• October 17, 2015

Motion_yo-yoUpdate (October 17, 2015): Another example of why trial lawyer marketing is difficult is that a huge trial win might, sometime later, be a smaller trial win or, worse, ultimately a complete loss. There are appeals, remands, and then additional appeals in some cases (like the case described below (see here, here, and here). So winners become losers and might become winners again in any given case. How in the world can “legal services consumers” differentiate when their lawyers are “winners” or “losers” when there are 180-degree swings sometimes?

Two answers: (1) legal services consumers can and do judge their lawyers by their day-to-day interactions as well as ultimate outcomes (were setbacks and reversals anticipated or at least the risk considered? Was communication prompt and clear?) and (2) to a large degree, for most legal services consumers (like medical services consumers) a leap of faith is simply required. A surgeon cannot necessarily submit some objective data to you making clear that she’s your best choice. And neither can your lawyer. One thing you know for sure, though, is that you need a professional. The most sophisticated consumers of professional services have knowledge and information so they do not have to rely so much on faith and hope but the rest of us do.

Update (November 2013) (under headline: Patent Jury Trial Victory For FBD IP Litigators): Somewhat belated congratulations to Plaintiff and Plaintiff’s counsel, Chad Drown, Lauren J. Frank, Timothy E. Grimsrud, and David Gross of Minnesota’s largest law firm: Faegre Baker Daniels.  Their late September jury trial verdict is the kind of verdict that plaintiffs and their lawyers dream about ($5 million and a finding of willful patent infringement – every single answer on the jury verdict form going their way).  FBD lawyers are now trying to triple the verdict.  Defendants are trying to get the verdict thrown out, of course.

Original Post (May 31, 2103):  (Under subject line: There Is A Practice Pointer In There Somewhere…)

Here is a valuable practice pointer:  Federal Practice and Procedure, by Wright & Miller, et al.  You’re welcome.

Seriously, it is annoying to be referred to a bucket of data and to be told that the answer to one’s question is in there somewhere.

It might be particularly irritating to courts when highly specialized trial lawyers like patent litigators, who are rewarded handsomely for their mastery of technical needles, direct the courts to data haystacks and say, “Knock yourself out. The needle’s in there.”

Global Traffic Technologies, LLC v. Emtrac Systems, Inc. is patent litigation over the technology used at intersections to make room for passing emergency vehicles (TPS, or traffic preemption systems).

Defendants argued to U.S. District Court Judge Ann D. Montgomery (D. Minn.), in part, that the GTT patent is invalid due to prior art as reflected in two printed publications that preceded the date of the patented invention.  GTT argued, however, that the two papers do not qualify as “printed publications,” a term that is defined in the patent law.

Defendants’ motion for summary judgment on the Gerland and Bradfield Papers as “printed publications” under 35 U.S.C. § 102(a) is wholly insufficient.  After summarizing some of the applicable law, Defendants simply refer the Court to the entire expert report of [one of their experts]. [The] report, a 226-page document, covers numerous facts and provides many opinions. Although some disputed evidence comes to light in Defendants’ rebuttal to GTT’s motion for summary judgment, Defendants failed in their own motion to cite facts, such as how the papers were published and how and to whom they were publicly accessible. Defendants failed to establish that the Gerland and Bradfield Papers qualified as printed publications under § 102(a). The Court cannot grant summary judgment on this unsupported basis. See Rodgers v. City of Des Moines, 435 F.3d 904, 908 (8th Cir. 2006) (holding it is improper to ask the Court to “mine [the] summary judgment record searching for nuggets”).

So here is the real practice pointer:  “PIN cites” (page identification numbers) can be critically important, in particular when one is referring courts to voluminous documents or records.

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