Another Knock-Out!


Marshall, Texas has a reputation as a tough place for defendants accused of patent infringement. But the Barnes & Roberts team is helping to change this reputation – one fight at a time. On Friday, September 23rd, a Marshall jury returned a knock-out victory of non-infringement for handset seller, HTC America. Additionally, the jury found by clear and convincing evidence that the claims asserted by Mobile Telecommunications Technologies (MTel) were invalid.

Congratulations for the victory belong to our clients Jerry Selinger, Susan Powley and Trampas Kurth, of the patent powerhouse Patterson + Sheridan in Dallas.

Genband Wins $8.2 Million Patent Verdict Against Metaswitch

Genband Patents

An East Texas jury found that Metaswitch infringed seven of Genband’s patents related to VoIP, and awarded Genband $8.2 Million in damages. The court had previously ruled that the patents met the Section 101 requirements for patentability as defined in the Supreme Court’s Alice decision. Tracy and Stephanie represented Barnes & Roberts on the trial team in Marshall, and are proud of the work the team from Baker Botts did to win such a positive result.

  • Jury Hands Genband $8.2M Patent Win Against Metaswitch (Law 360)
  • Jury Finds Metaswitch Infringes 7 GENBAND Voice-Over-IP Patents (Bloomberg)
  • Texas Magistrate Says Firewall IP Should Survive Alice (Law 360)

Newegg Does Not Infringe the ’730 Patent After All

Look at that S car go.

Wait for it…

In the Eastern District of Texas, Judge Rodney Gilstrap issued a ruling over turning the jury’s verdict in the TQP v Newegg case that came before him in November 2013. In that case the jury found that Newegg did infringe the asserted patent ( U.S. Patent No. 5,412,730) and that the patent was valid. It was a disappointing loss after a long, bumpy road for Newegg. Though TQP had already collected over $45 Million in settlements from other companies, Newegg’s policy is not to settle with companies it deems to be patent trolls. Although the jury awarded TQP less than half of what they asked for, the jury still awarded them $2.3 Million in damages.

Then came a nearly two year gap (due to a clerical error) between the jury’s verdict and the Judge’s ruling on Newegg’s post-trial motion for summary judgement, which prevented Newegg from appealing the verdict. But in a surprising turn, Judge Gilstrap granted Newegg’s motion, reversing the jury’s decision on infringement. From the decision:

The Court finds no substantial evidence that this action of the RC4 cipher is directly coupled to (or directly depends on) when, if, or the manner in which enciphered blocks are transmitted or received. In other words, regardless of whether the claim is viewed from the perspective of the transmitter or the receiver, the Court finds no substantial evidence that “a new key value . . . is used each time a predetermined number of blocks have been sent from the transmitter over the communication link.”

Overturning a jury’s verdict and granting a motion for judgment as a matter of law requires a strong belief that reasonable jurors could not reach a different conclusion. That is a bold position, and should be noted by defendants who might be reluctant to go to trial East Texas. Though we strongly believe that East Texas juries are fair to all parties, on the rare occasion when they may miss key evidence (or miss that key evidence is missing)  East Texas judges will step in and correct the error. 

photo credit: PWK_20120524-1040611_DMC-LX5 via photopin (license)

Storytelling and the Eastern District

Sheri Qualters on law.com addresses recent defense verdicts in the Eastern District of Texas, which is generally thought to be more plaintiff friendly. (Barnes & Roberts consulted and created presentations for the defense in four of the five verdicts mentioned in the article.)

Interestingly, several people in the article credit improved storytelling as part of the reason the defenses have been faring better.  The article quotes Judge Leonard Davis:

“[In] some of the defense cases that I’ve seen, the defense lawyers are getting much better at putting together a story and a defense that is not just technically right but appeals to an average lay juror’s sense of right and wrong,” Davis said. “I think they’re making it simpler and doing a good job of communicating with the jury.”

As we’ve been writing over at The Jury Expert, effective communication with the jury involves finding the balance between telling the jury a good story and presenting your evidence clearly. It’s not an either/or thing, you’ve really got to do both well. Creating a good narrative structure for your presentation, backed by well designed visuals, gives you the best chance at persuading a jury.