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.

Patent Litigation

Court Refuses to Transfer Travel Tags Patent Case

Travel Tags owns a patent for a process for making lenticular cards. On July 11, 2006, Travel Tags filed a patent infringement lawsuit against Performance Printing, a Texas company. Travel Tags did not serve the lawsuit, and the parties entered into licensing negotiations with. On November 1, 2006, Travel Tags served the lawsuit, but Performance Printing also filed a declaratory action in Texas.

Performance Printing moved to dismiss for lack of jurisdiction or to transfer the case to Texas. The court denied the motion but Performance Printing can raise the jurisdiction issue again after completing discovery.

Patent Litigation

Hysitron Patent Case Will Proceed to Trial

The District Court of Minnesota denied a motion to dismiss in MTS Systems Corp. v. Hysitron Inc., 2007 WL 2159490 (D. Minn. 7/25/07).

MTS filed a patent infringement lawsuit against Hysitron. The court issued a pretrial order requiring claim charts Hysitron argued that MTS’s claim charts were deficient and moved for dismissal. The motion was based on Rule 11 and the lesser-used Rule 37(b)(2)(C), which provides for dismissal if a party intentionally disobeys a court order to provide or permit discovery. The basis under both rules was that MTS violated the court order by providing deficient claim charts.

The court observed that Rule 37(b)(2)(C) dismissal is only appropriate for serious discovery abuses such as lying and destroying evidence. The court also naoted that Hysitron failed to provide its own claim chart, which was also a violation of the order. The motion to dismiss was denied.