Holland & Hart LLP
What key skills do you need to succeed in a US patent trial?
The ability to simplify the technology and legal framework in a manner that is not only accessible, but also meaningful to the jury, by presenting a narrative that is compelling enough that it wants to find in your favour. Achieving this goal also means that you are able to read the jury, the judge and the courtroom without the benefit of much feedback — are they understanding this? Do you need to go slower? Faster? Are you making the right points or do you need to switch gears and move to something else? Which piece of the story does the jury want to hear next? The best trial lawyers are able to trust their instincts on these questions and look at their case not through their own eyes, but through the eyes of the other people in the courtroom (particularly the jury).
How have client demands changed over the course of your career, and how has your practice adapted to this?
Clients are becoming more business-oriented and want to know how the litigation goals and expenses fit within their larger business objectives. While the majority of clients are more cost-conscious than ever, they still want to hear and understand the cost-benefit justification for the various litigation decisions throughout the case.
What has been your most memorable case and why?
In Bridgestone Tire of America v Schrader before the US District Court for the District of Delaware, we defended our clients against a larger, well-funded plaintiff that accused the heart of our client’s product portfolio of infringing multiple patents and asserted a damages claim of around $50 million. We faced a difficult situation before the judge, as our opposing counsel was his former law clerk and other issues (eg, an overseas client) made the case particularly challenging from the outset. The court’s claim construction order did us no favours, nor did the pre-trial and evidentiary rulings. Over the course of a two-week jury trial, we used a lean trial team of four people and developed superior trial themes that focused on easy-to-understand analogies to explain the complicated firmware operations of our client’s products. Our trial group functioned like a well-oiled machine — everyone knew their role; we were organised; we all knew the case and the evidence; and we worked seamlessly together. After closing arguments, the jury deliberated for two hours only before returning with a complete defence verdict of non-infringement on all products and all patent claims.
From a litigator’s perspective, what are the major differences between bringing a case at the International Trade Commission (ITC) and in district court?
The main differences that come to mind are faster time to a decision, no jury and no damages component. This changes the presentation significantly, knowing that the fact finder is well versed in patent law and generally more sophisticated on the technology. The remedy of an automatic injunction also raises the stakes significantly, compared to district court where injunctions are difficult to obtain. For these reasons, for the cases that meet the additional ‘domestic industry’ requirements, I generally consider the ITC to be a preferred venue.
How do you expect the US patent litigation landscape to evolve in the next five years?
I believe that patent litigation in general will continue to decline. NPE/patent monetisation enterprise litigation will continue to decline as it has since TC Heartland, although it will persist. But the ever-increasing expense of litigating patent cases and the continuous unpredictability in outcome due to continued Federal Circuit equivocation on various aspects of patent law (eg, damages law, claim construction and Section 101/Alice) have made patent litigation an inadequate means for dispute resolution for pragmatic business decision makers. The patent system has priced itself out of reach for all but the largest companies, which will continue to use patent litigation when the stakes are sufficiently high to warrant the time and expense. Third-party litigation funders will continue to grow and look to support cases that patentees would otherwise not be able to afford. Unfortunately, I also predict that the Federal Circuit will continue to complicate, rather than simplify, the case law, which will create further unpredictability in the system and drive down the incentive to initiate patent litigation to an even greater degree.
Timothy P Getzoff
Timothy Getzoff has served as lead trial counsel in high-stakes patent, trademark and copyright litigation matters throughout the United States, handling more than 150 IP litigation cases in numerous federal district and appellate courts, including trials to a jury verdict in courtrooms across the country. Mr Getzoff has practised before the International Trade Commission, handled multiple cases before the TTAB and conducted appeals and oral arguments before the Federal, Second, Sixth, Ninth, 10th and 11th Circuit Courts of Appeals.