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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

What Does A Case-Winning Trial Graphic Look Like?

Posted by Ryan Flax on Fri, Dec 18, 2015 @ 12:57 PM

itc-litigation-graphics-wiper-blades-patentby Ryan H. Flax
(Former) Managing Director, Litigation Consulting
A2L Consulting

Sometimes a trial graphic really does make the difference.

We can’t say that in each case we’re involved in, a trial graphic likely won the case or played a major role in the win. We support some of the best lawyers in the country and they use the tools we provide to do what they do at trial. Usually we’re there to make sure they do the best they can do, but sometimes we provide that key image or animation (and the associated consulting input) that really clicks with a judge or jury and enables the win. Here’s a recent example.

“Insert, Pivot, and Lock”

This was a patent infringement case before the U.S. International Trade Commission concerning the connection mechanism between automobile windshield wiper blades and wiper arms – that little piece of plastic that might as well be a Rubik’s cube for most of us almost every time we need to change our wiper blades. Our client held several patents covering a very special wiper blade connector that was being ripped off by a competitor. To win at trial (final hearing at the ITC), we had to get the judge to agree to our way of understanding the rather verbose patent claim language covering what was a simple, although elegant, invention.

patent-claim-language-trial-graphic.jpgHere’s an example of the claim language captured as an image from the patent:

I’d say that this is a challenging read, whether you’re a judge, a patent attorney, or a fast food restaurant cashier. It’s pretty technically complex and rather long. Definitely “lawyery.” No doubt that it satisfies the legal requirements for claim language, but it almost takes one’s breath away.

We needed to distill this language and the concepts behind it into something that was easily understandable, but we couldn’t be over-argumentative about it. Upon reading this claim language with the benefit of the rest of the patent’s disclosure and the reader’s own common sense, the invention had to seem simple (but elegant).

With that understanding, how do you do it?

After a good deal of brainstorming with the litigation team, we found that the core of the invention was the configuration of elements that allows a user to join a wiper blade to a wiper arm by simply inserting the end of the wiper arm into the connector and then pivoting the two parts together so that they securely lock with one another. Easy enough to say, but it wasn’t so easy to actually identify this concept and explain it with any level of simplicity and specificity and persuasiveness.

After a good deal more brainstorming and whiteboard drawing, we developed a graphic design that really explained it. It was much easier to grasp the inventive concept and more convincing to show it visually, as follows:

With the animation above, we boiled down the claim language into something understandable by anyone, tangible, and acceptable for the judge. We can SEE it; he could see it. It makes perfect sense. The invention (and the infringing products) must work this way – of course.

It may look exceedingly simple, but I assure you it is not. It was not so simple to conceive as a solution to the obstacles in the case. It was not so simple to design conceptually. And it was not so simple to develop the 2D animation (all in Microsoft PowerPoint, I might add). It all works and worked perfectly.

After we showed this animation to the judge during the claim construction hearing, and after the accompanying argument, he eventually began reciting the tag-line of “insert, pivot, and lock” himself in addressing questions to counsel. A pretty good result to that point.

The results of the case were even better.

In the public version of Judge Pender’s Initial Determination (at 32), when discussing the claim construction, he titles one section “The End Portion of the Wiper Arm and the Connecting Element Can Pivot with respect to Each Other About the First Location Until Said Securing Portion Secures the Second Part of the End Portion of the Wiper Arm.” This illustrates that he really gets it. He doesn’t mention the insertion part here, but this part of his final opinion is devoted to the concept that after that insertion the two wiper system components pivot together to lock securely, just as the demonstrative shows. It is clear that the accused devices do this and equally clear that the prior art does not, so the judge’s recognition of this concept is critical to both making the infringement case and overcoming the opposing invalidity case.

In the infringement part of his Initial Determination (at 36 et seq.), Judge Pender identifies that the accused devices are assembled via a “simple pivoting motion.” Thus, in his finding, they infringe the patent’s claims. The claims cover “insert, pivot, and lock.” The covered product works by “insert[ing], pivot[ing], and lock[ing].” And the accused devices infringe because they, too, “insert, pivot, and lock.”

Winner!

Moreover, the animation above does more than establish that the wiper blades are connected by inserting, pivoting, and locking. It shows that this motion of locking can be engaged from either side of the wiper blade, that is, in a “toe-to-heel” or in a “heel-to-toe” insertion and pivoting. This was also crucial to establishing infringement by the accused devices (see Initial Determination at 40 et seq.). Judge Pender found that the respondent’s arguments that they couldn’t infringe because their products connected in a backwards sort of way compared to the complainants’ devices were just plainly erroneous.

The result of all these favorable events was a complete victory for our client. The judge found a violation of Section 337 and recommended that the commission issue an exclusion order against the opposing party, which will stop importation of the accused, infringing wiper blade products.

It is not my intention to minimize in any way the wonderful advocacy by our client in this matter. It was truly outstanding. I believe that counsel’s trial strategy combined with the effective demonstrative evidence really sealed the deal here. Seeing, in this case, was believing.

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:

patent litigation demonstrative evidence

Tags: Patent Tutorial, Trial Graphics, Litigation Graphics, Demonstrative Evidence, Patent Litigation, Advocacy Graphics, PowerPoint, Persuasive Graphics, ITC

5 Tips For Inter Partes Review Hearing Presentations at the PTO

Posted by Ryan Flax on Thu, Jan 29, 2015 @ 03:57 PM

 

inter-partes-review-presentation-graphics-patent-office-ptoby Ryan H. Flax
(Former) Managing Director, Litigation Consulting
A2L Consulting

Inter Partes Review, or IPR, has drastically changed the way we litigate patent infringement in the U.S. In big-budget patent cases, it is now almost inevitable that an IPR will be requested (and likely granted). The process is supposed to take no longer than a year to complete, but under current case law that’s a year’s delay in the district court case. Moreover, the odds are that any patent that enters IPR will not leave it unscathed.

So, whether you need to win an IPR to save your client’s patent’s claims or to insure your client against infringement allegations, the bottom line is that it’s critically important. And, you need to win.

Here are what I believe to be five important tips for improving your chances of victory once you get to the oral argument stage at the end of an IPR. At that point, you’ll need to convince Administrative Patent Judges that you’re the most reasonable person in the room and what you’ve said throughout the IPR “just makes sense.”

alexandria-inter-partes-review-presentation-graphics-patent-office-pto1. Always Support Your Argument With Visuals

As in any situation where you need to be persuasive in a presentation, there are steps you must take to be as persuasive as possible. The use of visual support for your argument is essential. Studies show with scientific certainty that it will make you more persuasive, all things being equal.

Moreover, other studies establish that it does you no good to merely make some PowerPoint slides and show them just “when you need them.” It has been confirmed that you must support the entirety of your oral argument with visuals in an immersive way – always give your audience something to see while you speak. This is the only presentation style that provides a significant improvement in persuasiveness over pure oral argument alone.

The PTAB itself (read the APJs that will be hearing your oral argument) wants you to use visual support for your argument and provides you the means to do so. As explained at the USPTO website:

[a]t the Alexandria hearing rooms, the Board has an easel, an Elmo projector, a laptop projector, and a screen, which may be requested for oral arguments. For Microsoft PowerPoint and other computer-based presentations, the party must provide its own laptop. Animation and video demonstratives cannot be presented at a hearing without specific prior authorization. The hearing rooms do not have Internet access capabilities – all information must be stored on the party’s laptop (e.g., a hard drive, flash drive, or CD).

So, use the tools available to you and follow these rules and get the permissions you need. But, the bottom line is that you must do more than explain why the claims at issue are or are not patentable – you must show the judges why it’s so and do so in an engaging way.

2. Keep Your PowerPoint Presentation Crisp And Clean

IPR-patent-litigation-crisp-clean-presentationIn both your argument and your visual support thereof, get right to the point. The Board doesn’t want any hyperbole, nonsense, or fluff.

The USPTO guidelines request that counsel begin their “conversation” with the Board with the critical issues, not extensive background. So, first explain the main reasons (each of them – I always suggest having 3) why you should win and show these reasons in your first slide. This presentation style sets a clean agenda for your oral argument and one you can return to as you move through your presentation. The APJs will know what to expect from you and will be able to work in their questions a little more on your schedule this way – if they have questions they brought to the hearing they can ask them at the appropriate time if they know you’re going to hit on that subject. This helps you make the points you want to make with less interruption.

You want to make the APJs’ jobs easier for them. Help them understand the technology as you see it, the facts as you see them, the claim language as you understand it, and the prior art as you know it. This help to the Board will come in the form of pinpointing and highlighting the special things about the technology and claim language that might not be clear enough from the papers alone. Point out the things, and do so visually, that seem to have been or might be overlooked by the APJs.

patent litigation webinar free litigation graphics demonstrative Use graphics to establish why your interpretation of things is the MOST REASONABLE one. When what you’re saying and showing can only be responded to with, “that seems to make sense,” you’re on the right track. The first step here is to separate the wheat from the chaff and made things more, not less, clear.

Likewise, your graphics should be clear and unembellished. Make them easy to see, easy to read, easy to interpret, and memorable. Don’t use unnecessary animations – control the urge to go “PowerPoint crazy.” But make your graphics look professional and make them well composed.

3. Simplify The Complex

patent-trademark-office-alexandria-litigation-trial-support-graphicsTechnology is, by its nature, complicated. Throw in claim language written by a patent prosecutor with little time and a penchant for using less than standard-everyday-English, a thick stack of prior art, and the nuances of Sections 102 and 103 and you’ve got the recipe for confusion. APJs are human beings and, so, they will appreciate you distilling the facts, science, and law for them into a more easily digestible pill. Doing so will make you more persuasive.

Always ask yourself the question, “why are we really here” or “what is this really about” when beginning to develop your oral argument and accompanying graphics. If you can explain in words and images what claim language really means or what a prior art references fails to disclose and why, simply and clearly, you are certainly ahead of the game.

This is not so easy and many patent attorneys find it difficult to simplify the complex. Using graphics and, actually, planning the development of the graphics you’ll use, makes this job easier. You’ll have to determine how to economically tell your story in images and doing that will help you cull the key facts and storylines from fluff and extraneous details.

4. Minimize Text

Beyond helping litigation counsel develop their case so they are the “most reasonable person in the room” come time for argument, my most important job is often forcing attorneys to reduce the amount of text they want to include in their visual support for oral argument. A text-heavy PowerPoint presentation is a barrier to connecting with your audience, a barrier to good communication, and a barrier to persuasiveness.

pto-alexandria-litigation-trial-support-graphicsIf you are asking (aka, forcing) your judges to read your argument while you’re also making it orally, you’re not connecting with them on a human level and you’re not engaging them. You want your hearing graphics to support what you’re saying and to make it more readily understandable and memorable. You don’t need or want to be redundant.

Incorporating too much text in your visual presentation introduces several potential problems. It increases the chance that you’ll use PowerPoint as a crutch and will base what you say on what you’ve written into your slides. Besides being boring, this presents another problem – that of the “redundancy effect,” where you simultaneously say what you show in text on the slide and thereby turn off your audience’s brains. Finally, as much as most attorneys love them, having too much text probably means you’ve includes lots of bullet-point lists in your presentation, which is a presentation killer for many reasons.

Use your opportunity to show graphics to pinpoint the important evidence for the Board and highlight language and facts that you want to stand out. Compare the language of your claims to the disclosure or non-disclosure of the prior art visually. Don’t simply show your briefing in PowerPoint form.

best of the national law journal A2L Consulting

5. Develop A Related, But Different Leave-Behind Document

If you’ve followed my tips above, you’re using a graphics presentation, but you’ve significantly reduced the text content of your graphics and doing so has probably caused you some heartburn. Do not dismay. My last suggestion is to save all that text you wanted to put into your PowerPoint slides, e.g., your oral argument script, and combine it with the graphics you ultimately did use in the hearing. This will be your hand-out and leave-behind for the Board.

As discussed at the USPTO website:

For AIA trials, unless otherwise directed, demonstrative exhibits must be served on opposing counsel at least five business days before the oral argument and a copy served electronically at the Board no later than the time of the oral argument. 37 CFR § 42.70(b).
***
Parties are advised to bear in mind that some judges may appear remotely from other locations. It is incumbent on the parties to ensure that any demonstratives used during an oral hearing are visible and available to all judges on the panel. For example, demonstrative exhibits displayed on an easel or via a projector may not be able to be seen by judges participating remotely. Those remote judges will refer to the electronic copy of the demonstrative exhibit provided by the party in advance or to a copy of the relevant document as it appears in the record. As such, parties should also clearly identify during the oral hearing any demonstrative exhibit to which they are referring to enable all judges participating in the hearing to follow along with the argument being presented.

patent-litigation-inter-parties-review-ptoAs the USPTO suggests, make sure all the judges have access to your demonstratives. This leave-behind is a good way to do that. It will combine the memorable and engaging graphics you used at your oral argument with what is essentially that same, scripted argument (uninterrupted by questions) in the notes associated with those graphics. Package it nicely so the APJs can refer back to your demonstratives and recall how they relate to your argument (the document can also easily be in PDF format to email remote judges).

Other patent litigation-related resources on A2L Consulting's site:

patent litigation toolkit 3rd edition free ebook

Tags: Patent Tutorial, Trial Graphics, Litigation Graphics, Demonstrative Evidence, Patent Litigation, PowerPoint, PTO, Alexandria, Inter Partes Review

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

What Does Litigation Animation Cost? (Includes Animation Examples)

Posted by Ken Lopez on Fri, Nov 8, 2013 @ 03:20 PM

 

litigation animation cost courtroom consultantsby Ken Lopez
Founder/CEO
A2L Consulting

Our firm, A2L Consulting, is a national litigation consulting firm with a wide range of trial-focused services from jury consulting to mock trials to trial graphics to courtroom trial technology services. However, most people don't know that I founded A2L 18 years ago after I had taught myself computer animation while in law school.

To me, it made sense to try to fit these two subjects together. In retrospect it was quite smart. At the time, though, my friends and family looked at me with a somewhat perplexed gaze.

You see, animation was just emerging on the scene with movies like Jurassic Park and Toy Story. In the courtroom the first litigation animations were being used in a handful of cases in the late 1980s and early 1990s.

Back then, people would quote animation costs at as high as $1,000 per finished second of animation. These numbers seem preposterous today, as production costs have plummeted and prices more along the lines of $1,000 per finished minute are not uncommon.

However not all litigation animations are created equal. Indeed there are many types and there is a flavor for every case and every budget.

In a previous article I described the types of litigation animation used typically in the courtroom. To summarize, they are PowerPoint animation, 2-D animation, and 3-D animation. There are several variants of 2-D animation, and one looks convincingly similar to 3-D animation.

There are a variety of tools used to produce animation from PowerPoint on a laptop to Flash on a desktop PC or to Maya on a workstation. Not only do the costs of hardware and software vary dramatically but the kind of people who produce these animations vary in their availability and demand.

Suffice it to say that PowerPoint animators are the most readily available and can work on the least expensive hardware-software combination. At the other end of the spectrum are 3-D animators. Good ones are few and far between, and they require high-end software and hardware and lots of experience to produce good work.

Not only is there variability in cost of production, but there is significant variability in the time required to produce a finished product. Some PowerPoint animations can be done in a few minutes and may be all you need for your case. Other 3-D animations may require weeks or months to develop a finished product for trial.

Below is a guideline for what a trial team should expect to pay for three types of typical litigation animation projects.

1. Five minutes of a PowerPoint animation-style exhibit with average complexity. For something along these lines, I would expect to invest between $5,000 and $15,000, with the variability explained by the amount of complexity and the amount of back-and-forth. Here is an example of project like this where video playback patents had to be explained at trial:

Below is an example of another PowerPoint-style animation used in an ITC case involving ground fault circuit interrupters.



2. Ten minutes of animation built from drawings or schematics
, perhaps of an environmental spill or plume, an architectural drawing or a bringing a patent drawing to life as we explained in this article. For this project, which likely requires more technical skill in the use of a product like Adobe After Effects or perhaps Flash, I would expect to invest between $10,000 and $35,000. Below is an animation of toner tubes from a patent case. The models were built from existing CAD technical drawings which sometimes saves considerable time and money on litigation animation costs.

Below is an example of 2-D animation used to explain how a power plant works and give a sense of its scale:



3. A 15-minute 3-D animation of a complex subject
like a highly technical patent, a structure collapse or perhaps a complex aviation accident. Assuming the animation was still considered demonstrative in nature rather than a simulation, which requires an entirely different level of complexity, I would expect to invest between $40,000 and $150,000 for this type of product. Below is an example of a 3-D animation used in a patent trial that resulted in the 6th largest verdict in patent litigation history:

Below is another 3-D animation used in a mediation for an environmental insurance coverage dispute:

In the 3-D litigation animation example below, the layout of a coal-fired power plant is explored:

Of course all of these costs are highly variable but they provide broad guidance for what to expect and how to look at your projects as you think about trial. Below are some additional materials related to animation for use at trial.

using litigation graphics courtroom to persuade trial graphics a2l consulting

Tags: Patent Tutorial, Trial Graphics, Litigation Graphics, Courtroom Presentations, Litigation Consulting, Litigation Technology, Demonstrative Evidence, Animation, Patent Litigation

[New Patent E-Book Release] Patent Litigation Toolkit - 3rd Edition

Posted by Ken Lopez on Fri, Oct 25, 2013 @ 11:00 AM

 

patent litigation toolkit ebook 3rd edition a2l consultingby Ken Lopez
Founder/CEO
A2L Consulting

In today’s litigation world, no subject of litigation is more important or carries with it more money at stake than patent law. Because of the rise of high-tech industry and the Internet, intellectual property has never been worth more to its owners. High-profile cases such as Apple v. Samsung are just the beginning. Cases valued in the hundreds of millions or even the billions are common, and patent litigation case filings are rising faster than any other area of the law.

Lawyers in these cases must develop an astonishing degree of knowledge of the industry and of the complex patents involved in order to try them successfully. Yet in a jury trial, even one that involves arcane issues of science and engineering, the litigator can’t lose the common touch and can’t lose sight of the need to persuade ordinary people of the rightness of his or her cause, using ordinary language.

This paradox makes the trial lawyer’s task all the more difficult in a patent case. You simply must understand the technology, yet you can’t get lost in it. Whether jury trials are even appropriate for these cases is a good question, but for now we need not ask it, since jury trials are being used in them.

Accordingly, we at A2L have put together our newest ebook – the Patent Litigation Toolkit, 3rd Edition. At 200 pages, this version of the book is more than twice as large as 2012's 2nd edition. Over the past 18 years at A2L, about 50 percent of our work has been in the patent litigation field. Simply, this type of information is not assembled anywhere else and is incredibly valuable to a patent litigator.

Here, the busy trial lawyer will read fascinating and up-to-date articles on topics such as:

  • 11 Tips for Winning at Your Markman Hearings
  • Surprises in Going from IP Litigator to Litigation Consultant
  • 21 Ingenious Ways to Research Your Judge
  • Introducing Mock Markman Hearings for Patent Litigation
  • Teaching Science to a Jury: A Trial Consulting Challenge
  • 7 Ways to Draft a Better Opening Statement
  • Demonstrative Evidence & Storytelling: Lessons from Apple v. Samsung
  • Explaining Patent Claim Language in Patent Litigation
  • Explaining a Complicated Process Using Trial Graphics
  • Memorable Markman Exhibits and Patent Litigation Trial Graphics
  • 15 Patent Infringement Graphics: Illustration + PowerPoint                     
  • Trial Exhibits: Antitrust, Pharmaceuticals & Hatch-Waxman Litigation

To download a free copy, just click here.

patent litigation toolkit 3rd edition free ebook

Tags: Patent Tutorial, Markman Hearings, Patent Litigation

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.

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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.

Consider registering for a free Oct 16 patent litigation webinar on - click here to learn more
 

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

[Free Webinar] Visual Persuasion Techniques in Patent Litigation

Posted by Ryan Flax on Wed, Oct 9, 2013 @ 04:32 PM


patent litigation persuasion webinarby Ryan H. Flax, Esq.
(Former) Managing Director, Litigation Consulting
A2L Consulting

Next week, I'll be presenting a free webinar called Visual Persuasion Techniques in Patent Litigation. It's free to register, and I would enjoy it if you attended. While my audience will be primarily patent litigators, anyone who presents complex technical information in the courtroom will benefit. Here’s why.

I am a patent litigator by trade. I helped my former law firm, Dickstein Shapiro, win more than $1 billion in jury verdicts in my 13 years there. In that time, I learned a lot of lessons about how best to present complex material to a lay audience. When I joined A2L almost two years ago, I was a bit shocked by how other firms prepared to try cases, as I wrote shortly after I joined in this article.

While my partners and I had always prepared a very long time in advance of trial, many trial teams from top 200 law firms prepare at the last minute. I'm sure it’s for good reason, and it’s probably driven by client budget concerns most of the time, but it was surprising to me. In these past two years I have adapted to both styles and I have seen how they both work. 

What is common to trial teams who prepare well in advance and those who prepare at the 11th hour is a desire to simplify the case. Simplification is an odd process that follows a circuitous path. As I noted in a co-authored article with some great litigators from Foley & Lardner, simplification is possibly the most valuable thing a trial attorney can do and yet it may be the very thing least appreciated by the client.

In seeking to simplify a case, litigation graphics are an essential tool. What is surprising is how they prefer to see their graphics delivered. The science of what works in litigation graphics is full of surprises. It is all pretty confusing until someone walks you through the science.

Creating litigation graphics that work is not as simple as cutting and pasting your argument outline into some PowerPoint slides. Rather, it’s a process of figuring out what to say and then figuring out how to show that in the most understandable way possible.

Designers of all types, whether they are architects, interior designers, web designers or litigation artists, often start with reference material when they begin their work. These are often pictures of award-winning designs in their field. In this spirit, I will share some of my favorite litigation graphics used here at A2L recently. There is a lot that can be learned by looking at a few examples.

In the webinar, I will discuss some unusual services I have been a part of developing, including Mock-Markman exercises, The Micro-Mock, the Mock Federal Circuit Hearing, and more. Each of these events, plus others like technology tutorials and trials call for unique preparation.

Register for the complimentary webinar by clicking here.

 

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Tags: Patent Tutorial, Markman Hearings, Trial Graphics, Litigation Graphics, Litigation Consulting, Patent Litigation

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

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

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Authors

KenLopez resized 152

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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