Does willfulness evidence play a role in persuading the jury on infringement and validity? The Courts take a harsh view toward parties taking factual shortcuts in briefing. And a claim construction decision turns into an indefiniteness rout. 

 

SPEAKERS

Wayne Stacy, Michael Smith

 

Wayne Stacy  00:05

Welcome, everyone to the Berkeley Center for Law and Technology's Expert Series podcast. This is Last Week in Texas with our expert, Michael Smith. So Michael, thanks for joining us once again.

 

Michael Smith  00:19

Well, good to be here Wayne. Thank you for having me.

 

Wayne Stacy  00:22

Well, Michael, take us to the Eastern District of Texas what what happened last week?

 

Michael Smith  00:27

Well, one thing that happened last week is we got the judgment in judge Gilstrap's PanOptis case against Apple, that's the one that was retried on damages resulted in a $300 million verdict. And when judge Gilstrap got to the 284 issue, which is enhancement of damages based on a willful infringement finding, in one paragraph, he said the standard isn't match, I'm not going to enhance at all. And he says enhancement is generally reserved for egregious cases of culpable behavior. And after hearing all the facts, that's just not this case. So I'm not going to do it. And this kind of matches up with what I tell a lot of people that are worried about willful findings, I tell them, it really doesn't matter if you have a willful finding, because the real money isn't on whether the court is going to enhance, and courts enhance less than I hear. So I think that's one of the significant things here is that you may get a willfulness finding, but that may not actually give you anything as far as enhanced damages.

 

Wayne Stacy  01:31

Michael, this is this one's close to my heart. Several years back, I guess maybe one of the first cases I tried down the eastern district was with George Chandler. And, you know, George is a colorful character and a great lawyer. But he introduced me to a phrase as a young lawyer that I thought was pretty powerful back the dump truck up. And so that got me to do a lot of research. And we looked at about, I don't know, almost 400 jury verdicts, basically, the whole scope of jury verdicts in patent cases. And we found that willfulness was actually a big, big part of skewing a jury toward finding infringement. So, you know, it looks like if you can win on willfulness, you had about a 20 point chance better of winning on your your base infringement case. And that makes sense because that the jury would probably rather find who they want to like and who they want to hate versus dig deep into the technology. So I don't know what do you what do you say to George's strategy there?

 

Michael Smith  02:33

Well, the I was fortunate to get to try a patent case and Tyler with George as well. And you know, the dump truck works a lot better when George's driving it I'll say that. No George is a great trial lawyer, his son Reich, and I graduated from law school together something around his family for a long time. And that's absolutely correct. It does help your case. But those are very interesting facts, because they remind you that while I'm over here saying we don't have to worry about willful because it doesn't affect enhanced damages, as much as you might think it just having willful in front of the jury is kind of threatening the flanks of your infringement defense. So you have to find it affirmatively at the infringement stage. It also explains why we see plaintiffs bringing up some kind of willfulness case towards the end of the case in order to get those argument