitive threats to those
technologies licensed by MPEG LA, LLC and Respondent’s personal financial gains as
its counsel, and to the best of the Company’s knowledge, patent evaluator.
Lastly, as a result of this Section Subsections A and B, the Company re-alleges that
Respondent failed: (I) in his responsibility to maintain his or own independent
professional judgment; (II) to maintain the confidences and secrets of the Company; and
(III) to otherwise comply with the legal and ethical principles governing lawyers in New
York State.
V. DR 4-101 [§1200.19]
Preservation of Confidences and Secrets of a Client.
A. The Company re-alleges and incorporates by this reference herein, as though fully set
forth, Section I Subsection A-D, Section II Subsection A-C, Section III Subsection A,
and Section IV Subsection A-C, inclusive.
Wherein, “confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the Company had requested be held inviolate and the disclosure of which would likely be detrimental to the Company, the Company further re-alleges that Respondent (I) used the confidences and trade secrets of the Company to the disadvantage of the Company; (II) revealed, by using for Respondent’s own gain, esteem, probable gains to Respondent’s employer, Proskauer, other gains from representing a soon to be trillion dollar technology in MPEG 2, and
clients from the multimedia patent pools and has recruited Mr. Joao to assist, the
Company alleges, in the burying the Company’s inventions, confidences and trade secrets
of the Company, to the disadvantage of the Company; and (III) Respondent failed to
exercise reasonable care to prevent his clients from disclosing and using the confidences
and trade secrets of the Company.
More specifically, the Company re-alleges that Respondent revealed confidences and
trade secrets of the Company to the disadvantage of the Company as evidenced by the
billings of Proskauer wherein Respondent is named numerous times and has participated
in numerous hours of billings by Proskauer, attached herein as Exhibit K.
Furthermore, in his response, Respondent points to the fact that he has not billed for one hour of work in representation of the Company, whereby by Exhibit K, the Company finds itself asking
“Does Respondent work for free?” and answers by replying “No, but only when
Respondent, who is desirous of maintaining Respondent’s personal financial gains,
esteem, probable gains to Respondent’s employer, Proskauer, other gains from
representing a soon to be trillion dollar technology in MPEG 2, and clients from the
multimedia patent pools and has recruited Mr. Joao to assist, the Company alleges, in the
burying the Company’s inventions, and perhaps the facts of the matter, cross-currently,
see Mr. Utley, Mr. Wheeler, and Crossbow preparing for burying the Company itself, as
a means to cloak his involvement in the burying of the Company’s inventions.”
Moreover, it should be similarly noted with respect to the billings of Proskauer that the
Company further alleges that Proskauer’s early bills bear eerie evidence of possible
tampering, and wherein Respondent’s name and patent discussion entries may have been
attempted to be removed in an effort to exculpate Respondent.
Furthermore, the Company re-alleges that Respondent revealed, by using for
Respondent’s own gain, confidences and trade secrets of the Company, to the
disadvantage of the Company according to the same analysis in this Section, Subsection A.
B. Lastly, the Company re-alleges that Respondent failed to exercise reasonable care to
prevent his clients from disclosing and using the confidences and trade secrets of the
Company as evidenced by the URL at http://trailers.warnerbros.com/web/category.jsp?id=action, whereby on the website of Warner Bros, a client of Respondent as evidenced by Mr. Wheeler’s second response32 to the Company’s Complaint against Mr. Wheeler, a viewer who selects an action trailer and choosing Windows Media Player at a connection speed of 300k and when observing the trailer and right clicking the viewer’s personal computer mouse and choosing the option “statistics” and then choosing the option ”advanced,” the quality of video seen at the specified bit rate and connection speed that deliver twenty
(24) to thirty (30) full screen frames per second (termed “full frame rates” to those skilled
in the art) is mathematically impossible to deliver other than by use of the Company’s
inventions, as corroborated by the letter of David Colter, former Vice President of
Advanced Technology of Warner Bros., and all attached herein as Exhibit L.
VI. DR 5-101 [§1200.20]
Conflicts of Interest - Lawyer’s Own Interests
A. The Company re-alleges and incorporates by this reference herein, as though fully set
forth, Section I Subsection A-D, Section II Subsection A-C, Section III Subsection A,
Section IV Subsection A-C, and Section V Subsection A-D, inclusive.
Moreover, the Company further re-alleges that Respondent, who is desirous of maintaining
Respondent’s personal financial gains, esteem, probable gains to Respondent’s employer,
Proskauer Rose, other gains from representing a soon to be trillion dollar technology in MPEG
2, and clients from the multimedia patent pools and has recruited Mr. Joao to assist, the
Company alleges, in the burying the Company’s inventions, and perhaps the facts of the
matter, cross-currently, see Mr. Utley, Mr. Wheeler, and Crossbow preparing for burying
the Company itself, continued his employment by MPEG LA, LLC, and whereby said
employment materially affected Respondent’s judgment to the detriment of the Company
as a result of Respondent’s own financial, business, property, and personal interests, and
whereby the Company gave no consent to the representation in light of the implications
of the Respondent’s interest.
Furthermore, by this violation of DR 5-101, it becomes more apparent when viewed in
terms of that neither Respondent nor Mr. Wheeler33 are cognizant of whether Proskauer
conducted a no conflict of interest verification. Still further, the Company further alleges
that Respondent, Mr. Wheeler, and Mr. Joao were in receipt of proprietary and
confidential Company information without the benefit of a retainer agreement34 or no
conflict of interest verification, and whereby a no conflict of interest verification was
conducted approximately twelve months after the first technology disclosures by the
Company to Mr. Wheeler, Respondent, and Mr. Joao, as described in Exhibit F, supra.
VII. DR 5-105 [§1200.24]
Conflict of Interest; Simultaneous Representation.
A. The Company re-alleges and incorporates by this reference herein, as though fully set
forth, Section I Subsection A-D, Section II Subsection A-C, Section III Subsection A,
Section IV Subsection A-C, Section V Subsection A-D, and Section VI Subsection A,
inclusive. Moreover, the Company further alleges that Respondent, who is desirous of
maintaining Respondent’s personal financial gains, esteem, probable gains to
Respondent’s employer, Proskauer, other gains from representing a soon to be trillion
dollar technology in MPEG 2, and clients from the multimedia patent pools and has
recruited Mr. Joao to assist, the Company alleges, in the burying the Company’s
inventions, and perhaps the facts of the matter, cross-currently, see Mr. Utley, Mr.
Wheeler, and Crossbow preparing for burying the Company itself, failed to decline the
continued proffered employment by MPEG LA, LLC and his other clients, and that as a
result of Respondent’s failure to decline said employment, Respondent’s exercise of
independent professional judgment on behalf of the Company was adversely affected by
Respondent’s continuation of said proffered employment by, including but not limited to,
MPEG LA, LLC, and that it was likely to involve Respondent in representing differing
interests.
B. Furthermore, the Company re-alleges that Respondent continued the said multiple
employment by both, including but not limited to, MPEG LA, LLC and the Company
when Respondent’s exercise of independent professional judgment on behalf of the
Company was adversely affected by the Respondent’s representation of, including but not
limited to, MPEG LA, LLC, and that it resulted in Respondent representing differing
interests with material conflicts across his client roster, Proskauer’s clients under NDA,
the multimedia patent pools in general, and MPEG 2 in particular, that has a potential to
generate royalties in the trillions of dollars at the time in which digital television is the
quintessential entertainment client in end users viewing areas.
Moreover, Respondent, in his deposition with regard to the Litigation, wherein such Litigation is wholly irrelevant to the Complaint, but is instructive for these purposes, states his inability to recall his financial package35 as well as his date of employment with Proskauer Rose, which, the Company alleges, reveals Respondent’s motives, when viewed in terms of his desire to maintain Respondent’s personal financial gains, esteem, probable gains to Respondent’s
employer, Proskauer Rose, other gains from representing a soon to be trillion dollar technology in MPEG 2, and clients from the multimedia patent pools and has recruited Mr. Joao to assist, the Company alleges, in the burying the Company’s inventions and perhaps the
facts of the matter, cross-currently, see Mr. Utley, Mr. Wheeler, and Crossbow preparing
for burying the Company itself, and as evidenced by Exhibit M attached herein.
Additionally, also presented in Exhibit M are: (I) a compact disc recording of a taped
conversation by and between Mr. Eliot Bernstein and inventor Shirajee that points to the
absolute knowledge by Respondent, Mr. Joao, and Mr. Wheeler as to the Company’s true
inventors; (II) the statement of former Chairman of the Company’s Board of Directors,
Simon Bernstein; and (III) the statements of other former employees, shareholders,
investors and clients all possessing knowledge of the alleged malfeasances and
misfeasances of Respondent, Mr. Joao, and Mr. Wheeler.
The Company re-alleges that Respondent’s employer, Proskauer, failed to maintain
records of Respondent’s outside interests with, including but not limited to, MPEG LA,
LLC, and similarly failed to implement a system by which the proposed engagement with
the Company was checked against Respondent’s employment by, including but not
limited to, MPEG LA, LLC, and whereby the case of representation of the Company was
a substantial factor in causing a violation of DR 5-105 by Respondent, who is desirous of
maintaining Respondent’s personal financial gains, esteem, probable gains to
Respondent’s employer, Proskauer, other gains from representing a soon to be trillion
dollar technology in MPEG 2, and clients from the multimedia patent pools and has
recruited Mr. Joao to assist, the Company alleges, in the burying the Company’s
inventions, and perhaps the facts of the matter, cross-currently, see Mr. Utley, Mr.
Wheeler, and Crossbow preparing for burying the Company itself.
VIII. DR 5-108 [§1200.27]
Conflict of Interest - Former Client.
The Company re-alleges and incorporates by this reference herein, as though fully set
forth, Section I Subsection A-D, Section II Subsection A-C, Section III Subsection A,
Section IV Subsection A-C, Section V Subsection A-D, and Section VI Subsection A,
and Section VII Subsection A-C, inclusive.
Moreover, the Company further re-alleges that Respondent, after the representation of the Company continued to represent, including but not limited to, MPEG LA, LLC in the same and substantially related matter in which Respondent’s and Proskauer’s interests are materially adverse to the interests of the Company, as Respondent, who is desirous of maintaining Respondent’s personal financial gains, esteem, probable gains to Respondent’s employer, Proskauer Rose, other gains from representing a soon to be trillion dollar technology in MPEG 2, and clients from the multimedia patent pools and has recruited Mr. Joao to assist, the Company alleges, in the burying the Company’s inventions, and perhaps the facts of the matter, cross-currently, see Mr. Utley, Mr. Wheeler, and Crossbow preparing for burying the Company itself
A. The Company re-alleges that Respondent used the confidences and trade secrets of
the Company to the detriment of the Company.
B. The Company re-alleges that without the consent of the Company, Respondent
knowingly continued to represent, including but not limited to, MPEG LA, LLC in the
same and substantially related matters in which Respondent had previously represented
the Company and: (I) Respondent’s interests and the interests of Proskauer are materially
adverse to the Company; and (II) Respondent had acquired information protected by
section DR 4-101 [1200.19](B) that is material to the matter.
IX. DR 7-101 [§1200.32]
Representing a Client Zealously.
A. The Company re-alleges and incorporates by this reference herein, as though fully set
forth, Section I Subsection A-D, Section II Subsection A-C, Section III Subsection A,
Section IV Subsection A-C, Section V Subsection A-D, and Section VI Subsection A,
Section VII Subsection A-C, and Section VIII Subsection A-C, inclusive. Furthermore,
Company re-alleges that Respondent intentionally failed to seek the lawful objectives of
the Company through reasonably available means permitted by law and the Disciplinary
Rules.
More specifically, the representation by Respondent, who is desirous of maintaining
Respondent’s personal financial gains, esteem, probable gains to Respondent’s employer,
Proskauer, other gains from representing a soon to be trillion dollar technology in MPEG
2, and clients from the multimedia patent pools and has recruited Mr. Joao to assist, the
Company alleges, in the burying the Company’s inventions, and perhaps the facts of the
matter, cross-currently, see Mr. Utley, Mr. Wheeler, and Crossbow preparing for burying
the Company itself, in his role as overseer of the Company’s patent prosecution process,
is aware that his direction of Mr. Joao has the stated goal of filing the provisional patent
application for the Company’s imaging invention by January 1999, and a goal not
fulfilled until more than three months later, and wherein all disclosures had occurred
while the Respondent and Mr. Wheeler, under the umbrella of Proskauer, had neither
executed a retainer agreement with the Company nor conducted conflict checks, but only
approximately twelve months after the Company’s technology disclosures, all conduct of
which reflects negatively on Respondent, Mr. Wheeler, and Proskauer.
Moreover, Respondent erroneously claims that foreigners could not be listed as inventors
in diametric opposition to Section 115 of the Patent Act38, a true copy of which is
attached herein as Exhibit N, which, according to the Company’s best understanding may
invalidate any patents at issuance; thereafter, Mr. Wheeler expedites, and bills for such,
the immigration status of Mr. Shirajee and Mr. Rosario so that they may be listed as
inventors; still at this point, Mr. Joao, under the direction of Respondent, fails to state
proper inventors.
Still further, the Company required Respondent’s participation, and wherein Respondent
willfully failed to participate, by teleconference during its first major technology
disclosure with Real 3D, Inc. (then a consortium of Intel Corp., Silicon Graphics, Inc.,
and Lockheed Martin Corp), during which time it was found that Mr. Joao, under the
direction of Respondent, protected only the imaging invention, and wherein the Company
cannot make full disclosures of the video invention and the combination of imaging and
scaled video where, Mr. Wheeler, after the meeting, calls Respondent who opines that no
damage may result from the late filings as the protection of the inventions rest on the date
of invention and not the filing dates; unfortunately, Respondent was remiss in failing to
state that the international patent system relies on a “first to file” basis, rather than his
stated invention date instructions, and thus potentially exposes the Company’s
international patent portfolio based on the late filings of imaging, video scaling, and the
combination of imaging and scaled video.
B. Still further, the Company references the removal of Mr. Raymond Joao as the Company patent prosecutor, under the direction of Respondent, and his replacement by Foley & Lardner,
specifically referred by Mr. Wheeler and Mr. Utley, and still under the direction of
Respondent. The Company further alleges that Respondent is negligent in the oversight
of Foley & Lardner’s work as they fail to: (a) correct the mistakes of Mr. Joao, pursue
non-provisional patent prosecution for the Company that results in flawed work of their
own, still under the direction of Respondent, and when corrected by the Company, still
file non-provisional patent applications filled with flaws; (b) file non-provisional patent
applications with missing and changed inventors; (c) write non-provisional patent
applications into the name of the Company’s President & Chief Operating Officer, a one
Brian G. Utley, with no assignment to the Company, and an individual who had a close
association with the Foley & Lardner lead, William J. Dick, with full knowledge that Brian Utley
could not and was not inventor of the subject matter of those non-provisional
applications; and (d) failed to disclose the former intellectual property malfeasances of
Mr. Utley and Mr. Dick at Mr. Utley’s former employer, Diamond Turf Lawnmower in
Florida.
B. Moreover, the Company re-alleges that Respondent tortuously interfered with a
business contract by and between the Company and Warner Bros, wherein a one Wayne
M. Smith, Vice President and Senior Litigation and Patent Counsel called upon
Respondent to re-opine, as he had many times before, and Respondent refuses based
upon his stated conflicts of interest when such conflicts of interest were not stated during
the times of the Company’s technology disclosures to Respondent nor in Respondent’s
previous discussions with Warner Bros., and in light of his proffered employment by,
including but not limited to, MPEG LA, LLC.
Most specifically, the Company submits the statement of P. Stephen Lamont, Chief Executive Officer (“CEO Lamont”) that describes his December 2001 to April 2002 discussions and correspondences with Respondent attached herein as Exhibit O, prefaced by letters of David Colter, former Vice President for Advanced Technology of Warner Bros. that references Respondent’s validation of the Company’s inventions.
C. Lastly, the Company re-alleges the misfeasance of Respondent in light of his failure
to file a copyright with the Unites States Library of Congress pertaining to the protection
of the source code algorithmically enabling the Company’s inventions, the drafting of
which was billed for by Mr. Wheeler’s office of Proskauer, although said office, to the
best of the Company’s knowledge, employed no intellectual property attorneys.
X. DR 7-102 [§1200.33]
Representing a Client Within the Bounds of the Law.
A. The Company re-alleges and incorporates by this reference herein, as though fully set
forth, Section I Subsection A-D, Section II Subsection A-C, Section III Subsection A,
Section IV Subsection A-C, Section V Subsection A-D, and Section VI Subsection A,
Section VII Subsection A-C, Section VIII Subsection A-C, and Section IX Subsection AC,
inclusive. Moreover, the Company further re-alleges that Respondent concealed and
knowingly: (I) failed to disclose that which Respondent was required by law to disclose;
(II) spoke falsehoods and presented false documents; (III) made false statement of law
and fact; (IV) participated, under the supervision of and with Mr. Joao, who was recruited
by Respondent to assist, the Company alleges, in the burying the Company’s invention,
in the creation or preservation of documentation when Respondent knew that said
documentation is false; (V) under the supervision of and with Mr. Raymond Joao had perpetrated a fraud upon a tribunal, the USPTO, without revealing the fraud to such tribunal; and (V) engaged in illegal conduct and conduct contrary to Disciplinary Rules.
B. More specifically, the Company re-alleges that Respondent, who is desirous of
maintaining Respondent’s personal financial gains, esteem, probable gains to
Respondent’s employer, Proskauer, other gains from representing a soon to be trillion
dollar technology in MPEG 2, and clients from the multimedia patent pools and has
recruited Mr. Joao to assist, the Company alleges, in the burying the Company’s
inventions, and perhaps the facts of the matter, cross-currently, see Mr. Brian Utley, Mr.
Wheeler, and Crossbow preparing for burying the Company itself, knowingly failed to
disclose that which Respondent was required by law to disclose, in the allegedly burying
of the Company’s inventions, and perhaps the facts of the matter, cross-currently, see Mr.
Utley, Mr. Wheeler, and Crossbow preparing for burying the Company itself.
Moreover, the Company re-alleges that Respondent knowingly spoke falsehoods and
presented false documents, in investor and potential licensee discussions while
representing the Company as the ultimate responsible party in the Company’s patent
prosecution process, and especially in those certain discussions with the Company’s
“seed” investor, an affiliate of Huizenga Holdings, Inc., as further described in Section II
Subsection A, and Warner Bros. as further described in Section IX Subsection C, as well
as other clients.
C. Furthermore, the Company further re-alleges that Respondent made false statement of
law and fact, and as to fact in his discussions with investors and potential license
partners, particularly, including but not limited to, an affiliate of Huizenga Holdings, Inc.,
Warner Bros., Crossbow Ventures, and through others, SONY Corporation, and as
particularly described herein.
D. Additionally, the Company further alleges that Respondent participated, under the
supervision of and with Mr. Joao, who was recruited by Respondent to assist, the
Company alleges, in the burying the Company’s invention, in the creation or preservation
of documentation when Respondent knew that said documentation is false, as particularly
described in Exhibit B attached herein, the complaint, response, and the Company’s
rebuttal of Raymond A. Joao, Esq.
E. Lastly, the Company further alleges that Respondent according to the supervision of
and with Mr. Joao and attorneys of Foley & Lardner had perpetrated a fraud upon a
tribunal, the USPTO, via principles of respondeat superior and vicarious liability,
without revealing the fraud to such tribunal. Finally, as evidenced by this Section,
subsection B-E, inclusive, the Company re-alleges that Respondent engaged in illegal
conduct and conduct contrary to Disciplinary Rules XI. DR 9-102 [§1200.46] Preserving Identity of Funds and Property of Others; Fiduciary Responsibility; Commingling and Misappropriation of Client Funds or Property; Maintenance of Bank Accounts; Record Keeping; Examination of Records.
A. The Company re-alleges and incorporates by this reference herein, as though fully set
forth, Section I Subsection A-D, Section II Subsection A-C, Section III Subsection A,
Section IV Subsection A-C, Section V Subsection A-D, and Section VI Subsection A,
Section VII Subsection A-C, Section VIII Subsection A-C, and Section IX Subsection AC,
and Section X Subsection A-E, inclusive.
Furthermore, the Company alleges that Respondent failed to maintain required bookkeeping records for the seven (7) year period including, but not limited to copies of all bills that Respondent, who is desirous of maintaining Respondent’s personal financial gains, esteem, probable gains to Respondent’s employer, Proskauer Rose, other gains from representing a soon to be trillion dollar technology in MPEG 2, and clients from the multimedia patent pools and has
recruited Mr. Raymond Joao to assist, the Company alleges, in the burying the Company’s
inventions, should have rendered to the Company.
Moreover, in representation of the Company, Respondent acknowledges39 that he neither kept no notes, electronic mail messages, nor other records in his deposition with regard to the Litigation, wherein such Litigation is wholly irrelevant to the Complaint, but is instructive for these purposes, and said acknowledgement is attached herein as Exhibit P.
Moreover, and upon request by subsequent patent counsel, Foley & Lardner, a copy of
which is attached herein as Exhibit P, Respondent failed, under principles of respondeat
superior and vicarious liability, to require his charge, Mr. Joao to remit all documents
required under Exhibit P, and not least of all, documentation Mr. Joao, by admission,
destroyed, XII. Lastly, the negligent actions of Respondent resulted in and were the
proximate cause of loss to the Company.
A. The history of the Company, literally back to the first day of discovery of the
inventions, sees the allegations described in Defendant’s Motion for Leave to Amend to
Assert Counterclaim for Damages, Proskauer Rose LLP v. Iviewit.com, Inc. et. al., Case
No. CA 01-04671 AB (Circuit Court of the 15th Judicial Circuit in and for Palm Beach
County, Florida filed May 2, 2001) attached herein as Exhibit Q, a motion of which stems
from that certain Litigation that is wholly irrelevant to this Complaint, but is instructive
for the alleged violations I to XI above, wherein after review by the Company’s
subsequent patents counsels, the work product of Mr. Raymond Joao, under the supervision of Respondent, under the principles of respondeat superior and vicarious liability, who is
desirous of maintaining Respondent’s personal financial gains, esteem, probable gains to
Respondent’s employer, Proskauer Rose, other gains from representing a soon to be trillion
dollar technology in MPEG 2, and clients from the multimedia patent pools and has
recruited Mr. Raymond A. Joao to assist, the Company alleges, in the burying the Company’s
inventions, and perhaps the facts of the matter, cross-currently,
see Mr. Utley, Mr. Christopher Wheeler, and Crossbow preparing for burying the Company itself, result in the causing of damages to the Company over a twenty year patent life, as described in the Company’s projections across all distribution channels as evidenced by Exhibit R attached herein projected at a present value of approximately Ten Billion Dollars ($10,000,000,000) of potential damages, and much in the way Respondent, the Company alleges, envisioned.
The Company further alleges that, once Respondent and Mr. Joao saw the Company’s
inventions, Respondent sees the personal, financial need to bury these inventions, and
recruits Mr. Raymond Anthony Joao as the executioner of the Company’s inventions.
Moreover, the Company's inventions, while certainly not end to end solutions are literally the backbone technology of, including but not limited to, MPEG and DVD, pose formidable
competitive threats to those pools as graphically portrayed by Exhibit S, and certainly
pose a threat, by this one example, to Respondent’s fee of $8,500 per essential patent;
Respondent counts among his clients both licensors (Alcatel) and licensees (Alcatel, CCube
Microsystems, Divicom a unit of Harmonic) of MPEG evidenced by comparing his
biography at http://www.proskauer.com/lawyers_at_proskauer/atty_data/4747 with MPEG LA licensors and licensees at http://www.mpegla.com/.
Moreover, in his response, Respondent relies upon the testimony of certain individuals,
including, but not limited to Mr. Wheeler, Mr. Utley, Mr. Raymond T. Hersh, the former
Chief Financial Officer of the Company, and Gerald Lewin, a principal in the accounting
firm of Goldstein Lewin & Company of Boca Raton, Fla. and the Company’s former
outside C.P.A. firm.
Furthermore, as to Mr. Wheeler, and wherein he states in his deposition that stems from
that certain Litigation that is wholly irrelevant to this Complaint, but is instructive for
these purposes, that Respondent did not perform any patent work or patent oversight
work, 40 then in another instance Mr. Wheeler states that he contacts Respondent to
determine what Respondent needs to determine the patentability of the Company’s
inventions,41 as evidenced by Exhibit T attached herein, and referencing Mr. Wheeler’s
letter to a one Richard Rossman also contained in Exhibit T.
Additionally, in his Florida Bar response, Mr. Wheeler, while he admits of limited instances of consulting Respondent, is found consulting Respondent who fervently has claimed that “The only
thing I did for Iviewit is I referred them to another patent lawyer 42.”
Thus, First Judicial Department Departmental Disciplinary Committee should note that
the reliance in any of Respondent's filings, and/or proceedings in this matter, on the
testimony of Mr. Christopher Wheeler that would seemingly exculpate Respondent, by the above declaration it is clear that the testimony of Mr. Wheeler is worthless.
Additionally, as to Mr. Brian Utley, and wherein he states in his deposition, interalia, that
stems from that certain Litigation that is wholly irrelevant to this Complaint, but is
instructive for these purposes, at one instance that he had no discussions with Respondent
pertaining to the Company’s intellectual property43, and then in another instance states
that he had conversations with Respondent to apprise him of the status of the Company’s
patent prosecution process relative to a proposed contract with Warner Bros.,44 as
evidenced by Exhibit U attached herein.
Thus, First Judicial Department Departmental Disciplinary Committee should note that
the reliance in any of Respondent's filings, and/or proceedings in this matter, on the
testimony of Mr. Brian Utley that would seemingly exculpate Respondent, by the above
inconsistencies, it is clear that the testimony of Mr. Utley is worthless.
Furthermore, the Company references the testimony of Raymond T. Hersh, former Chief
Financial Officer of the Company stating the satisfaction of the Company with the
services of Proskauer 45.
However, sometime before, and during Mr. Hersh’s tenure with
the Company, we reference an electronic mail message from a one William R. Kasser, a
former accounting consultant of the Company to Eliot Bernstein, wherein Mr. Kasser, as
a result of an account reconciliation, alleges gross fraud in the booking of Company
revenues by Mr. Hersh and Mr. Brian Utley, as evidenced by Exhibit V attached herein.
Thus, First Judicial Department Departmental Disciplinary Committee should note that the reliance in any of Respondent's filings, and/or proceedings in this matter, on the
testimony of Mr. Hersh that would seemingly exculpate Respondent, by the above
declaration it is clear that the testimony of Mr. Hersh is worthless.
Additionally, the allegations surrounding the representation of Proskauer Rose LLP, through Respondent and Mr. Wheeler, finds support in the many pieces of evidence portrayed in Section I through XII, and the Complaint will still be better served by enlisting the
participation of First Judicial Department Departmental Disciplinary Committee in
securing the following items:
(I) records of Proskauer Rose records to determine the whereabouts of Respondent from the period of mid 1998 to February 1999; (II) records of MLGS, cross referencing the records of Proskauer to determine the whereabouts of Respondent from the period of mid 1998 to February 1999; and (III) an explanation and the series of events that led up to the referral of Mr. Raymond Joao by Respondent.
Lastly, in the near future, the Company intends to: (I) file a claim with the Lawyers' Fund
for Client Protection as a result of the alleged dishonest conduct in the taking of the
Company’s property, to wit, the irresponsible filing of provisional and non-provisional
patent applications under the supervision of Respondent; (II) fulfill its requirement to
report the loss of property to an Attorney Disciplinary (Grievance) Committee; and (III) fulfill its requirement to submit a written statement to the District Attorney of New York County.
Finally, the Company attaches a witness list, as Appendix I, that contains individual
names, addresses, and telephone numbers, all of which shall attest to Respondent’s, who
is desirous of maintaining Respondent’s personal financial gains, esteem, probable gains
to Respondent’s employer, Proskauer Rose, other gains from representing a soon to be trillion
dollar technology in MPEG 2, and clients from the multimedia patent pools and has
recruited Mr. Raymond Joao to assist, the Company alleges, in the burying the Company’s
inventions, and perhaps the facts of the matter, cross-currently, see Mr. Brian Utley, Mr. Christopher Wheeler, and Crossbow preparing for burying the Company itself, engagement in a series of dishonesties, appearances of untrustworthiness, conduct involving dishonesty, fraud, deceit, and misrepresentation as now conclusively shown by Section I through Section XII, supra, in general, and by Section I Subsection D. paragraphs 1 to 14, in particular
wherein Respondent dishonorably found the need to disavow, interalia:
any knowledge whatsoever of the Company; any knowledge whatsoever of Mr. Bernstein and the other true inventors; any knowledge whatsoever of techniques known as pan and zoom
technology; and through his refusal to answer questions regarding the allegedly
vicariously liable MPEG LA, LLC amongst others; his charge that the deposition was
harassment in that he had nothing to do with the Company; his steadfast denial of
technology known as scaled video; his claim as to never opining on the Company’s
technology; his denial of ever having been involved in meetings concerning the
Company; his denial of ever having any discussion with anyone at Proskauer Rose concerning
the Company’s technology; his admission of not keeping notes or records of his
conversations to Mr. Wheeler;
his acknowledgement of never having billed the Company, though his name appears more than a dozen times, absent those billings that may have purposely removed, in billings from Mr. Christopher Wheeler’s office; his denial of making any representations to any party with regard to the Company’s technologies; his stunning reversal of his possible conversation with third parties regarding the Company’s technologies; and, his lack of knowledge as to why his name appears in an electronic mail message to a member of AOL Time Warner’s investment team, wherein that message states that Respondent opined on the Company’s technologies; the facts of the matter, Mr. Thomas Cahill, when bolstered by Exhibits A through V attached herein, and matched against Respondent’s above referenced disavowals, are clearly beyond dispute.
Sincerely,
IVIEWIT HOLDINGS, INC.
By: P. Stephen Lamont
by Eliot I. Bernstein
his attorney-in-fact
u
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