Philip Brooks' Patent Infringement Updates

Substantive Changes in Rule 26 on Track for Adoption in 2010

The following is excerpted from an article by Charles S. Fax, Litigation News Associate Editor, in the Winter 2010 print issue of the ABA Litigation News (public link to article appears defective, membership required to access):

Four changes are proposed for [adoption on December 1, 2010 for] Rule 26:

1. First, parties must disclose the topic on which an expert who is not subject to the formal report requirement will testify, plus a summary of the facts and opinions to be offered.
2. Second, the “data or other information” considered by an expert, rather than the “facts or data” considered, must be disclosed.
3. Third and fourth, work-product protection is extended to draft expert reports and expert-attorney communications (with three exceptions).

Wired!

The following is excerpted from the above-titled article by Jill Schachner Chanenerg from the print issue of the February 2010 issue of the ABA Journal:

There’s a battle about to break out on your computer screen. On the third floor of West’s sprawling corporate headquarters outside Minneapolis, a veritable army of professionals has been working for nearly five years to create a revamped Westlaw. They are changing everything from the interface users see on their PC screens to all the technology that makes it work behind the scenes.

Known as WestlawNext, the new platform will debut this month.

On its own suburban campus near Dayton, Ohio, LexisNexis—the other half of the duopoly that has ruled online legal research for almost 40 years (some call it “Wexis”)—is planning its own revamped platform. Referred to internally as New Lexis, it is slated to roll out publicly later this year on a date yet to be determined.

Both companies claim to be creating a legal research experience that will mimic the ease of use their customers have come to expect from the leading Internet search engine, Google.

The updated services come not a moment too soon, since the Mountain View, Calif.-based search engine has just gotten into the legal research business. In November, the company announced that its Scholar search engine now contains more than 80 years of U.S. case law from federal and state courts, as well as U.S. Supreme Court decisions dating back to 1791—all of it free.

Read the full article, including a discussion of additional tools: Bloomberg Law and Fastcase.

Woodshedding Witnesses

The ABA's Section of Litigation presents a live audio webcast and teleconference on Tuesday, February 9, 2010:

This session will discuss how far is too far when it comes to coaching witnesses for deposition or trial. Some have called coaching witnesses the law's "dirty little secret" because everyone does it, but no one gets caught. The recent case of Ibarra v. Baker, which upheld sanctions against attorneys for their role in improperly coaching witnesses prior to depositions, highlights the fact that sometimes lawyers do get caught, and more importantly, that attorneys must follow the rules of ethics whether they are caught or not.

Join our expert faculty as they discuss the limits Ibarra and other sanctions cases place on attorneys when preparing their witnesses for deposition or trial and the ethical rules applicable to such preparation. Peripheral issues such as how the rules apply to clients versus non clients and limitations on discussions with clients and witnesses during the deposition process will also be explored.

Faculty

• Teresa Rider Bult (moderator), Constangy, Brooks & Smith, LLP
• Daniel Small, Holland & Knight
• Dori Ann Hanswirth, Hogan & Hartson, LLP
• Kenneth M. Reiss, Northrop Grumman

More details and registration are available here.

Intellectual Property Contingency Consortium

I received an inquiry recently from a reader that was concerned about whether he was covering all of his legal options, but hesitant to retain an attorney.  I offered to provide him with the names of a few attorneys that handle patent infringement matters on contingency, but then yesterday I came across another possible resource.

The Intellectual Property Contingency Consortium is a group of law firms and licensing companies that assists clients - corporations and individuals - in the enforcement of patent, trademark, and copyright rights on a contingency basis.

From the West Coast to the East Coast, members of the Consortium can enforce your valuable intellectual property rights. The Consortium can scale attorney staffing up or down depending on the size of your litigation. The technical expertise of the Consortium members extends over a wide spectrum - from consumer goods to high technology.

If you would like a Consortium Law Firm Member to evaluate your case for possible representation, please email us at info@ipcontingency.com with a chronology of the events of your case, together with any relevant documents in pdf or Word format.

You should not consider a Consortium Law Firm Member to be representing you unless and until both you and the Consortium Law Firm(s) execute a written retention agreement for services.

They also offer links to companies that offer the following services:

• Damage Experts
• Liability Experts
• Prior Art Searchers
• Help in Identifying Potential Licensees & Infringers
• Litigation Tools for Winning Information

Access the Consortium and resource links here.  If you have worked with one of the Consortium law firms, please include a comment below that summarizes your experience.

Patent Pending

The following is excerpted from an article by Rachel M. Zahorsky that appeared in the January 2010 print issue of the ABA Journal:

A plan to help some federal judges wade deeper into the pool of patent cases is awaiting U.S. Senate approval—just like it has for two congressional sessions.

H.R. 628 was reintroduced by Rep. Darrell Issa, R-Calif., and Rep. Adam Schiff, D-Calif., in January 2009, and the House has passed it twice. It now sits in the Senate Judiciary Committee, where it has been since March.

The bill would authorize $5 million annually to establish a 10-year pilot program in at least five U.S. district courts that deal with the largest number of patent cases.

Read the full article and reader comments here.

See also an article titled, "Should The United States Designate Specialist Patent Trial Judges? An Empirical Analysis of H.R. 628 In Light of the English Experience and the Work of Professor Moore" by Donna M. Gitter in the May 15, 2009 issue of The Columbia Science and Technology Law Review. "This Article concludes that designation of specialist patent trial judges among the federal district court judiciary is likely to reduce the high appellate claim construction reversal rate, based upon an empirical analysis of the appellate claim construction reversal rate in England, which has specialized patent tribunals."

Secret Details of Litigation Financing Deal

The following is excerpted from a November, 3, 2009 article by Alison Frankel at The Am Law Litigation Daily:

One of the frustrations of reporting on the rise of third-party litigation financing funds...is the secrecy surrounding the practice. For the most part, litigation investment funds disclose neither the individual cases they've put money into nor the size of their investments in specific cases.

That lack of transparency makes Joe Mullin's latest Patent Litigation Weekly column at IP Law & Business a journalistic coup. Mullin found court records of an ongoing breach of contract case between a small, Texas-based network-security company called DeepNines and the $250 million IP litigation financing veteran Altitude Capital Partners, which backed DeepNines' patent infringement litigation against McAfee. It's a fascinating story and a truly rare glimpse into the mechanics of a third-party litigation financing deal.

As Mullin reports, in 2007 Altitude loaned DeepNines $8 million to fund its case against McAfee in the Eastern District of Texas. DeepNines' lawyers at Fish & Richardson won an $18 million jury verdict. Facing additional exposure, McAfee eventually agreed to a settlement that Mullin has calculated to be about $25 million.

Of that $25 million, guess how much DeepNines pocketed? Less than $1 million, according to Mullin. Fish & Richardson collected more than $11 million in hourly and contingent fees. Altitude got back its $8 million, plus 10 percent interest and a $700,000 "participation fee." The fund's total take, Mullin reports, was $10.8 million, a more than 30 percent return on its $8 million investment.

The story does not end there, read the full article here.

Judge Emphatically Denies Motion to Continue Markman Hearing in Hydro-Quebec v. Valence Case

Judge Sparks in the Hydro-Quebec v. Valence Technology, Inc. case (No. A-06-CA-111-SS) in the US District Court for the Western District of Texas, Austin Division issued the following order on October 14, 2009:

BE IT REMEMBERED on this day the Court reviewed the eight volumes of pleadings in the above-styled cause, and further noting that a stack of pleadings consisting of thousands of pages and arising over 14 inches above the undersigned's desk, received a Motion to Continue the Claim Construction Hearing Before the Special Master [#137] on November 2-3, 2009, and thereafter, enters the following:

The Motion to Continue is DENIED. This lawsuit was filed on February 14, 2006, almost three years ago. As a result of agreed extensions to answer different types of negotiations between the parties and the plaintiffs bringing in new parties, it was not possible to set an order scheduling a Markman hearing until September 9, 2006, when one was entered setting the Markman hearing for February 27, 2007. However, on January 10, 2007, this Court entered an order staying proceedings until July 10, 2007, at the request of all parties as there was a reconsideration of some of the patents involved in this lawsuit by the Patents Office. The stay was continued by order of July 18, 2007, at the request of the then-existing parties. Then after an exhaustive onslaught of pleadings, motions to dismiss, motions for summary judgment, and motions for partial summary judgment was filed and determined, ultimately, another order was entered for the Markman hearing for June 23, 2009. However, as a result of an agreement between the parties, it was reset for July 29, 2009. Thereafter, by agreement of all the parties, it was reset until November 2, 2009. The order setting the Markman hearing for this date was entered on July 28, 2009, over three months in advance of the hearing date. Now counsel for the plaintiffs requests another continuance because of scheduling commitments, and the answer is an emphatic "No."

The undersigned is blessed with one of the heaviest civil dockets in the country, including other patent cases. This case will proceed and will proceed with the Markman hearing on November 2-3, 2009. If counsel cannot arrange to attend, then the plaintiffs must obtain new counsel.

Thanks to the reader who provided the order (Download 144).

Daubert Challenges Of Financial Experts: Keys To Offering & Defending

National Constitution Center is hosting the above-titled audio conference on October 14, 2009.  The speaker for the program is Clifton Hutchinson, a partner in the Dallas office of at K&L Gates, where he specializes in complex litigation and scientific expert issues, and is a frequent speaker and author on expert evidence and Daubert challenges.  Mr. Hutchinson handles a wide variety of litigation matters, including significant intellectual property and trade secrets issues, probate and trust claims, products liability and toxic torts, among others.

SUMMARY

As Daubert financial testimony by financial experts has grown in importance, so too have efforts to challenge and disqualify experts. Do you know the most effective strategies and tactical issues related to the use of financial experts, and how to bring and defend Daubert motions against those experts? Join us for this 60-minute audio conference where you and your colleagues will discover:

• How to bring & defend against Daubert challenges to financial experts
• What financial models are appropriate and how they have been applied
• Solving key discovery issues when dealing with financial experts
• Laws governing admissibility of financial testimony

PROGRAM HIGHLIGHTS

Expert Discovery Issues & Qualifications Of The Financial Expert

• Communicating with financial experts: What must be disclosed & when?
• Keys to determining the scope of relevance in expert discovery requests
• What limitations arise from the expert's practical experience?
• What education and certifications are necessary or beneficial?

Critical Issues With The Financial Expert's Report

• Can counsel assist, and if so, when?
• When are drafts discoverable & how to effectively protect them
• How complete does the report need to be?

Critical Issues with the Expert's Assumptions and Methodology

• When can the expert rely on assumptions form clients or counsel?
• Which models or procedures are essential, which may be rejected?
• Key limitations on financial expert's reliance on staff
• When will courts question an expert's method?

More information and registration are available here.

Ten Ways That Attorneys Kill Their Experts

The American Bar Association Section of Family Law and the Center for Continuing Legal Education are sponsoring this teleconference and live audio webcast on September 16, 2009.

Program Description

Expert testimony is often a key component of evidence at trial. An expert, if used effectively, can be persuasive in a manner that enables the trier of fact to reach the correct conclusions. Most seasoned trial attorneys have had at least one experience in which an expert "crashed and burned" at trial. Sometimes it is the expert's lack of skill, experience or preparation that gives rise to the disaster. Other times, however, the expert's ineffectiveness is a direct result of factors and dynamics controllable by counsel. In this session we will identify common events that neutralize otherwise professionally competent experts and explore how to prevent them.

Faculty

• Peter M. Walzer (Moderator) is the founding partner of the Southern California law firm Walzer & Melcher LLP.

• Michael Kaplan is principal of Kaplan Abraham Burkert Associates, Forensic Valuation Consultants and senior advisor to Freeman & Mills, Inc.
• Carlton R. Marcyan is a senior partner and Executive Committee Chair of the firm of Schiller DuCanto & Fleck LLP, the largest matrimonial law firm in the Nation.

More details and registration are available here.

ABA Kicks Off Legal Rebels Project

Yesterday, August 25, 2009, Edward A. Adams wrote:

Our Legal Rebels project—profiling 50 of the profession’s leading innovators—gets under way today. (Learn more about why we launched the project and what we hope to accomplish at www.LegalRebels.com/about.)

We’ve posted profiles of our first seven Rebels, along with videos, audio slideshows about the changes they’re trying to make in the practice of law. We’ll be adding at least three new profiles to this site every week until Thanksgiving.

You can also directly participate in the project:

• Sign the Rebels Manifesto, which was written by lawyers nationwide.

• Ride shotgun on our two-week Rebels Tour, kicking off Sept. 14.

• Stay connected to the project through your favorite social media tool.

• Check out what others are saying about Legal Rebels on Twitter.

• Buy the Rebels T-shirt featured on our September cover, a mouse pad, or even a Rebels skateboard.

• Nominate someone you think we should profile.

Go here for the links and to learn more.