Not Infringed & Invalid

This image has an empty alt attribute; its file name is thumbnail_IMG_0657-1024x527.jpg

I’d like to congratulate my cocounsel at Latham & Watkins and Leon Carter of Carter Arnett a for a big win this afternoon in Judge Gilstrap’s court in Marshall – no claims infringed and all challenged claims invalid in a $63 million competitor case.

(Leon and I are not pictured in the group photo because we were still at the courthouse talking to any willing jurors – a trial lawyer’s job is not done till the jurors have left the property).

In its closing argument this morning plaintiff’s counsel asked the Marshall jury for $63 million for infringement of three claims. The jury came back at 12:45pm with a verdict that none of the claims were infringed and both of the claims challenged on invalidity grounds (both obviousness with one also challenged for improper inventorship) were invalid.

This is a slight improvement over last month, where we got a verdict of noninfringement, but the jury declined to invalidate the challenged claims.

Congratulations are in order to lead counsel David Callahan (opening, closing, JMOLs), who was joined by Leon Carter in closing and jury selection. Dave, Leon, Giri Pathmanaban, Susan Tull and I took on witnesses, and I handled objections to the charge. Some would say that it’s not a challenge when you have no objections, but since Judge Gilstrap asks for objections on a page by page basis, there’s always the risk of dry throat, which I gladly took on for the team. But that is an interesting point – neither side had any objections to the charge or verdict form.

The team backing us up this week back at the trial suite was stellar – Clem Naples, Bradley Hyde, Stephen Maniscalco, Rebecca Neubauer, Takashi Okuda, Kelley Storey, Daniel Todd, Crystal Boyle, Leslie Finley, Linda Smith, Amy Thomas, Aldo Camacho, Tim McGowan, Brian Koerper, Noel Rooney, Scott Pieper, Mitch McQueen, Abby Sullivan, as well as a great team at Overhead Door and some outstanding expert witnesses, Steve Leeb, Michael Tate and Josh Phinney.

Another fun week with late hours working with some good people for a great client. And now back to back noninfringement verdicts in February and March. Anyone need any help with an April trial?

Marshall Jury Noninfringement Verdict

U.S. District Courtroom – Marshall, Texas – Photo: Carol M. Highsmith

I want to congratulate my cocounsel on a win before Marshall jury in Judge Rodney Gilstrap’s court yesterday afternoon. After deliberating less than two hours the jury returned a verdict of noninfringement in this case between oil drilling companies. Cocounsel Kent Baldauf and Bryan Clark put on our client Amega West’s case, assisted by Barry Coyne and Derek Hehn from Immersion Legal.

The case was filed in 2014, worked up pretrial by SDTX Judge Nancy Atlas in Houston on referral, and returned to Marshall for a quick polish by Judge Payne last year (and last week) before we picked the jury Monday morning. Our experts were Baylor engineering professor Dr. Doug Smith (yes, he was one of Grayson’s professors) on infringement and invalidity and Dr. Stephen Becker on damages. The plaintiff’s ask was for $10.1 million, which was easy to remember because that was also the defendant’s approximate total revenues for the alleged infringing product during the period, and our damages expert’s number was $1.3 million or so. (Due to the age of the case, none of the trial involved confidential testimony or exhibits).

We will all remember as the high point of the trial Kent’s cross-examination of the plaintiff’s infringement expert, which was five questions that took two minutes, and which fit comfortably on one slide in closing.

As I noted, the jury found that none of the claims were infringed, but that none were shown to be invalid. Voir dire involved somewhat enhanced COVID-19 protocols compared to last fall, so we were limited to four people per side in the courtroom, and the jury was spread out in the gallery, as opposed to jury box & 1/2 gallery. But as usual, I enjoyed questioning the panel and hearing what they had to say about patents, lawsuits, and each other.

On a personal note, the trial was especially fun for me because I put on the same expert I had crossed in Judge Gilstrap’s court three months ago, and for the second consecutive trial I had cocounsel who had been opposite me on a previous patent trial. Both are part of what makes this line of work enjoyable.