Patent Litigation

Retaining Your Patent Litigation Attorney

Litigation is essentially the acting out of a strategy from the law firm “war room”. The difference in patent litigation is that the jury members called to give a verdict will be at risk of not understanding the finer points and testimony, if the effort is not made to ensure:

  • Presiding judge permits jury note taking throughout trial
  • Opposing counsel does not eliminate or refuse jurors deemed friendly to your case
  • Expert Witness can elaborate on details without losing jurors’ attention

Patent Trial Duties

When seeking representation one of the first things to determine is your attorney’s appearance and attitude. Are they personable? Also review his success record. He will be on stage before a jury eventually, and you cannot afford to have them develop animosity for your attorney or resentment if he talks down to them. He also needs to be able to explain complicated patent details and infringements clearly and concisely for the comprehension of each juror.

Your attorney will have a plan that he cherishes as the premier plan for success in litigation. Comply with his directions if you have determined he is concise, easy to understand and personable.

Selections Your Attorney Makes for You

There are determinations your attorney will need to select for you that can make or break your case:

  • Jury Selection – This is a misnomer, as the jurists are not selected as much as they are actually “weeded” out from the ones who will sit on the panel. It is imperative that the attorney find friendly faces and eyes.
  • Getting permission from the judge presiding for jurors to take notes throughout the trial.
  • Witness Selection, both Expert Witness and Material Witness – Your attorney must select the most knowledgeable and forthright speaking Expert to testify without going over the heads of the jury. He must also question or depose an important Material Witness to interactions requiring sworn testimony.
  • Prepare acceptable Instructions to the Jury. Wording of jury instructions can confound or illuminate the minds of the jury, and your attorney must have his unique presentation and wording that will be approved by the judge and clearly understood by the jury. Trials have been hung or lost due to clumsy jury instructions.

Comply With and Trust Your Counsel

After retaining your attorney, comply with his requests and do not second guess him. He represents success or failure in your legal battle.

Appellate Practice

Eighth Circuit Reverses Judgment on Farm Bureau Vandalism Policy

Wilcox owned a rental property insured by Farm Bureau for fire and other perils. The tenants moved out in June 2004. In November 2004, Wilcox discovered a running faucet which caused extensive damage, and he submitted a claim. Farm Bureau filed this action seeking a declaration that coverage did not apply.

In Minnesota, fire insurance policies must provide a statutory minimum coverage. The insurer is not liable if the premises were vacant for 60 days or more. See Minn. Stat. § 65A.01, subd. 3. Insurers are able to provide more coverage if they want. Id. The Farm Bureau policy at issue had two provisions affecting vacancy. One provided that coverage was excluded for vandalism or malicious mischief if the premises were vacant for 30 days or more (“Vandalism Provision”). The other provided that, unless limited elsewhere in the policy, no coverage would apply to premises that were vacant for 180 days or more (“Vacancy Provision”).

Wilcox only raised the Vandalism Provision to the district court; he did not find the Vacancy Provision. The district court held that the 60-day vacancy provision of the Minnesota statute applied and granted summary judgment to Farm Bureau. In an uncharacteristic move, Wilcox prevailed by raising a new argument on appeal.

Trademark Claims

Wells Fargo Wins TRO Against Former Employee for Disclosing Trade Secrets

Wells Fargo hired Bengtson in their wealth management department. Part of the employment contract contained a non-solicitation and a nondisclosure agreement. Bengtson left Wells Fargo to join Merrill Lynch. He immediately began soliciting Wells Fargo clients and disclosing information to Merrill Lynch. Wells Fargo brought suit for breach of contract and trade secret misappropriation.

The court had no trouble granting the TRO, but its take on Bengtson’s defense is interesting. Bengtson argued that Wells Fargo should be barred by the doctrine of unclean hands because they encouraged him to bring over client lists when they hired him from Piper Jaffray. The court rejected this argument, holding that Wells Fargo must have been guilty of unconscionable conduct in their employment contract with Bengtson for unclean hands to apply.

Appellate Practice

Arkansas Supreme Court Evades Review of Civil Justice Reform Act

Shipp was involved in a car wreck with Franklin and filed a lawsuit against him. Franklin filed a third-party complaint against Sanders, and Shipp amended her complaint to include Sanders as a defendant. Prior to trial, Shipp settled with Sanders. The remainder of the case proceeded to trial, with the jury finding Sanders 100% responsible for the accident.

On appeal, Shipp raised two constitutional challenges to the Civil Justice Reform Act. First, Shipp challenged the compensatory damages statute, which provides that the plaintiff can only present evidence of medical expenses that the plaintiff actually paid. See A.C.A. § 16-55-212. Shipp claims this statute violates the well-established collateral-source rule.

Second, Shipp challenged A.C.A. § 16-55-201, which provides that, for personal injury, the liability of each defendant is several only and not joint. Shipp claimed this statute improperly invades the power of the Arkansas Supreme Court to set rules of procedure.

The court decided not to address these questions on grounds of mootness. Because the jury returned a verdict finding Sanders 100% responsible, the case did not present joint tortfeasors to trigger analysis of these statutes. The jury verdict was affirmed.