Posts Tagged: "patent litigators"

So what is unique about this particular victory at the district court that caught my attention? The timing of the victory and circumstances surrounding the culmination of the case seemed peculiar to me. Moments before opening arguments were set to begin and after the jury had been selected ISE consented to entry of a judgment of non-infringement in favor of CBOE. ISE had been seeking over $400 million in actual damages and was requesting those damages be tripled. But why throw in the towel right before trial on a case that had already once gone up to the Federal Circuit? Fish & Richardson attributes the victory, and particularly the timing of the victory, to a strategy that involved a series of pre-trial motions, including motions in limine to exclude certain evidence at trial.

It’s no secret patent litigation costs are immense. According to the American Intellectual Property Law Association, the cost of an average patent lawsuit, where $1 million to $25 million is at risk, is $1.6 million through the end of discovery and $2.8 million through final disposition. Adding insult to injury, more than 60% of all patent suits are filed by non-practicing entities (NPEs) that manufacture no products and rely on litigation as a key part of their business model. Patent litigation will always be costly, but by planning, preparing, assessing, narrowing and focusing – the attentive client or counsel may succeed in achieving some predictability and keeping costs to a minimum.

In the last decade, a substantial market has begun to develop for contingent fee representation in patent litigation. Wiley Rein — a traditional general practice law firm with hundreds of attorneys practicing all areas of law — represented a small company, NTP, Inc., in its patent infringement lawsuit against Research in Motion, the manufacturer of the Blackberry line of devices. The lawsuit famously settled in 2006 for $612.5 million, and the press reported Wiley Rein received over $200 million because it handled the lawsuit on a contingent fee basis. And Wiley Rein is not alone in doing so. Many patent litigators around the country have migrated toward handling patent cases on a contingent fee basis.

Ray Niro is a nationally recognized trial attorney specializing in the enforcement of patent, trade secret and related intellectual property rights. The name Niro, however, is not like any other in the patent industry. It was as a consequence of a lawsuit one of his clients brought against Intel in 2001 that the term “patent troll” was coined. On March 12, 2012, Niro went on the record with me in an exclusive interview. We discussed many things, including the nearly constant attempts to erode patent rights, make it more difficult for patent owners to seek redress for infringement and what the America Invents Act will mean for patent litigation moving forward. We also discussed the undeniable reality that there are bad actors in the industry.

Raymond P. Niro is patent litigator with tremendous experience and a reputation that is larger than life. To some he is a champion of independent inventors and small business community, frequent clients of his. To others he is nearly the definition of evil. It was as a consequence of a lawsuit one of his clients brought against Intel in 2001 that the term “patent troll” was coined. He has been trial counsel in literally hundreds of intellectual property cases, and since 1996, has won verdicts and settlements for his clients totaling more than $1 billion. On March 12, 2012, he went on the record for this exclusive interview.

If you believe that prior user rights are insignificant and don’t deserve discussion you have permission to keep your head firmly planted in the sand. Everyone else keep reading. Think of all that will easily be fair game in discovery. The defendant has the burden of proof and controls the evidence. Judges are going to allow liberal discovery, particularly where the evidence is uniquely held by the defendant and cannot otherwise be obtained by the patentee. When things go wrong it will be the lawyers who are at the short end of the pitch-fork. Don’t let that be you!

Patent litigation often turns on obscure and long-buried facts, and some private investigative firms are developing expertise that can help patent counsel – on both the defendant and plaintiff sides – find information to support and even shape litigation strategy. Below are five examples of common problems that patent counsel often face in contemplating, bringing or defending lawsuits, and how…