Key To Success: Knowing Your Client’s Technology

Thursday, May 23, 2013 - 22:09

The Editor interviews Todd Landis, Partner in the Intellectual Property Practice Group in Akin Gump’s Dallas office.

Editor: Please describe the areas of intellectual property law in which you have had your major experience. Does your practice consist of litigation for both plaintiffs and defendants as well as transactional work?

Landis: My predominant experience is in patent litigation, which I have done for the past 15 years, although I did some patent prosecution early in my career. I try cases for both plaintiffs and defendants. Given the large size of our law firm, we tend to be more on the defense side simply because of the nature of patent litigation these days, with many non-practicing entities filing lawsuits against our clients. I only do transactional work for a select few clients dealing more with licensing and mergers and acquisitions.

Editor: Just recently your client received a favorable verdict in a case involving alleged infringement of patents on television receivers. Please take our readers through the steps that led to a favorable verdict for your client, TPV Technology Ltd. What allegations were made by the plaintiff Hitachi?

Landis: The allegations were that Hitachi’s patents had been infringed. The case started out originally with 10 patents that Hitachi was asserting against my clients TPV and VIZIO for their sales of televisions in the United States. (VIZIO settled the matter favorably right before jury selection.) When the case went to trial, only four patents were left, because Hitachi had dismissed several patents from the case. Some of the expert testimony made it clear that there was no infringement of these patents. What led to a favorable verdict was a lot of painstaking setup, that is, depositions of experts and key fact witnesses.  These depositions provided for cross-examinations at trial that yielded testimony proving the strength of our client’s positions. When the plaintiff’s witnesses came to the stand and took certain positions, we were able to attack their conclusions forcefully, and that really minimized their impact with the jury. All of our preparation leading up to the trial enabled us to be effective and to take advantage of opportunities that arose on the fly at trial. Trials are like sporting events – the team that capitalizes on its opponent’s mistakes usually wins. We had a great team that had prepared an air-tight and concise case, and because we knew the case so well before trial, we were able to capitalize on the other side’s mistakes. That really carried the day when it came to getting a unanimously favorable defense verdict in a forum where it is not easy to get a defense verdict.

Editor: The case was heard in the Eastern District of Texas, a favored venue for patent cases. The court was once known as the “Rocket Docket.” Is this still the case?

Landis: The court is regaining that status. At a recent seminar, some of the judges said that their average time to trial now is 18 to 20 months, which is pretty fast for a federal court. When Judge Rodney Gilstrap took the bench in 2011, there was a backlog of many cases, including our case against Hitachi. He scheduled our case for trial in nine months, which for a case between competitors is an aggressive schedule – almost an International Trade Commission-type schedule. He is regularly setting cases on a fast track. Now, he did acknowledge that if the District Court continues to see the filings the way they have seen them recently, a slowdown might occur, depending on how many settle. Given the history of how cases are handled, I expect the time to trial to be around 18 months. While it may not be a “Rocket Docket,” that is pretty quick.

Editor: Why has the Eastern District of Texas court been one that has been chosen as the venue in so many of your cases? What makes this panel of judges one whom both plaintiffs’ and defendants’ lawyers, particularly plaintiffs’ lawyers, favor?

Landis: The Eastern District has been a favored venue for several reasons. Originally, plaintiffs saw the court handing down large verdicts, putting pressure on defendants to settle, especially in cases of non-practicing entities. Today, the venue is still chosen because of this factor, as defense verdicts are still fairly rare. Also, it is chosen because the judges have become so expert in patent law, having heard so many of these cases and having handled so many Markman hearings. They understand the dynamic of the Federal Circuit as to what will withstand scrutiny on appeal in upholding a claim construction ruling. They have also addressed the problems in patent litigation discovery, including e-discovery. They have taken major steps to help parties minimize discovery costs by not requiring such excessive e-discovery and other discovery. The venue itself, given its rules and judges, has made it clear to everyone how cases will be litigated and tried, so litigants have a good idea of what to expect as the case progresses. For lawyers and clients alike, that lends comfort.

From the defense perspective, I would say that one downside to the district is that some angles of attack, such as seeking a stay of litigation while the Patent Office re-examines the patent,  are not as commonly granted in the Eastern District. So, there are disadvantages. But there are advantages to knowing that you are dealing with a court that knows the law and handles cases in a predictable manner. Victories, like our recent one in the Hitachi case, go a long way toward demonstrating that defendants with a strong case can win at trial.

Editor: Please also describe your defense of the world’s largest telecommunications companies regarding smartphone technology. Has the inclusion of so many patents in smartphone technology made it difficult to differentiate among the distinct patent holders, given the synergies among the underlying technologies?

Landis: We represented six of the largest cellular phone manufacturers in the world as well as all of the major wireless carriers in the United States, several of whom I have represented over the years. The wireless industries are of great interest in our practice. Your last question is very appropriate because the difficulty with smartphone technology is that there are so many small components – peripheral elements that cause the smartphone to function – and there are great synergies among the underlying technologies. Many of these cases are being brought by non-practicing entities that are trying to stack up their gains from holding patents applied to discrete pieces of technology. This is why cellular phone companies are starting to fight these lawsuits, saying “Enough is enough – I’ve already paid for this component once!”  There will doubtless be arguments as to infringement and invalidity, but the damages side of the case is what causes some great complexity. Just recently, a district court judge made a ruling in a Microsoft case about how to determine a fair and reasonable royalty under a patent that is adhering to the industry standard. Microsoft Corp. v. Motorola Inc., No. C10-1823 (Western District of Washington).  Its outcome in the Federal Circuit may make it easier for smartphone companies to deal with this issue.

Editor: Please describe some of the cases you have brought under the Lanham Act.

Landis: My Lanham Act cases have usually involved a client who has a brand name that is being traded upon by entities in various locations. Most of my work has been in getting temporary restraining orders and preliminary injunctions, which generally end the case once they are entered. Early in my career, I had the privilege of handling a case for Don Henley and the greatest rock-and-roll band in history, The Eagles, in obtaining a restraining order against an artist that was using the trademark “Hotel California.”  My current case involves paintball equipment, part of which deals with the look of the actual paintball itself, for which my client has a federally registered, incontestable trademark on the actual look or trade dress of the paintball. While Lanham Act cases can be extremely interesting, sometimes there is little in the way of damages. Most of the work is upfront preparation in the early phases of the case in obtaining injunctive relief, and then if you are successful, the case will typically go away.

In fact, many of the companies I have worked for generally do not care about damages. They simply want people to stop using their mark because the damage to their mark, if they allow these people to continue using it, is so great that no amount of damages will ever cover their loss.

Editor: Why is good preparation for a Markman hearing so essential to success in a patent case?

Landis: Preparation is essential because it is usually your first opportunity to educate the court about your case. That is so important in these cases. You typically provide the court with a technology tutorial showing how you will walk the judge through your technology on a basic level and get the court thinking about your case. In many of our patent cases, we have a legal concept called “indefiniteness,” which the court must take up at Markman hearings and is a summary judgment issue. So you can also have your first opportunity at Markman to eliminate claims against your client. Preparing for the Markman hearing is extremely important.

At a judges’ panel in the Eastern District, one of the judges was asked, “What have been the best and worst practices you have seen?” The judge said, “I find it amusing that when guys who come into my court, who are supposedly the ‘closer lawyers’ (i.e., those who pick up the case the week before they attend the Markman hearing), have PowerPoint presentations prepared by very competent associates. But they don’t know the underlying technology.” His favorite tactic is to skip five slides ahead and ask a very pointed question, just to see how panicked the attorney becomes when he doesn’t really know the technology.  We had a recent Markman hearing in California where the judge eschewed both sides’ PowerPoints and just asked off-the-cuff questions on points the court found important; that was a true test of the lawyers’ preparation.

And so I think there is a lesson here – that clients need to make sure that the people whom they are allowing to take their cases into court and through the Markman process really know the technology –  that they are not wedded to a slide presentation alone. Many judges get frustrated with this lack of understanding, because they are trying to determine what certain words in the patent mean. Good preparation with thorough knowledge of the technology goes a long way toward getting the court to the proper determination.

 

Please email the interviewee at tlandis@akingump.com with questions about this interview.