by Ryan H. Flax, Esq.
(Former) Managing Director, Litigation Consulting
There are good reasons that more than half of A2L Consulting's trial graphics and litigation consulting work is related to patent law: 1) patent cases typically involve complex and technical subject matter that must be explained to non-technical judges and jurors, 2) the cases frequently make it to trial because settlements are often more difficult to craft in patent cases, and 3) patent cases may often have hundreds of millions or even billions of dollars at stake (which is another reason they don’t settle).
I've put together this article to let patent litigators, like myself, know what resources are available to them at our firm. Frankly, these are things I wish I knew when I was tasked with hiring a trial consultant, trial graphics firm, or trial technician while I was actively litigating patent cases.
Here are 11 things you should consider when involved in patent litigations, including several trial graphics and litigation consulting resources on A2L Consulting's site. I hope you find these valuable.
- Hire your patent trial graphics experts early enough for them to be helpful. There are many phases of patent litigation where you would be well served to have a litigation consultant and graphics firm on board. Markman briefing and hearings are the most obvious, but also consider using graphics with your summary judgment briefing, Daubert motions, motions in limine, and appeal briefing (have your demonstratives entered into the record for this).
- Thoroughly understand your judge and his court. Know the local rules, particularly if there are special patent rules (as there are in the E.D. Tex and N.D. Cal). Know what the courtroom has to offer in terms of presentation technology – do you need to supply a projector or screen? Know your judge’s preferences for the use of demonstrative exhibits (note, the judge’s position may change from Markman to trial settings). Set a favorable schedule (for you) relating to demonstrative exhibit exchange and objections – if you have a great graphics team, plan on exchange just a few days or one day before their use and a day to object. For all these things, enlist the aid of an experienced and successful local counsel, preferably one with a lot of patent litigation experience and a good relationship with the court.
- Download and read The Patent Litigator's Trial Graphics Toolkit. It is a free e-book with great tips and articles, many of which are shared individually below.
- Relatedly, download and read A2L's largest e-book to date that was just released, The BIG Litigation Interactive E-Book. In it, you’ll find many great tips, not limited to patent litigation.
- There are many excellent patent-related articles on A2L's litigation blog, The Litigation Consulting Report. They primarily discuss trial graphics, jury consulting, leading litigation teams and using courtroom technicians. I would encourage you to subscribe to the blog so that you are notified when new articles (like this one) are published. I frequently publish blog posts there, and my favorite subject is patent law. Here is a subscription link and here is a shortened link you can use or cut, paste and send to a friend: http://a2.lc/BlogSub
- Read: Perfecting the Patent Litigation Trial Graphics Tutorial for Your Judge As you know, a good tutorial can color the entire trial and has the potential to influence the claim construction. We used one in each of my concluded Saffran litigations against Boston Scientific Corp. and Johnson & Johnson, made by A2L. They were effective and seemed to help us be more persuasive during claim construction.
- Read: Preparing Trial Graphics for ITC Hearings Creating trial graphics for this face-paced jurisdiction is a must, and this article provides a good introduction from other patent litigators who have practiced before the ITC.
- Read: Explaining Patent Claim Language Using Trial Graphics How do you intend to make the jurors understand what comprises what and what the “said second surface being adjacent to the first surface” means? Use graphics – it’s a no-brainer.
- Read: Teaching Science to a Jury Using Trial Graphics See No. 8 above.
- Read: Making the Complex Understandable in Pharmaceutical Cases Using Trial Graphics Again, it’s hard to explain something technical that took you two years to fully understand yourself to your mom and dad, but that’s essentially what you need to do at trial. Using trial graphics will help, a lot.
- Watch: When I was litigating patent cases, I had a chance to use other trial graphics consultants and then use A2L. My perspective will perhaps not be surprising since I choose to join the A2L Consulting team, however the differences between our firm and others are vast and worth hearing about. I am also curious if you have had the same challenges that I did. I invite you to leave a comment below or contact me.
Ryan Flax is the Managing Director of Litigation Consulting at A2L Consulting. He joined A2L after practicing as a patent litigator who contributed to more than $1 billion in successful outcomes.