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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 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

Design Patents: Still Poised for Prominence

Posted by Ryan Flax on Thu, Feb 7, 2013 @ 07:00 AM

design patents intellectual property litigation consultingby Ryan H. Flax
(Former) Managing Director, Litigation Consulting
A2L Consulting

I’ve written in several past articles (here and here) about what I saw as a true turning point for design patents in the United States. I explained that, based on the Apple v. Samsung trial in the Northern District of California, which provided a clear example of the presentation and litigation power of design patents as a sword against competitors, but also capped this off with the third-largest patent damages verdict in U.S. history regardless of patent type (utility or design), I believed that we would see more design patents being applied for and more design patents litigated. Well, the U.S. Court of Appeals for the Federal Circuit (Fed. Cir.) must really want me to be right.

Click here to Download a Free Litigation E-Book

Bed Bath & Beyond had won a ruling from the district court (S.D.N.Y) against plaintiff and inventor Roger J. Hall, sua sponte nonetheless, that Hall had failed to properly state a claim (in his complaint) for design patent infringement under Federal Rule of Civil Procedure 12(b)(6). “[D]raw[ing] on its judicial experience and common sense,” the district court held that Hall’s patent infringement complaint didn’t contain “any allegations to show what aspects of the Tote Towel merit design patent protection, or how each Defendants has infringed the protected patent claim.” Rubbish – according to the Fed. Cir.

On January 25, the Fed. Cir. reinstated inventor Hall’s suit against Bed Bath & Beyond Inc. over his design patent, confirming that only a minimal threshold need be plead in a complaint to comply with the rules. The opinion confirms that in bringing a design patent case, the plaintiff need only comport with the standard notice requirements for pleading a complaint, rather than a point-by-point comparison of the patent and the accused design.

design patent consulting trial consulting intellectual property edtxMr. Hall’s patent is U.S. Design Patent D596,439, which is directed to a hooded towel.  The design shows towel with a creased portion that can be worn as a hood (right).  Hall calls the design a “tote towel.” In addition to confirming the low threshold for pleading a case of design patent infringement, the Fed. Cir. also confirmed the law of design patent infringement (as set forth in Egyptian Goddess, Inc. v. Swisa, Inc.) that infringement is based on the design as a whole rather than on discrete points of novelty.

The criterion for infringement is “if, in the eye of the ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other.”

Said Mitchell Shelowitz (of Pearl Cohen Zedek Latzer LLP), Hall’s counsel, “[t]he ruling is the most important decision on design patent law since the Egyptian Goddess ruling,” and "clearly sets forth an unequivocal pleading standard for design patents that will be the leading precedent on this issue going forward.” (credit Law360.com for the quote).

Said Michael Powell (of Baker Donelson Bearman Caldwell & Berkowitz PC), “If you get sued, you want to know what you’re being sued for, and with a utility patent, that can be pretty complicated," he said. "When you have a design patent, the claim is one claim, which is what's shown in the drawing.” (credit Law360.com for the quote).  Mr. Powell’s comment is compelling and falls in line with my belief that a design patent can be as valuable as a utility patent, but is easier to use at trial because of its simplicity.  This makes a design patent, all other things being equal, more valuable than a utility patent because a good litigator can more easily explain it, more easily demonstrate its overlap with the accused design, and, thus, more easily persuade a jury of its infringement.

design patent litigation consultants graphics patent delawareHere’s another drawing from Hall’s patent covering his design.

Consider again the criterion for infringement: if in the eyes of an ordinary observer, he/she may purchase the accused thing believing it to be the patented design – and take a look at the graphic Mr. Hall included in his complaint (below). Here is a picture of the accused towel (blue towel) and his design embodied in a reduction to practice (white towel).

design patent sdny trial graphics patentHow do you think a jury would react to such a graphic? How many words is this graphic worth in Hall’s complaint or in a subsequent summary judgment brief? This image truly shows the value of both design patents and their manner of proof – litigation graphics.

A jury need only be convinced that these two things look pretty similar. Combine that with a decent story, e.g., “I pitched my idea to the defendant in confidence, disclosed all my secret designs, but they said they weren’t interested – I was stunned when I found out they’d come out with this new product just months later – and look how much it looks like my drawings.” This case simply reinforces my opinion that we’re on the brink of a design patent renaissance.

Other patent litigation and intellectual property litigation consulting resources on A2L Consulting's site:

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Tags: Trial Graphics, Litigation Graphics, Litigation Consulting, Demonstrative Evidence, Patent Litigation, Design Patents, Apple v. Samsung

The Design Patent Renaissance Begins

Posted by Ryan Flax on Wed, Dec 19, 2012 @ 04:00 PM

design patent renaissance a2l litigation consultants patent litigatorby Ryan H. Flax, Esq.
(Former) Managing Director, Litigation Consulting
A2L Consulting

In September I predicted that a patent renaissance was on its way and that it would focus on U.S. design patents.  I saw how Apple wielded its design patents covering the look of its iPhone operating system interface against Samsung to the tune of over $1 billion and found it fairly compelling.

Today, President Obama signed the Patent Law Treaties Implementation Act, which, according to the White House, “amends Federal patent law to implement two treaties:  the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs, which would allow an applicant to obtain an international registration of an industrial design with a single application; and the Patent Law Treaty, which would harmonize and streamline various formal procedures related to patent applications and patents.”

This new law, which amends the America Invents Act – aka the new Patent Act - extends the term of design patents filed after today to 15 years (up from the current 14 years), allows U.S. patent applicants to file an international design application before entering the national stage in U.S. and foreign countries (just like regular patents), and establishes provisional rights for design patent holders to seek damages for pre-issuance infringement if the related international application published before the U.S. design patent was granted.

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So, we see some rather dramatic broadening of the property rights accorded a U.S. design patent holder.  This will only make design patents more attractive to U.S. innovators and international innovators seeking to market their wares and protect their product designs in the U.S.

As I discussed in my prior article, it appears that design patents can be as monetarily valuable as regular utility patents and, maybe, even more so because design patents lend themselves to proof of infringement in litigation. 

“Easy to explain” adds value. 

litigation consultants ryan flax patent litigator nyc dc texas chicagoIn court, to prove design patent infringement, you must persuade jurors that the accused infringer has copied your patented aesthetic design.  This is a far simpler task than teaching a jury about some obscure and complicated technology (that may provide only a minute fraction of the overall functionality of the infringing thing) and then persuading that jury that there is indeed infringement of a utility patent.

Furthermore, you won’t have to deal with the differences between direct and indirect infringement, doctrine of equivalents, or Section 112 (enablement and disclosure) issues at trial with a design patent.  These are just a few of the complicated issues of law intertwined in typical, utility patent litigation.

“Easy to build a story around” adds value.

It’s also easier to establish infringement of a design patent purely visually, which is likely how your jurors learn.  You may not even need to say a word to prove your infringement case if your litigation graphics are strong enough.  Your jurors will see for themselves how similar the infringing thing and your patented design are.  They’ll just “feel” like there’s infringement.

The entire process is streamlined for a plaintiff that owns a design patent.  You may not get $1 billion in damages every time you sue over a design patent, but it’s not impossible.  The renaissance is just beginning.  Let’s see how interesting it gets.

Click here to Download a Free Litigation E-Book

Other useful patent litigation related materials on A2L Consulting's site:

Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Trial Presentation, Litigation Consulting, Trial Consulting, Patent Litigation, Design Patents

A Patent Renaissance Is Coming, Spurred by Apple's Design Patent Litigation

Posted by Ryan Flax on Wed, Sep 26, 2012 @ 10:00 AM

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

I believe we may be on the verge of a revolution in patent law.  I spent 12 years practicing patent law, handling both patent litigation and non-litigation work (prosecution, opinions, licensing, counseling, etc.).  I’ve spent the last few weeks paying close attention to, examining, and writing about the just concluded Apple, Inc. v. Samsung Electronics Co. Ltd. trial and the litigation graphics used by both sides – and it’s changed the way I think about U.S. patents and their value.  There are two kinds of patents in the U.S.: utility patents and their step-brother, design patents.  Guess who’s now taking its place at center stage?

design patent litigation graphics appleThe Apple patents found infringed by Samsung were U.S. Utility Patent Numbers 7,469,381 (relating to the screen-bounce-back feature); 7,844,915 (relating to pinch-to-zoom); and 7,864,163 (relating to tap-to-zoom); and Design Patent Numbers D593,087 (design of iPhone back); D604,305 (iPhone home screen design, at right); and D618,677 (design of iPhone front). So, it was an even mix of design and utility patents.  This strikes me as a possible turning point in the history of U.S. patents.

What really interests me are the three design patents enforced and found infringed (and valid) in this case.  It is my sincere belief that if you polled patent attorneys in the United States, you’d find that 9 out of 10 feel (or, if they closely followed the Apple case – felt) that design patents were a bit of a joke.  Sure, design patents have been around for years and have been successfully enforced here and there, but never at this scale of public importance, impact and damages awarded.

Click Here to Download All New Patent Litigation eBook Now

The jury awarded Apple about $1.05 billion, which could be as much as tripled by the Court because the jury found that Samsung’s infringement was willful.  Now Apple is fighting for enhanced damages and a permanent ban on many of Samsung’s products.  There is no way to discern exactly what the contribution of any one of the infringed patents is to this total damages award because the verdict sheet does not provide for this level of detail, but we do know that the three design patents contributed significantly and were each found not invalid.  This presents the turning point I mentioned above.

patent litigation litigation graphics design patentsWhen you consider the goal associated with acquiring patents – to derive value – and the means by which patent holders typically do so – by enforcing those patents in court, the value of design patents becomes clear.  Design patents cover the way something looks and they are infringed when someone applies the patented design or a colorable imitation thereof without permission of the patent holder. 

In court, you must convince a jury of this infringement, which means you must persuade the jurors that the accused infringer has copied your design.  This is a far simpler task (e.g., “doesn’t this product look like this drawing?”) than teaching and persuading a jury that the flash memory circuit in the accused’s processor is the same as or equivalent to the “means for storing data” recited by the claim in your utility patent – get it?  “Easy to explain” adds value.  “Easy to build a story around” adds value.

In a process similar to a trademark or copyright case, juries are going to be called upon to look at a design (e.g., a laptop case, an automobile grill’s shape, a pair of yoga pants tapered leg) and decide whether it infringes a patent.  If you think there’s a need for mock jury testing and litigation graphics in utility patent infringement cases, you can bet their essential in a design patent infringement case – they were in the Apple v. Samsung case.  Your “story” of copying if you’re the patent holder or your “story” about independent design or the long history of similar design in the field if you’re the accused will have to be perfect to win.

In the Apple/Samsung case, a Samsung device called the Fascinate was found to infringe Apple’s ‘305 design patent.  Here’s an image of the Fascinate’s screen display and icons alongside a color image figure from Apple’s design patent:

iphone apple samsung design patent graphics consultants

One of the images above is Apple’s intellectual property (well, maybe both are) and the other is a competitor’s product.  What do you think?  Can you tell which is which?  Do you think the jury could?

Under the law as set forth by the U.S. Court of Appeals for the Federal Circuit in Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008), the test for design patent infringement is “whether an ordinary observer, familiar with the prior art, would be deceived into thinking that the accused design was the same as the patented design.”  This is a beautiful test if you’re a plaintiff’s attorney, particularly if you’re Apple’s attorneys.  How much easier is it to simply hold up two pictures in the form of litigation graphics and ask, “Don’t these look the same?”

litigation graphics demonstrative evidence design patent litigationTo win at trial, you have to get through to the people on the jury.  They need to understand you and your case.  In the typical patent case, this is no easy task, but when a design patent is at issue, the pictures can do much of the arguing for you.

This underscores the importance of telling a convincing and persuasive story in court.  Jurors want to reach the right result, so how do you help them do it?

Litigators must be effective at storytelling – jurors must be reached on an emotional level.  To do this, litigators should take time to develop effective litigation graphics and test their story and theme with mock jurors in preparation for trial.  With effective demonstrative evidence, also called litigation graphics, attorneys can teach and argue from their comfort-zone – by lecturing, but the carefully crafted litigation graphics will provide the jurors what they need to really understand what’s being argued and give them a chance to agree.

Most people (remember, jurors are people) are visual learners and do most of their “learning” by watching television or surfing the internet.  In court, litigators must play on this battlefield and with the appropriate weapons.  Design patents, in particular, lend themselves to this advanced style of litigating.

Another asset of the design patent is the type of damages available for infringement.  Unlike damages for infringing a utility patent, the total profits relating to the infringing product can be awarded to the patent holder.  That means, the entirety of infringement profits, rather than just the amount that could be reasonably attributed to the infringement, can be awarded.  In the Apple v. Samsung case, this was a staggering amount; it won’t always be a billion dollars.

I expect to see a dramatic increase in the number of design patents filed-for and in the number of design patents litigated over the next year and beyond.  Patent attorneys should rejoice in this new frontier!

Oh, and one more thing – in the images above, Apple’s patent drawing is the one on the left and Samsung’s product is on the right (or is it the other way?).


More resources related to intellectual property graphics and litigation graphics generally:

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Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Courtroom Presentations, Demonstrative Evidence, Patent Litigation, Storytelling, Design Patents, Apple v. Samsung

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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 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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