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Fractus, S.A. Patent Litigation
May 18, 2009
East Texas Patent Litigation and Perkins Coie Experience
1. Litigating in the Eastern District of Texas
2. Litigating before Judge Leonard Davis
3. Budget and Risk-Sharing
4. Perkins Coie and its Patent Litigation Practice
Topics
The Eastern District of Texas
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Defendants can win, but the obstacles are greater than in most other venues;
The juries are very pro-plaintiff; The juries like patentees, and dislike large corporations;
The juries are politically conservative, but willing to grant large damages – Tyler jurors especially are familiar with royalties, and are comfortable with large royalties;
Tyler area jurors have extreme pride in their community.
Eastern District of Texas in Tyler
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The District is extremely pro-discovery – virtually everything the plaintiff wants will have to be provided;
Procedural rules will be interpreted to favor the plaintiff; Especially rules regarding summary judgment, in limine
motions, and provision of the parties contentions;
The District is no longer a “rocket docket,” as its popularity has clogged the District with patent cases.
Eastern District of Texas in Tyler
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Judge Davis
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Judge Davis is pro-plaintiff, but nevertheless a good, honest judge;
He is an ex-plaintiff’s contingent fee lawyer at Potter Minton in Tyler;
He is intelligent and very experienced in patent cases, more so than all but a handful of Federal judges around the country;
He rewards quality lawyering, and punishes attorneys who are unprepared or unskilled;
He has a slow docket that is filled with large patent cases;
He is radically pro-discovery;
While in active practice as a plaintiffi’s lawyer, he concluded that defendants, especially large corporations, frequently fail to comply with basic discovery obligations;
He has a conservative approach to claim construction, emphasizing “plain meaning;”
Judge Davis
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He conducts extremely short trials – 4 days are assumed appropriate for every trial;
He is pleasant and courteous, at least to well-prepared lawyers;
He refers much of his pre-trial work to Magistrate Judge Love;
He exerts extreme pressure on the parties to settle, and will order multiple mediations;
He is slow to rule on most motions, especially summary judgment:
Summary judgment motions will not be considered until trial is near;
He never stays litigation for a pending reexamination;
Judge Davis
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His in limine rulings are usually pro-plaintiff;
Much evidence that is usually considered relevant to a defense is excluded;
He requires extensive cooperation between co-defendants, especially by sharing experts, arguments, technology tutorials and other presentations.
Judge Davis
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Trying a Case in Tyler, Texas
The defense must be simple, straight-forward, and expressed in terms that lay jurors easily understand.
No more than two defenses should be presented; one is better.
Good witnesses are crucial, especially good experts who are adept at clear explanations.
The trial will be conducted at a lightning pace, so brevity while being clear is critical.
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Trial Themes Non-infringement is likely the best defense in
this circumstance;
The defense should be built around a “sweat of the brow” theme, relying upon the remarkable HTC story—10 years from founding to one of world's leading technology companies;
HTC must be demonstrated to be an innovator;
HTC must be shown to respect the patents of others.
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Plan for Winning
Develop strong and understandable non-infringement defenses;
Try to cooperate with co-defendants to reduce expenses;
Re-exam as way to get 2nd bite on invalidity; Retain great experts; Obtain the cooperation of the true innovator
in this field, Fractal Antenna Systems (an American Company).
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Budget and Risk Sharing
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Litigation Budget: Q2' 09 thru trial
Engagement through trial: $2.5– $3M
Reflects 7% discount off our standard rates, which we are confident are lower than California or East Coast-based firms
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Risk-Sharing Perkins has a track record of winning
That is why Intel, Microsoft, Nintendo, Google, & T-Mobile hire us
Last win was in March by proposed team leaders Jerry Riedinger and Mike Broaddus for defendant Nintendo in plaintiff friendly E.D. Texas
We put our money where our mouth is We would welcome discussing risk-sharing and
success bonuses
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Perkins Coie and its Patent Litigation Practice
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Perkins Is the Right Firm For This Case
We know wireless technology, prior art, and expert witnesses
We know HTC, its culture, legal team, documents, engineers, etc.
Our rates are 10-20% lower than other national firms' rates, and we're willing to share the risks
No client is more important to Perkins than HTC
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Perkins Coie Overview 700 lawyers in 15 offices
Full service firm focused on intellectual property, high stakes litigation, and corporate finance
Leader in the representation of technology companies
AmLaw 100 Firm
One of FORTUNE magazine's"100 Best Companies to Work For" seven years in a row
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Office Locations Anchorage Beijing Bellevue Boise Chicago Denver Los Angeles Madison Menlo Park Phoenix Portland San Francisco Seattle Shanghai Washington,
D.C.
Anchorage
Beijing
Shanghai
Bellevue
Boise
ChicagoDenver
Los Angeles
Menlo ParkPhoenix
Portland
San Francisco
Washington, D.C.
SeattleMadison
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Patent Litigation Practice 85 IP litigators firmwide, including 65 patent
litigators in 8 offices
50 patent prosecutors for technical support
Ranked among the top 20 largest IP practices by Managing Intellectual Property
#9 nationally for patent litigation filings by IP Law360
#16 nationally for number of patent litigation cases by IP Law & Business
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Locations of Perkins Coie Patent Litigators, Trialsand Additional Litigation
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Representative Patent Litigation Clients
Google HTC Intel Intersil Maxim Integrated Products Microchip Technology Micron Technology Microsoft
Bolded relate to wireless telecom work
Monolithic Power Systems
Mylan Pharma Nintendo Semitool SonoSite STMicro Taser T-Mobile.
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Fractus, S.A. Patent Litigation
May 18, 2009
East Texas Patent Litigation and Perkins Coie Experience
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