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The Litigation Consulting Report

[Free and New E-Book] Patent Litigation Toolkit - 4th Edition

Posted by Ken Lopez on Wed, Feb 10, 2016 @ 03:51 PM

A2L PATENT LITIGATION TOOLKIT 4TH editionby Ken Lopez
Founder/CEO
A2L Consulting

Since our founding 20 years ago, nearly half of our consulting work has involved patent litigation. Patent cases are uniquely suited to our brand of consulting, which relies on storytelling, persuasive demonstratives, and the simplification of complex materials for communication at trial. So it is with great pleasure that we release the 4th edition of our Patent Litigation Toolkit (download here).

It seems obvious that our litigation consultants and litigation graphics consultants would routinely help patent litigators make their cases presentable and digestible for jurors. After all, these cases are often incredibly complex, involving issues of detailed mechanics, organic chemistry, and cutting-edge electronic technology.

Less obvious perhaps, is the need for good storytelling. In fact, a lack of good storytelling is the undoing of many a patent case and patent litigator. After all, jurors will develop a story about your case whether you give them one or not. If you've done your trial preparation correctly, you will have offered one to them that they can believe in.

This complimentary 270-page book is designed to help you with all of your patent litigation challenges - from storytelling to the simplification of complex material. I think you'll find articles like these very helpful: 

  • 5 Tips For Inter Partes Review Hearing Presentations at the PTO
  • 11 Tips for Winning at Your Markman Hearings
  • 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint
  • Introducing Mock Markman Hearings to Patent Litigation
  • Trial Graphics in Patent Litigation - 11 Great Demonstrative Tips
  • Explaining a Complicated Process Using Trial Graphics
  • 10 Things Every Mock Jury Ever Has Said
  • 5 Questions to Ask in Voir Dire . . . Always
  • 5 Essential Elements of Storytelling and Persuasion
  • 12 Worst PowerPoint Mistakes Litigators Make

This book is completely free and one of 20 that we offer as a complimentary resource to the legal industry. Download The Patent Litigation Toolkit 4th Edition by clicking here or by clicking the image below.

free patent litigation toolkit 4th edition from a2l consulting - top litigation consulants

Tags: Patent Tutorial, Markman Hearings, Litigation Graphics, Litigation Consulting, Litigation Support, Patent Litigation, Storytelling, Claim Construction, ITC, Design Patents

How the New Commil USA Supreme Court Opinion Changes Patent Litigation

Posted by Ryan Flax on Mon, Jun 1, 2015 @ 09:00 AM

 

us-supreme-court-patent-decision

by Ryan H. Flax, Esq.
(Former) Managing Director, Litigation Consulting
A2L Consulting

On May 26, 2015, the U.S. Supreme Court released its opinion in Commil USA, LLC v. Cisco Systems, Inc. (575 U.S. ____ (2015)) and it will significantly change patent litigation in the U.S.1

In Commil USA, the Court clarified when indirect patent infringement known as “inducement” occurs and how [not] to escape liability. As a bit of background, a patent can be infringed directly and indirectly. The Patent Act, at 35 U.S.C. § 271, makes it unlawful to make, use, sell, or offer to sell (in the U.S.) a patented thing or process without the patent holder’s permission. Part (a) of this section provides liability for direct infringement, that is, outright doing the thing that infringes a patent. Part (b) governs the first of two indirect infringements, induced infringement, and states “whoever actively induces infringement of a patent shall be liable as an infringer.” This is the focus of the Commil USA case. Part (c) of section 271 deals with the second of the indirect infringements (and interestingly, the one that was first statutorily identified), which is contributory infringement, which makes it an infringement to supply a non-staple, component for use in a patented thing or process.

Both types of indirect infringement require that some direct infringement occur and that the accused infringer actually know that its actions will constitute infringement of the patent at issue. The question before the Court was whether it was a proper defense to induced infringement that the accused infringer had a reasonable belief that the asserted patent was invalid. There is no question that there can be no infringement liability of an invalid patent claim, but does that matter when an accused infringer knows that its actions would otherwise infringe?

The Supreme Court held that, no, it does not matter. It’s no excuse and does not absolve liability for induced infringement that the accused infringer had a reasonable belief that the infringed patent was invalid. This is contrary to (and overrules) several years of precedent from the U.S. Court of Appeals for the Federal Circuit, which has held repeatedly that you cannot infringe an invalid patent and so reasonable arguments that a patent was invalid prevent induced infringement liability.2

indirect-patent-infringementThe law of the land on induced infringement is that if there is (1) a direct infringement of a patent and (2) you knew of the asserted patent and (3) you knew that the acts you actively encouraged would infringe that patent, you’re liable for infringement whether or not you thought that patent was valid or invalid. Validity is presumed, so as an accused infringer you can’t assume otherwise.

How will this affect patent litigation and patent counseling going forward?

If clients are potential indirect patent infringers, meaning they don’t actually directly infringe, but they either contribute to infringement (e.g., they supply the key component making infringement possible in an otherwise not-infringing product) or their actions would arguably encourage the direct infringement of others (e.g., a patent claims playing a video game and the client developed the software and sold the game hoping hundreds of thousands of gamers would play it), how can we help insulate them from liability?

Opinions of counsel are key and they must address non-infringement. The point of the legal opinion is to instill a reasonable belief in your client that they do not infringe.

As soon as your client learns of a patent and potential infringement, a well-reasoned (I’d suggest formal) opinion should be developed and it should focus first on a reasonable claim construction that takes the behavior at issue out of the scope of infringement. I do not advocate ignoring validity issues in these opinions, but no matter how well reasoned they are they will not mitigate against indirect infringement unless you actually succeed on the invalidity arguments at trial.

patent-infringement-willfulPre-trial opinions should set out solid reasons why there is no direct infringement. The claim construction is the first step. A reasonable claim construction that pushes the claimed invention away from the client’s behavior or product is the goal. The second step is identifying why the potential infringer’s (this is some third party because the client will be an accused inducer) actions fall outside the patent’s claim scope when properly construed. An alternative, more conservative argument on claim construction and non-infringement may also be warranted, using a claim construction more likely to be adopted by the patent holder. If a direct infringer’s actions reasonably do not infringe the more conservatively construed claims then you likely have a good argument against inducement.

The reasonable claim construction(s) developed at the pre-litigation counseling stage should be carried through to any litigation that ultimately develops so that the pre-litigation reasonable belief in non-infringement is reinforced. District courts get some deference in their claim construction holdings – that is, factual conclusions underpinning a claim interpretation under the law are reviewed for clear error, not de novo, thanks to Teva Pharma. USA, Inc., et al. v. Sandoz, Inc., et al., 135 S.Ct 831, 574 U.S. ___ (2015). This should be taken into consideration when developing non-infringement arguments and the facts upon which your claim construction is based should be carefully planned and soundly supported. Winning at the district court is important for this reason and, so, winning (or at least doing a reasonable job) the Markman is essential. If you had a pretty good, but still losing claim construction argument at the district court, you have an argument to the Federal Circuit that you had a reasonable believe you didn’t infringe the patent because of it.

Above all else, you must plan early to be the most reasonable man in the room when it comes to arguing non-infringement, whether your reasoning is based on claim construction or the facts.

Other articles on A2L Consulting's site related to patent litigation and the use of visuals in patent trials, in the ITC and in IPRs:

[1] The Court’s opinion was written by Justice Kennedy, the same judge who wrote the opinion in KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398 (2007).

[2] It should also be noted that the Federal Circuit has ruled similarly on the issue of enhanced damages for willful infringement – that a reasonable belief that a patent is invalid prevents the satisfaction of the first, objective recklessness prong under Seagate(497 F.3d 1360 (Fed. Cir. 2007)). It will be interesting to see if the Supreme Court has anything to say in the future on this issue. The Seagate rule does add that the risk of infringement must be of a “valid patent,” but this is a court-made rule and not statutory.

The materials on this website are provided for informational purposes only and do not constitute legal advice.

Tags: Markman Hearings, Litigation Consulting, Patent Litigation, Claim Construction, ITC, Federal Circuit, Inter Partes Review

Walking the Line: Don't Coach Your Experts (Re: Apple v. Samsung)

Posted by Ryan Flax on Tue, Apr 29, 2014 @ 01:49 PM

 

bdo not coach expert witnesses apple samsungy Ryan H. Flax, Esq.
(Former) Managing Director, Litigation Consulting
A2L Consulting

Expert witnesses are a key component of almost every big-litigation. As litigators, we rely on the evidence developed by our expert witnesses, presented as their testimony opinions based on the facts, to show jurors or the court why our client should prevail. Well, it’s not as easy to do this as you think, because you can’t control your experts and you also can’t leave it up to them.

In federal court, experts are bound by Rule of Civil Procedure 26 to disclose the subject matter upon which they’ll testify in court. As litigators, it’s our job to make sure (1) the expert report is accurate and comprehensive to the needed expert testimony that serves the client’s litigation needs and (2) that the expert is well prepared to be deposed and then testify on the subject matter of that report. Even very experienced expert witnesses need intense help preparing for depositions and trial testimony.  Inexperienced expert witnesses require a ground-up education.

So what happens if that report, as it was served to opposing counsel when it was scheduled to be, doesn’t jive with what you need that expert to say in court? We have just received a free lesson in what not to do from Judge Lucy Koh in the current edition of the Apply v. Samsung patent litigation currently underway in the Northern District of California.

Just to lay a bit of foundation for this lesson – the case involves several patents of each company who accused each other of infringement relating to smartphone technology. One of the Apple patents covers the swipe-to-unlock feature of the iPhone, another covers a feature called “quick links” found in Apple’s devices. This later patent (No. 5,946,647 shown below) has just now been returned to the Samsung litigation based upon an order by the U.S. Court of Appeals for the Federal Circuit, which in an opinion last Friday (April 25, 2014) revived the patent by affirming a claim construction by Judge Richard A. Posner from a different case by Apple against Motorola – Judge Posner’s claim construction contrasted with that of Judge Luch Koh in the Samsung litigation. 

Confused? So was the judge and so were the parties and so were their experts.

quick links patent apple samsung“Quick links” refers to a software function that recognizes text and other things viewable on a smartphone, e.g., a phone number, an email address, a date, or a name, and provides an automatic link to other relevant functions in the phone, like dialing that phone number, drafting an email, adding a calendar event, or adding a contact. Earlier in the Samsung trial, Apple argued that the Motorola-related case information be excluded – Judge Koh agreed and, so, neither Apple nor Samsung presented evidence relating to the Judge Posner claim construction of the ’647 patent (a key to the divergent construction seems to be that a separate thing, called an “analyzer server,” is required as a go-between for the recognizable link and the related functionality).

With all the apparent confusion over the correct claim construction at this point, you could almost forgive Samsung’s expert for using an ultimately incorrect claim construction of the ’647 patent’s claims in his expert report (he followed the one Judge Koh made giving claim terms their plain and ordinary meaning, but he could have given alternate opinions based on the divergent constructions of Judge Posner).  What he cannot be allowed to do, and what Samsung’s counsel cannot be allowed to encourage, is to testify in the current case on an opinion not expressed in his expert report on the patent (and, apparently also not introduced in deposition testimony, which could have arguably opened the door to the issue).

expert witness apple samsung coached preparedAfter Samsung’s patent/technology expert, Kevin Jaffay, testified, “I have been using this [Posner’s] construction since the first day I worked on this case,” a “visibly angry” Judge Koh said, “[i]n his report, he does not adopt Posner’s construction and then he gets up on the stand and says he adopted it from day one.  I’m going to strike what he said.  I think he was primed to say that and that’s improper.”  (reported by Law360, B.Winegarner (subscription required)).

Not only did Judge Koh strike Samsung’s expert’s testimony on non-infringement of the ’647 patent, she didn’t refund Samsung’s time on the chess clock at trial, which may be a crippling one-two punch for an already-behind-the-8-ball-Samsung. Quite a sanction by an angry judge.

The take-home lesson from this series of events is multifold. First, experts are bound by their expert reports, but that doesn’t mean their expert reports must be limited in any specific way.  As counsel, when we work with our experts to outline the issues to be addressed in reports and then, potentially, testified to at trial, we should be strategic and tactical and keep our experts on track, but be open-minded, flexible, and do our best to plan for every trial contingency so we can include “outs” in the expert reports. Here, it appears that Samsung’s expert suggested that he had considered Judge Posner’s claim construction all along, but his expert’s report did not bear that out in any useful way and it made an enemy of the already-sensitive judge (about her claim construction).

Second, we all know that as counsel it’s our job to get our experts totally ready to competently and persuasively testify at trial. We need to spend hours and days and weeks doing this witness preparation and cover all bases of evidence and all contingencies for trial developments and cross examination. However, what we cannot do is put words in our expert’s mouth. This is the line we must walk. It is the expert’s job to present his own opinions on the facts under the law as we explain it to him. It is not the expert’s job to be our and/or our client’s mouthpiece.  The lines are clearer in other countries, such as the U.K., but the principle remains true that expert witnesses are akin to servants of the court and the legal system – they are not advocates, that’s our job as counsel. Make sure you stay on the right side of the line by preparing, not coaching your expert witnesses.

Other articles related to expert witnesses and the Apple v. Samsung litigation from A2L Consulting:

Integrating Expert Evidence and Argument in Complex Cases Webinar

Tags: Patent Litigation, Trial Preparation, Expert Witness, Judges, Claim Construction, Witness Preparation, Apple v. Samsung

16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint

Posted by Ken Lopez on Tue, Feb 4, 2014 @ 01:35 PM


powerpoint litigation graphics consultants providersby Ken Lopez
Founder/CEO
A2L Consulting

Litigators do not need to know how to create advanced PowerPoint litigation graphics. However, litigators do need to understand what a skilled artist is capable of producing using the program. Most will be surprised to learn what's possible, and even veteran users of PowerPoint will think there's an element of magic in some of the presentations shared in this article.

As a litigation graphics consultant who has been using PowerPoint since the 1990s, even I am amazed by the litigation graphics some artists are able to create using PowerPoint. Using real artistic skill combined with PowerPoint's built-in features unleashes impressive creative potential. What used to require 2D and even 3D animation just five years ago can now often be produced within PowerPoint faster and with a fraction of the investment that used to be required. Then, best of all, everything created is available for a litigator or their trial technician to present right from PowerPoint without any additional software or fancy hardware. In many cases, it can even be presented right from an iPad.

Too often, people view PowerPoint as a program that helps someone put their speaking outline, usually in bullet-point form, in visual form on a series of slides. We have long counseled that the use of bullet point riddled slides hurts your trial presentation, especially when one reads bullet points. Fortunately, most litigators are changing with the times and paying attention to the good science that shuns the use of bullets.

We have written before about combining illustration with PowerPoint animation to achieve great results and the four types of animation one typically sees at trial. The purpose of this article is to help you understand how far you can stretch PowerPoint. It's not the right tool for every situation, however when used the right way and in the right hands, it is a powerful weapon of advocacy.

Below are 16 PowerPoint litigation graphics presentations (all converted into movies for easy online viewing) that most will be surprised to learn were created in PowerPoint by artists at A2L. We'd certainly welcome questions about how we created these graphics, and we would absolutely love to hear from artists who can do this kind of work well.

1. This PowerPoint litigation graphic prepared for a recent antitrust trial is really a timeline in an unusual format. To emphasize how difficult it is to run an airline in the United States, a long list of bankruptcies is set to scroll like movie credits in PowerPoint. Interested in more timeline examples, download our timeline book (opens in new window).

 

2. This PowerPoint litigation graphic was used by an expert in a patent case to explain how the design of a ship's hull affected its performance. Interested in patent litigation graphics, download our patent litigation toolkit for litigators (opens in new window).

 

3. This clever PowerPoint makes good use of motion path animation and illustration to explain video playback patented technology. The use of "tags" helps explain the concept of keyframing in video encoding and playback in a jury-friendly way.

 

storytelling persuasion courtroom litigation webinar

 

4. PowerPoint can even be used to show deposition clips. If you have more than a handful of deposition clips, you would probably want to use Trial Director to show them, but for a limited number or a group of short clips, PowerPoint does a good job.


 

5. This A2L PowerPoint litigation graphic, explaining how hydraulic fracturing (aka fracking) works, has been viewed more than 180,000 times on YouTube. The use of dials and animation of the drill head are not what you would normally expect from PowerPoint (link set to start video at 1:27). The voiceover audio is embedded into the PowerPoint.

 

6. This simple traffic cop animation explains the roll of an operating system in an easy-to-understand format. By using illustrations combined with animation in a PowerPoint litigation graphic where small parts are varied, an animated or cartoon effect is achieved within PowerPoint.

 

7. In a very simple way, this chart uses PowerPoint to show how Fahrenheit and Celsius scales compare to one another. Like many of the examples in this article, it's surprising that the graphic was created in PowerPoint.

 

8. This chart shows how a phone dialing system works and is designed for a judge's viewing in a claim construction setting rather than jury viewing during trial. Again, it is animated and presented entirely in PowerPoint.

 

patent litigation demonstrative evidence

9. Even a surgical procedure can be shown using a combination of illustration and PowerPoint animation techniques. Such work can make courtroom animation economically feasible in even small cases.

  

10. Here, to help demonstrate that a doctor was reading films too quickly to maintain an appropriate standard of care, an analogy to speeding is created in PowerPoint.

 

11. For a claim construction hearing, this PowerPoint was created to show how a drug delivery system works in a hospital environment. Claim language is shown in conjunction with the PowerPoint litigation graphic to give it context and meaning. I think it is a smart use of animated graphics juxtaposed with claim language.

 

12. Here, the removal of a nuclear power plaint reactor pressure vessel is shown. By creating illustrations that are shown in quick succession, the effect of animation is achieved in PowerPoint without having to go through the expense and complications of creating an animation.

 

13. Using PowerPoint's native interactive features, one can create hot-spots on a graphic that show a document or another image. This means that images do not need to be shown in linear order. This becomes useful when one wants to use a timeline built in PowerPoint and still have the flexibility to jump around to other documents. Interested in more timeline examples, download our timeline book (opens in new window).

 

14. Explaining complicated patent terms with PowerPoint litigation graphics becomes much easier when coupled with a straight-forward analogy like the one shown here. Simply a local bus and remote bus (computer communication systems that move data between components) bear similarities to traffic patterns that are easy for a jury to understand. Interested in patent litigation graphics,download our patent litigation toolkit for litigators (opens in new window).

 

15. Making heavy use of illustration, this PowerPoint serves as a timeline that explains how a worker was electrocuted on a job site and went undiscovered for some time.

 

16. Finally, here is an example of how one might use the interactive features of PowerPoint to tell a complicated story in a mortgage-backed securities case. The user is free to click on any of the state icons to view developments in other locations in any order they choose.

 

Using PowerPoint litigation graphics will solve many trial challenges, however one needs to know when to use PowerPoint, Flash, a physical model, a trial board or a more sophisticated 3D animation program. To make that judgment, ask your litigation graphics consultants or contact A2L.


Articles related and resources to PowerPoint litigation graphics on A2L Consulting's site:

using litigation graphics courtroom to persuade trial graphics a2l consulting

Tags: Patent Tutorial, Markman Hearings, Trial Graphics, Litigation Graphics, Demonstrative Evidence, Animation, Patent Litigation, PowerPoint, Claim Construction, Information Design

The 5 Biggest Issues in Patent Law Right Now

Posted by Ryan Flax on Mon, Nov 25, 2013 @ 10:38 AM


by Ryan H. Flax, Esq.
(Former) Managing Director, Litigation Consulting
A2L Consulting

The field of patent law, like all other areas of the law in the U.S., is constantly in flux and is constantly being refined or even rewritten by the courts and the lawmakers.  Even more so than most other areas of law this is true for patent law because, if for no other reason, there are so many nuances to it and so many different complimentary and competing doctrines within the greater label of “patent law.” 

patent litigation law issuesTo make matters more volatile, patent practitioners have two courts to deal with in terms of those believing they’re the last word on the relevant law: the U.S. Court of Appeals for the Federal Circuit and the U.S. Supreme Court.  We all know who really gets the last word on things, but for most patent issues, the Fed. Cir. makes the law.

Well, guess what, the lawmakers in Congress also think they have something to say about the patent laws they initially wrote (or someone in the seat they now occupy wrote).  The wheels on Capitol Hill are turning again over the patent laws (they have to do something up there while they’re not addressing the nation’s financial concerns).

So, recently there have been some interesting issues evolving in patent law.  Here’s a brief review to keep everyone up to date.

1. Trolls – slaying the beast under the bridge

patent trolls litigationThe most frequent patent news as of late relates to newly proposed legislation to make it less attractive for non-practicing entities, also called patent trolls, to sue as a business model.  Patent trolls are usually categorized as entities that own patents, but not the inventor of the claimed subject matter, that use those patents aggressively to solicit fees from companies they allege infringe their patents.

Most recently, a bill called the Patent Litigation Integrity Act (S. 1612) was introduced in the U.S. Senate by Orrin Hatch (an experienced IP legislator) and proves for fee shifting in patent enforcements that aren’t “substantially justified” and allows for an accused infringer to move the court to require a bond be posted by the plaintiff.  Prior to that, the Innovation Act (H.R. 3309) was introduced in the U.S. House of Representatives and provides for fee shifting of litigation costs and heightened pleading requirements, as well as a requirement that a party enforcing a patent disclose patent ownership information from the outset of a lawsuit.

There’s some pushback on such proposed legislation within the patent practitioner community, not the least of which comes from former Chief Judge of the Fed. Cir., Judge Paul Michel (Ret.) (he made his comments, by the way, at the 15th Annual (Ray) Niro Distinguished Intellectual Property Lecture – Ray Niro is a well-known patent plaintiff’s attorney).  Likewise, the current Chief Judge Randall Rader warned lawmakers of overreaching in a speech at the Eastern District of Texas Bench Bar Conference – both decrying the “litigation blackmail” of some patent owning plaintiffs who seek to extort settlement that is less than the cost of a defense and also balancing this by saying that the solution is not special rules for patent owners that don’t make or sell any products.  Opposition aside, it’s apparent that people are getting fed up with the tactics of trolls and the climate is ripe for some action.

patent litigation demonstrative evidence

2. Claim Construction – deference to district court

patent litigation trial graphicsAs patent litigators we’re all aware of how important the claim construction is to the entire case – it often dictates the outcome before the jury selection even takes place.  So, it’s with high interest that we all await the en banc opinion from the Fed. Cir. in Lightning Ballast Control v. Philips.  This case is all about how much deference to give the district court in reviewing its claim construction order.  As it stands now, the 1998 Fed. Cir. ruling in Cybor makes claim construction a pure issue of law and allows absolutely no deference to the trial court judge’s opinion.

Both parties in the Lightning Ballast case agree that the standard de novo review applied by the Fed. Cir. in reviewing claim construction is not the way to go.  What they argue over is merely what parts of the district court’s claim interpretation get deference. 

I personally can’t wait to see the result.  It hardly seems fair for the Fed. Cir. to identify a brand new claim interpretation, one that never had to be proved-up at the district court, and still outright reverse a jury verdict.  But, this happens all the time.  The opinion in Lightning Ballast should improve things one way or another.

3. Damages and Costs?

The U.S. Supreme Court has granted cert. in several IP cases this term.  One of them, Octane Fitness, LLC v. ICON health & Fitness, Inc., involves the issue of determining whether a case is “exceptional” and, thus, warrants increased damages or the award of attorney fees.  Fed. Rule Civ. Pro 11(c) and Patent Act section 285 each provide for the award of attorney fees as a sanction against the loser of certain cases.  The Patent Act requires an exceptional case for such an award.  What’s exceptional?  A finding of willful infringement will make it so.

Again, in Highmark Inc. v. Allcare Heath Management Sys., the subject of attorneys fees are at issue.  In Highmark the question relates to whether any deference must be given to the district court’s award of attorney fees. 

So, as winners, we all want to collect attorney fees – we’ll have to stay tuned to see how it will be done in the future.

4. Burden of Proof – should it shift?

Just in the last couple of weeks (November 5) oral argument [PDF] was heard in the U.S. Supreme Court in Medtronic Inc. v. Boston Scientific Corp.  The issue is whether, in a declaratory judgment (DJ) matter, the burden should be on the possible-infringer plaintiff or the patent-holding defendant to prove either non-infringement or infringement, respectively.  Normally, a patent holder has the burden of proof to establish by a preponderance of the evidence that those he accuses have infringed. 

patent law litigation graphicsA DJ situation is skewed, though, in that the would-be infringer brings the case to establish that he hasn’t infringed (or that the patent is invalid and he cannot infringe).  That would-be infringer here (Medtronic) is a licensee, so the defendant-patent-holder’s position is that, as a licensee in good standing, he has no right to assert a counterclaim of infringement.  So, a licensee-party can sue a patent-holding-licensor, force them to litigate, and also force the burden of proof on them.  Weird, eh?  In any event, we’ll definitively know the answer to this question in a few months.

5. Post-Grant Stuff at the USPTO

The America Invents Act, now in full effect, created new ways to challenge issued patents: inter partes reviews (IPR); post-grant reviews (PGR); and covered business method reviews (CBM).  It appears that these are becoming pretty popular strategies as more and more litigators recognize how each challenge can fit into their practice and specific client situation.  Apparently, as of this Fall, there have been almost 600 IPR petitions, a the rate of about 60 per month.  Experts expect this rate to double in the coming year.

To add fuel to this fire, recently the Fed. Cir. held in Fresenius USA Inc. v. Baxter Int’l Inc., 721 F.3d 1330 (Fed. Cir. 2013), that an invalidity (unpatentability) ruling by the USPTO Paten Trial and Appeal Board mooted a pending district court case once the patent was found invalid.  Interestingly, the district court had reached the opposite ruling and was essentially overruled by the USPTO.

patent litigation toolkit 3rd edition free ebook

 

Tags: Markman Hearings, Patent Litigation, Judges, Claim Construction, Federal Circuit

11 Tips for Winning at Your Markman Hearings

Posted by Ryan Flax on Thu, Oct 10, 2013 @ 02:25 PM


patent claim construction hearings markman hearingsby Ryan H. Flax, Esq.
(Former) Managing Director, Litigation Consulting
A2L Consulting

I am a patent litigator, and I have participated in dozens of Markman or claim construction hearings both as a lawyer and as a litigation consultant. The results of some of my cases (where a Markman hearing has occurred) are on the lists of top patent litigation damages awards of all time. It was true in my cases as it is in essentially all patent cases that without a successful Markman outcome a successful trial is unlikely. This is even more true today as we near the Federal Circuit’s en banc ruling in Lighting Ballast Control LCC v. Philips Elec. N. Am. Corp., where the degree of deference to be given a district court’s claim construction will be decided. It seems clear that some deference will be conferred to the district courts as claim construction fact finders.

If you don't know, the term "Markman" refers to the 1996 Supreme Court case of Markman v. Westview Instruments where the Court held that a judge should decide what the language of a patent means as a matter of law and not a jury. In patent litigation, a Markman hearing is also called a claim construction hearing.

So, when preparing for your Markman briefing and ultimately the hearing, consider the following:

2 yutes judge1. Know your judge: There are many ways to learn about your judge. A2L published an article recently called 21 Ingenious Ways to Research Your Judge. That is a big help, and I think it pretty well covers what you need to do. Some other things to consider about your judge are whether he/she is technically savvy (or whether he/she merely believes him(her)self to be so)?; does he have a lot of patent experience?; does he appreciate the use of demonstratives and, if so, does he have a preference for type (electronic, boards, models, etc.)?; is he prone to following counsel’s proposed constructions or “going his own way”? There are many more considerations, but these will help you prepare your arguments and presentation style. 

2. Understand your tech tutorial procedure: Not all cases require a tech tutorial, but for those that do, learn what your judge prefers. Some judges like to conduct a separate tech tutorial live event where he will entertain live presentation from counsel or an expert and have the opportunity to ask questions. This is not common and I was a bit surprised to have been engaged in such a hearing recently, but it is one way for the judge to go. Some like to have electronic tutorials of 30 minutes in length submitted to them. This will be a packaged presentation with graphic animations and voice over scripting, in most cases. Other judges like to merge a tech tutorial with a Markman hearing.

patent litigation webinar

3. Consider a Mock Markman exercise: A mock Markman hearing is not for every case. There are natural challenges with it, especially trying to model the anticipated behavior of your judge. But, if you’re trying to hone your claim construction positions, develop strategic plans for your argument, and/or see how you come off in oral argument, a mock exercise is a great way to do it. Also, you can keep costs down by just engaging a litigation consultant with patent experience to evaluate your presentation (along with any co-counsel you want included), or you can add evaluators like PhD psychologists and/or retired judges.

4. Work with your expert: Sometimes an expert participates in a Markman hearing. When they do, their presentation is critical to your success. Even if your expert is not participating in the claim construction, he or she will later be presenting a report and testifying in depositions and in court, so you all had better be on the exact same page during this crucial first step and all along the way. I encourage you to work with your litigation consulting and graphics team to prepare the expert for what’s to come.

bruce lee mistakes5. Practice: They call it the practice of law, but nobody seems to be doing much practicing. At A2L, we advocate for a 30:1 ratio of practice time to presentation time. You need to be able to present your case without notes and without relying on your graphics as a crutch, while also speaking to and effectively using your demonstratives for support and persuasion. Don’t be afraid to “fail” or look bad in practice  (which I find to be a trait commonly holding back attorneys). As Bruce Lee once said, “[m]istakes are always forgivable, if one has the courage to admit them.” Make all the “mistakes” during practice so you have a flawless victory at the hearing.

6. Know what are your must-win points:. This requires carefully considering how you’ll win your case and/or why you’ll lose your case. Know where the landmines are (as they relate to your claim language in dispute) relating to infringement and validity. Know what you can still lose at the Markman stage without losing the war. Likewise, know what you can’t lose and focus your energy and spectacular logic there. You MUST plan for every contingency.

peanuts setting up opponent straw man7. Set up some okay to lose points: Per the last point, there will be plenty of claim terms in dispute that, regardless of who wins, it won’t matter to you. Like a well-trained judo master, you can make a big deal about these with opposing counsel as a lure for their argument at your Markman, while knowing that you’ll be focusing on the terms that are your “must-wins,” as discussed above.

8. Make sure your paper is perfect: Generally, you will submit your Markman brief before your hearing. It is an opportunity to win on paper, which happens often. Look at your brief as an opportunity to familiarize the judge with the technology at issue while of course encouraging the best claim construction possible. Take the opportunity to insert professionally crafted graphics into the brief to make your key points. Also, your brief is also going to be representative of you and your client, so make sure it’s well written, easy to read, and grammatically and typographically flawless. I was surprised to recently read an opposing party’s Markman brief that was rife with typos and poor grammar. In my opinion, this is unforgivable. 

9. Start your graphics early: Conducting a Markman hearing without graphics is patent litigation suicide. At a minimum, you are going to want to show the claim language and probably a lot of the patent specification and drawings. You’ll likely also want to refer to and show parts of the prosecution history. You should go further of course. If the technology is particularly complex, you’ll want to explain it visually so the judge has no question what he/she is dealing with.

10. Try to come to an agreement with opposing counsel on as many disputed terms as possible. Point it out to the judge that a lot has been resolved independent of him. He will appreciate the collegial spirit of the parties and it will pay off down the road. On the terms you cannot agree on, have a rock solid reason for your refusal to agree. This reason must flow from the intrinsic record and must never appear to be an infringement-focused or validity-focused rationale.

11. Finally, I’m not a fan of offering the court alternative claim constructions. When you want a claim term construed a certain way, stick with it. For example, if the term’s plain and ordinary meaning is what you think is proper, don’t offer a “next best” interpretation. Tell the judge what the plain and ordinary meaning is. If he thinks it warrants inclusion in his construction order, that will be the construction you want him to use later, whether it’s called the plain meaning or not. I believe you’re either right about a construction or wrong about it. Pick one.

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Tags: Patent Tutorial, Markman Hearings, Litigation Graphics, Patent Litigation, Judges, Claim Construction, ITC

Introducing Mock Markman Hearings for Patent Litigation

Posted by Ryan Flax on Mon, Nov 26, 2012 @ 09:45 AM


mock markman hearings claim constructionby Ryan H. Flax, Esq.
(Former) Managing Director, Litigation Consulting
A2L Consulting 

What’s the most important part of a patent litigation?  Unless you’re a patent attorney, chances are you don’t really know.

Regardless of who you are or what you do, you probably understand that patent litigation is an extremely complex process – from beginning to end.  What we patent attorneys know, and the answer to the question above, is that the pivotal point in every patent litigation is the claim construction hearing – called a Markman hearing by patent litigators.

Patent claim construction in Federal Court involves extensive briefing of opposing positions over the course of several weeks or months.  In prelude to this briefing, each party will have likely put in thousands of hours in analyzing the patent claims at issue and developing their positions in view of infringement and validity concerns (if you’re the plaintiff, or non-infringement and invalidity concerns if you’re the defendant).  The briefing culminates in a hearing before the court where the parties present oral argument in support of their claim construction positions – the Markman hearing.

markman patent at issue hearings claim constructionHere’s the famous (if largely unknown) patent that started it all.  It’s a bit shocking to believe that one of the foundational underpinnings of patent law – that claim construction is an issue of law for the court – sprang from a patent covering the humble technology of dry cleaning tracking.

Patent claim construction by the court is so very important because it often determines the outcome of the case.  If the claims are interpreted too broadly they may easily cover the accused infringing thing or method, but they will also be more exposed to invalidity attacks.  On the flip side, if the claims are construed narrowly they may be somewhat immunized from invalidity, but may not read on whatever is accused of infringement.  And, to add to the complex balancing act, each and every word of the patent claims is susceptible to interpretation by claim construction (although, typically, only some of the claim terms and phrases are at issue in any case) and any wrong turn can spell disaster for your case.

Jury consulting has been a staple tool for litigation teams seeking to gain an edge over their competition.  Patent litigators, in particular, have been frequent mock jury users because of the typically high-stakes of patent cases.  Less frequently (verging on never), however, do patent litigation teams utilize a mock Markman hearing.  But, why?

We know that the Markman hearing and claim construction process is probably the most important part of a patent litigation, so why do patent litigation teams not use a mock Markman process to vet their claim construction positions prior to briefing and oral argument?  Perhaps it’s the lack of a layperson-filled jury and the emphasis on patent law.  Regardless of why, it’s a process that should be used and is now available to patent litigators through A2L.

mock markman hearings mock claim construction patent litigationA2L provides a range of options for mock Markman hearing needs.  The process can be somewhat informal, with counsel presenting oral argument and briefing on a few select claim terms for interpretation.  Such a process can be “presided over” by our litigation consultants, including myself (I am a patent litigator with over 12 years experience and over $1 Billion in damages awarded to my clients).  Or, the process can be highly formalized with full briefing and oral argument and participation of a panel of former federal judges.  The level of formality depends on client preference, desired budget, and expected multiplicity of mock Markman hearings (you are not limited to just one).  Regardless of format, you get a formal report and projected claim construction from an unbiased, disinterested observer upon which you can fine tune your case, tie up loose ends, prevent yourself from taking too broad or too narrow a claim construction position, and identify which claim terms to fight aggressively over and which to let go.

As a patent litigator, you should consider using a mock Markman process to gain an edge over your competition.  Contact A2L when you’re ready.

More on A2L's site about patent litigation, claim construction and Markman hearings.

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Tags: Patent Tutorial, Markman Hearings, Trial Graphics, Trial Consultants, Litigation Graphics, Trial Presentation, Jury Consulting, Mock Trial, Trial Consulting, Patent Litigation, Claim Construction

Apple v. Samsung: Thanks to Patent Reexam - It's Not Over Yet

Posted by Ryan Flax on Mon, Oct 29, 2012 @ 12:26 PM


patent reexam apple samsung litigation consultantby Ryan H. Flax
(Former) Managing Director, Litigation Consulting

A2L Consulting 

It feels like I’m beating a dead horse, but there is obviously still some life left in the Apple v. Samsung patent case. Interesting things continue to develop since since I wrote about storytelling and the case going to the jury, the jury's verdict and the implications for design patents.

Last we left the Apple v. Samsung saga, the parties were arguing about damages enhancement and injunctions.

On Monday, Samsung filed a statement with the U.S. District Court in California informing the Court that the U.S. Patent and Trademark Office has just rejected claim 19 of U.S. Patent 7,496,381 as being unpatentable as anticipated by the prior art (actually, all 20 claims were rejected, but only claim 19 matters here).

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The ‘381 patent is directed to the “screen bounce-back” feature of the “iProducts” and was one of the six Apple patents found infringed in the case.  Claim 19 was the sole claim of the ‘381 patent at issue in the trial.

apple samsung litigation consultants patent reexamClaim 19 of the ‘381 patent was rejected by an USPTO patent examiner in what’s called an ex parte reexamination, or “reexam” proceeding by those of us in the field.  A reexam is a reopening of the USPTO’s patentability examination of an issued patent based on prior art.  Normally, once a patent is granted (issued), the story is over.

However, either the patent-holder or some unknown, undisclosed party can file for a reexam if some new issue of patentability (prior art) is discovered after the patent is granted by the USPTO. The term “ex parte” means that even if some third-party provoked the reexam, after the reexam is instituted, only the USPTO and the patent holder are involved – the provoker (here, likely Samsung) gets out of the way.

The finding that a single claim is not patentable is not the same as finding an entire patent invalid.  It means that that single claim is invalid (this is also how it is supposed to work at trial – on a claim-by-claim basis).

ryan flax litigation consultant a2l consulting graphicsThis is not the first reexam for the ‘381 patent.  There was another that concluded in April 2011 that found each of the claims, 1-20, patentable.  But, as is clear, just because a patent has been through reexam once does not foreclose it happening again and with a different outcome.

The effect of this claim being found unpatentable is not yet clear.  Samsung suggests that the ’381 patent is likely no longer infringed and that the new rejection should have an impact on the damages enhancement and potential injunction now at issue in the case.  The reality is that we cannot be certain that this rejection will stand. 

There is still an ongoing discussion between the USPTO examiner and Apple over the patentability of the patent claims. The rejection of claim 19 is not yet final.  It is possible that Apple’s patent prosecution attorneys will convince the examiner that the rejection is incorrect and that it will be withdrawn. It also may be maintained finally and the claims cancelled by the USPTO.

It is likely, however, that this reexam rejection could affect the enhancement of damages to some degree.  Enhanced damages in a patent case are awarded if the infringement is willful and determining willfulness is an objective test for the court to determine if the infringer had a reasonable belief that they weren’t infringing. The rejection of the ’381 patent’s claim 19 seems to establish that Samsung should have had a good faith belief that the claim wasn’t valid and, thus, that it didn’t infringe. 

Since there are a bunch of other Apple patents not expressly in question by the USPTO and found infringed, it is doubtful that this even will sway the decision on injunction much.  A product can be enjoined from importation or sale even if it only infringes one claim of the six patents-at-suit.

I’m eager to see if this horse gets up again.  Let’s all stay tuned.
 

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Tags: Litigation Consulting, Patent Litigation, Claim Construction, Apple v. Samsung

14 Places Your Colleagues Are Using Persuasive Graphics (That Maybe You're Not)

Posted by Ken Lopez on Thu, Oct 11, 2012 @ 08:15 AM


persuasive graphics trial litigation graphicsby Ken Lopez
Founder & CEO
A2L Consulting 

People often focus on the use of trial graphics in, well, trials. And there’s no doubt that that’s where persuasive graphics, presentations, and exhibits are most often used. But you might be surprised to see how many other places are appropriate for the use of litigation style graphics. Here are 14 good examples. 

  1. In motions: A juror will never see them but a judge will. For more on this topic, read our article on using litigation and trial graphics in motions.

  2. In briefs: Generally, trial graphics are used for perfectly normal reasons in briefs. Occasionally, an attorney will use them for the sake of humor or just to prove a point. See this comical courtroom brief.

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  3. In depositions: One of our clients recently asked us to prepare litigation graphics for depositions with an eye toward using those same graphics at trial.

  4. In mock trials: These can be an excellent investment of money and time in a case that is large enough and significant enough to justify the use of litigation graphics during the mock. See our article on using litigation graphics during a mock trial.
     
  5. In pre-trial hearings: We all know graphics are used in Markman hearings, but they are also frequently used in summary judgment hearings and in hearings on motions to dismiss. Again, the jury will not see the exhibits but a judge will.

  6. In arbitration and alternative dispute resolution: This use of trial graphics is overlooked more than others. Many arbitrations follow rules of evidence and resemble trials, and litigation graphics are quite appropriate in them and in ADR generally.

  7. In class certification hearings: Graphic demonstrations can be used in many aspect of class actions, and the issue of “predominance” is one in which they are especially useful.

  8. In advocacy and lobbying presentations: Hydraulic fracturing is a controversial issue, and the graphic that we prepared shows how fracking works and may dispel some unwarranted myths and fears about fracking. It's received 60,000 views as of this writing demonstrating how one might use PowerPoint and video to get a message out.

  9. In presentation graphics: Most of us prepare and deliver presentations as part of our work. This article on presentation graphics showing how the President prepares and delivers an effective visual presentation using persuasive graphics is a good guide for any of us.

  10. In e-briefs: This technique is being used more and more frequently by trial lawyers, and e-briefs are now including litigation graphics, sometimes animated graphics too.

  11. In e-discovery disputes: Sometimes, a courtroom presentation consultant will demonstrate what documents were missing and why sanctions were warranted. Sometime the graphics illustrate, to the contrary, that the documents were completely or largely produced or that the matter in dispute is not large enough to require sanctions. E-discovery hearings are utilizing persuasive graphics more and more.

  12. In settlement discussions: We have seen trial graphics prepared for settlement many times in the last two decades. Recently, however, the sophistication demanded of those graphics has been on the rise. Sometimes, even high-end 3-D animations are prepared. The trick, of course, is to balance the persuasive benefit of the graphics with the risk that settlement talks fail, and you tip your hand leading up to trial.

  13. In pre-indictment meetings: As government budgets have increased over the last four years, so too have pre-indictment meetings with prosecutors. We have prepared countless 'clopening' style presentations for these meetings hoping to help our client avoid indictment altogether. Well-thought-through persuasive graphics may help avoid a negative life or company changing event.

  14. In technology tutorials: No longer are technology tutorials used only in patent cases to help educate the judge. Litigators are requesting to submit them in other cases where educating the judge is beneficial to both sides. This could include complex financial cases, large antitrust matters with a complex product at issue and many other types of cases.
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Tags: e-Briefs, Patent Tutorial, Markman Hearings, Arbitration/Mediation, Presentation Graphics, Advocacy Graphics, Judges, Claim Construction, Depositions, White Collar, Class Action

Explaining Patent Claim Language in Patent Litigation

Posted by Ryan Flax on Fri, May 18, 2012 @ 11:37 AM


Quick, tell me what this patent claim language means:

explaining claim construction language patent litigation

Unless you’re a patent geek like me, you probably haven’t the foggiest idea how to interpret this language.  But if you are an attorney in a patent infringement litigation, your job is not only to explain to a judge and jury what claim language means, but do so in a convincing and persuasive manner. If the fact finder remains as perplexed after your presentation as you were on first reading of these words, you are unlikely to win your case.

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iphone slide to unlock patent drawingWould it help you understand this claim language – from U.S. Patent 7,657,849 – if I showed you one of the drawings from the patent?  I suspect it will, so here’s one to the right.

So what have you learned now?  Now you know what the claim probably means by “a touch-sensitive display” because this figure says right on it that you’re looking at a “Touch screen.”  Still, what does the claim language cover, specifically?  What sort of product might infringe this claim?  Here’s a big hint:  This patent is owned by Apple Inc.  I’m sure you’ve guessed it now – this patent is written to cover this product below.

apple iphone slide to unlock patentSeeing the iPhone, as in the image to the left, makes most of the claim language pretty clear.  This is the now-famous Apple “slide-to-unlock” patent that covers the way users unlock the screen on an iPhone or iPad to use the device.  Hasn’t the language become so much clearer now that you have the graphical information I’ve provided by showing you an iPhone? 

People, including judges and jurors, are usually combination learners, and visual information is an important component of teaching and being persuasive.  Now that you’ve seen the iPhone, it’s probably pretty clear to you what the claim term “display an unlock image” means.  Also, it’s probably equally clear what the claim means by “transition the device to a user-interface unlock state if the detected contact corresponds to moving the unlock image along a predefined displayed path” – it means that the device senses that you’ve slid your finger along the arrow I added to the iPhone picture.  Pretty clear now, isn’t it?

Now, what other products might infringe this Apple patent?  What other products might use this type of unlocking feature?  What about this one?

 

android slide to unlock patentWow, HTC's new phone looks pretty similar, doesn’t it?  Are you convinced?  Maybe not completely yet, but you cannot deny that the similarities in this comparison are compelling.  This is a simple example of why trial graphics are so important, particularly in patent litigation when explaining claim language.

 

Additional Patent Litigation Resources on A2L Consulting's site:

 

Free E-Book: The Patent Litigation Trial Presentation Toolkit

Ryan Flax: 5 Surprises Transitioning from Patent Litigator to Litigation Consultant

20+ Articles About Patent Litigation from A2L

Free Subscription to the A2L Blog

Making Patent Drawings Come Alive!

Perfect Patent Tutorials for Your Judge

Creating a Presentation for an ITC 337 Hearing




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.  

Tags: Patent Tutorial, Markman Hearings, Trial Graphics, Litigation Graphics, Trial Presentation, Patent Litigation, Claim Construction

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Authors

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Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.


tony-klapper-headshot-500x500.jpg 

Tony Klapper joined A2L Consulting after accumulating 20 years of litigation experience while a partner at both Reed Smith and Kirkland & Ellis. Today, he is the Managing Director of Litigation Consulting and General Counsel for A2L Consulting. Tony has significant litigation experience in products liability, toxic tort, employment, financial services, government contract, insurance, and other commercial disputes.  In those matters, he has almost always been the point person for demonstrative evidence and narrative development on his trial teams. Tony can be reached at klapper@a2lc.com.


dr laurie kuslansky jury consultant a2l consulting







Laurie R. Kuslansky, Ph.D., Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

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