Persuasive Litigator

The Worm in the Apple-Samsung Trial: Treat Patent Jurors Like the Consumers They Are

By Dr. Kevin Boully and Dr. Karen Lisko:

Inside the shiniest of apples wiggles the risk of a worm. We learned as children, when reading our first books and watching cartoons, that something might be lurking beneath the apple’s surface. As adults, we rarely give it a second thought. We take a big bite and go back to swiping our smartphones and updating social media. 

A more consequential risk lurks beneath the surface in the ongoing Apple v. Samsung “patent trial of the century.” Now in its third week in front of a nine-person federal jury, both Apple and Samsung have staked out positions around one of the most important dynamics in patent jury trials -- jurors’ perceptions of how patent protection affects them as consumers. Patent trial strategy should address the fact that jurors’ foremost concerns – and a powerful and quiet motivation for their decisions – often center on how each party’s position influences them as credit card-carrying “buyers” in the market for ever-evolving techno-gadgets. In this post, we react to reports on the first two weeks of the Apple v. Samsung trial with a particular focus on the broader lessons for persuading patent jurors. 

Climb Down the "Ladder of Abstraction" in Patent Cases (And All Cases)

By Dr. Ken Broda-Bahm: 

For many years, the word among intellectual property defendants has been "Don't Mess With (the Eastern District of) Texas." And statistics have borne that out. According to a recent analysis in the Patent, Trademark & Copyright Journal (Pistorino & Crane, 2012), cases in the district have come down in favor of plaintiff patent owners in two out of every three cases. That fact has fostered a gold rush mentality among patent owners, and while some of that venue mojo may just be the force of self-fulfilling prophecies, it is still interesting to look at some of the reasons local observers offer for a continuing plaintiffs' advantage in Eastern Texas. After all, patent cases tend to be abstract and technical. Why would it be better for plaintiffs to try those cases in Texas locales like Beaumont, Tyler, and Texarkana? Bloomberg News posed that question to McKool Smith attorney Sam Baxter, and his response brings it down to earth:  "People here believe if you own something, you own it and certain rights come with that," the Marshall, Texas based attorney said, "If you didn't want someone coming to your pastureland and building a house, you can tell them 'No.' " So it could be that Eastern Texas jurors are just able to understand patent cases in ways that favor plaintiffs and are "grounded" in a literal way. 

Reading that quote reminded me of a snippet of communication philosophy that I learned in graduate school. That was a long time ago, but I try to apply it today to my writing, speaking, and consulting:  Move down the "ladder of abstraction." This post takes a look at what that idea means in patent cases, and all other cases as well. 

Tell Your Patent Invention Story In a Way That is Worth Copyrighting

By Dr. Ken Broda-Bahm -

 
Last month, Uniloc USA lost a multiyear battle against Microsoft to preserve a $388 million jury award against the software giant, and will now be retrying the patent infringement case on damages alone.  One thing Uniloc has in its corner for retrial is a compelling invention story:  a plucky Australian inventor working since the early 90's to figure out how to prevent the ubiquitous practice of copying software to multiple machines, only to see his novel solution incorporated without compensation into Windows XP and Office programs, according to Uniloc.  

Invention stories won't always have legal relevance.  Microsoft's software either infringes or it doesn't, and the story might only legally bear on the less frequently argued element of wilfullness.  However, from the perspective of persuasiveness, the story matters in nearly all patent disputes, as arbitrators, judges, juries, and even examiners look to the story in order to determine what is original and novel about the invention.  This post takes a look at why you should tell an invention story, when you should tell it, and how you should put that story together.

In Patent Arguments, Remember that Words Don't Have Meaning

By: Dr. Ken Broda-Bahm -

Okay, that is a deliberately provocative title, but I mean it literally:  words don't have meaning any more than scissors have cut paper.  Meaning isn’t an inherent or immutable attribute or possession of a word (something it “has”), but is rather an effect of the word when used in a particular context (something it "does").  What we like to think of as a “definition” is a selective view of the work that words do or ought to do in a particular context.  In the case of patent litigation, where meaning is everything, it is strategic and helpful to your fact-finder to conceive the work that words do as a verb ("to mean") rather than as a noun ("meaning").  This basic approach has some very important practical implications for the patent litigator who is looking for clear and reasonable ways to argue for the superiority of one meaning over another.  So in this post, I'd like to unpack that perspective a bit, and sketch out some of the main ways of advocating your definitions in patent litigation.

Stop Searching for the Perfect Analogy (but Don’t Surrender a Communication Lifesaver)

by: Dr. Ken Broda-Bahm

Sigmund Freud is credited with having said that “analogies prove nothing, but they make us feel right at home.”  Among litigators, there are two schools of thought on whether to deploy analogies in the course of legal persuasion.  One side argues that the explanatory staying-power of an analogy makes it a vital communication tool.  For instance, it isn’t easy to discount an analogy that

seems to perfectly boil down the case:  “a smoke detector that stops working due to a simple short circuit is like a life preserver that keeps you afloat until it gets wet.”  One side, however, is equally insistent that analogies are counterfeit proof, rarely fit the exact situation, and are frequently exploited by the opposition. 

 

It turns out that both sides are right.  Analogies are simultaneously weak proof and strong communication.  They are simultaneously ill-fitting yet familiar.  Like all elements of legal persuasion, success depends on how you use them.