Q&A With The Focal Point’s G. Christopher Ritter
By IP Law360
Most scope-related rulings could happen weeks—or even months—ahead of trial, and that would make trials more cost-effective and efficient, says The Focal Point's G. Christopher Ritter in our series of chats with high-profile IP lawyers.
Q. What’s the most challenging IP case you’ve worked on, and why?
A. Over the past 20 years, my colleagues and I have had the opportunity to work on hundreds of IP cases. These cases are always challenging because you ultimately have lay jurors deciding unique and complicated issues involving technology and science.
Without taking anything away from jurors—who I think generally get it right—they have little if any experience with the subject matter—or may even be scared by technology.
These cases can be doubly challenging if the IP lawyers involved come from deep or hard science backgrounds. Those attorneys are often so comfortable with the technical aspects of their cases that they end up wanting to give either too much or too little information to the jurors.
The more effective strategy is to focus on teaching just as much science as the jurors need to understand in order to weigh in on the issue and to begin doing so using concepts with which they are already familiar.
For example, in one case we needed to explain the effects of heat distortion in soldering balls in a microchip. This involves a lot of technical processes and jargon, which can scare jurors off.
So to convey the important information, we came up with an analogy that people could relate to—the Mona Lisa. Then we developed animations that showed what happened to both soldering balls and an image of the Mona Lisa when they were both distorted at the same percentage levels.
Since most everyone is familiar with the Mona Lisa, using the analogy made the concept of distortion more real and relevant to the jurors and spared them having to learn math and science. This sort of persuasion by education is a tremendously powerful tool in IP cases.
Q. Which aspects of IP law do you think are in need of reform, and why?
A. One of the most difficult aspects of IP work is that the rules of procedure vary from court to court across the country.
For instance, some judges want tutorials in advance and others don’t. Some judges schedule each part of the case at the outset, while others do the scheduling as the case progresses. And some courts make early rulings on the key claims so discovery can be focused, while others allow the case to progress for years before identifying the scope of the trial.
It would save tremendous time and money to have standardized local rules in IP cases.
Variations in scope-related rulings are probably the toughest because when the rulings come late, lawyers can come to believe that everything is in play. For example, the trial team may have 47 different witnesses lined up, only to learn the day before trial that only three will make it to the stand.
Similarly, we’ve seen judges make important rulings on the eve of trial that cause everyone to get scared and settle—even after 50 people have moved into the “war room” and the team has booked two months at the local hotel. This is terribly costly and inefficient since most scope-related rulings could happen weeks—or even months—ahead of trial.
Q. Where do you see the next wave of IP cases coming from?
A. In discussing this with my colleague, Scott Hilton, who works almost exclusively on IP matters, we realized we expect to continue to see an increasing number of so-called patent troll cases.
There seem to be thousands of plaintiffs’ lawyers willing to take on even the biggest firms over ridiculously broad patent claims. For example, recently we were involved on a case that concerned “swivel” stands for computer monitors. The plaintiff sued just about every large manufacturer of computer monitors claiming infringement. The case eventually settled, but cases of this variety can needlessly tie up resources.
On a more substantive level, we are getting numerous inquiries for matters in the biotech arena, particularly gene-and stem-cell-related cases.
Another high-growth area seems to be semiconductor cases involving embedded microchips—not the “branded” chips we’ve seen in the computer hardware realm, but the non-branded components within everyday gadgets like calculators and stereos. Given that just about every electronic device has embedded chips, I expect the case surge in this area to continue.
Q. Outside your own firm, can you name one IP lawyer who’s impressed you and tell us why?
A. Because we’re involved in so many trials, we’ve had the opportunity to see many of the nation’s top IP litigators perform. The most impressive ones tend to do three very basic things:
First, they teach the jury before advocating their cases. They become the jury’s helper in navigating the science. The best IP lawyers are the best teachers—not the fiercest warriors.
Second, they keep their presentation focused on the two or three biggest issues in the case, and they don’t worry about the ancillary issues. They understand that if you win the two or three big battles, you win the war.
Third, the best of the best are good at simplifying complex issues for the jury and the judge. That’s the sign of a true master. As jazz great Charles Mingus said, “Making the simple complicated is commonplace; making the complicated simple, awesomely simple, that’s creativity.”
Q. What advice would you give to a young lawyer who’s interested in getting into IP?
A. The first and most obvious point is that you should have an aptitude for and love of science and technology. Second, I highly recommend getting a lot of courtroom experience—by spending time observing cases and working alongside trial lawyers in the courtroom.
Why is this so important? There’s a huge difference between the three to four years leading up to trial and the two or three weeks of the trial itself. If you know what to expect at the end of the trial, you can do a much better job preparing and planning early on.
I’ve also found that those individuals with the broadest life experiences tend to make the best litigators, as they tend to be well-rounded individuals who can handle any sort of trial, not just IP cases.
Q. I’m a general counsel with a Fortune 500 company facing a major patent lawsuit. Why should I hire your firm?
A. We provide a cumulative level of real-world trial experience and perspective that fewer and fewer attorneys have as more and more cases settle before trial. Trial attorneys conduct one, maybe two, trials a year. We are in trial constantly and have collaborated with some of the country’s most influential trial attorneys in courtrooms across the United States.
Our experience encompasses well over 1,000 civil and criminal cases on every conceivable topic, including many high-profile IP (and non-IP) cases.
Many of the themes and issues involved in disputes repeat themselves, so it’s tremendously valuable to have someone on your side who can say, “We’ve been here, and we know what works and what doesn’t work with a jury.”
The Focal Point’s early assistance in developing strategy—and our ability to help lawyers refine their stories and develop graphic presentations—helps our clients develop more persuasive cases, focus their discovery and contain overall litigation costs.
This article appeared in IP Law360 on November 28, 2007.
Appeared in IP Law360
November 28, 2007