How The Sausage Is Made


Written by Brandon Baum of Baum Legal and Practice Center Contributor.

You often hear that the key to being a patent trial lawyer is the ability to master complex technical concepts and communicate them to lay jurors. To comfortably act as a translator between the hard science of technology and the soft art of human understanding and common sense. The reality, however, is not quite so impressive.

Take, for example, this closing argument from the i4i vs. Microsoft case. What follows is the entirety of i4i’s discussion of infringement in its initial closing argument:






Counsel simply tells the jury “you heard our expert testify that there is infringement. I won’t bore you by reiterating what he said.” And the jurors are no doubt thankful for this approach, as the technical aspects of proving infringement aren’t exactly exciting or easy to follow. The jurors may well (and in the i4i case, obviously did!) prefer to simply take the expert’s word for it.

Okay, so maybe you’re thinking that the i4i case is anomalous, and that the lawyers must address infringement in greater detail in closing argument in most cases. So let’s take a look at another case: Mirror Worlds v. Apple, the case accusing Apple’s Cover Flow of infringement. The opening closing (remember, patentee gets to go twice) was only 25 minutes. Here’s the portion on infringement:











Yep, that was it. Hope you didn’t blink. The rest of the 25 minutes was spent on such important topics as why didn’t Steve Jobs attend the trial in Tyler, the fact that Apple makes $25 million every day, and how much better our patent system is than Canada’s. Apparently, that was some pretty good lawyering, as the jury awarded Mirror Worlds over $600 million (later taken away by the judge).

In summary, the next time someone remarks on how difficult it must be for patent litigators to both grasp complex technical concepts and explain them to lay people, just smile and nod knowingly.







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