An inappropriate question by a Mountain View, Calif., patent lawyer during jury selection has earned him a potential 48-hour jail sentence for contempt of court. John van Loben Sels, a partner at Wang, Hartmann, Gibbs & Cauley, tried to prejudice the jury, the judge ruled, in a patent case between client Beyond Innovation Technology Co. (BiTEK) and O2 Micro.
Van Loben Sels asked potential jurors on July 6 if they had "a problem with a company that puts its headquarters offshore on a Caribbean island in order to avoid paying U.S. taxes." Eastern District of Texas Judge Charles Everingham IV, who held van Loben Sels in contempt that day, had prohibited BiTEK's lawyers from saying anything about O2 Micro's tax haven home in the Cayman Islands, as it had nothing to do with the patent case.
"BiTEK, through its counsel, has undermined the parties' expectations to a trial by a jury selected from the panel summoned according to the regular process of the court," Everingham wrote in an order Friday (.pdf), which referred to the contempt sentence and issued sanctions. "By design, the question was intended to prejudice the jury against the plaintiff, which had been introduced as having its headquarters in the Cayman Islands."
Van Loben Sels hasn't served his time yet because Judge Everingham said that if he behaves the rest of the way, the sentence could be dropped.
Everingham also granted a motion for a mistrial by O2 Micro's lawyers at Howrey -- and he hit BiTEK and its lawyers with sanctions. BiTEK will be given half the voir dire time that O2 Micro will get, and just two peremptory challenges instead of four. It won't be able to call an expert witness on infringement, and it must pay O2 Micro's legal bill for the new jury selection.
Paul Vapnek, a veteran patent and ethics lawyer with Townsend and Townsend and Crew, said he couldn't think of another patent case where a lawyer was held in criminal contempt, "and I've been at this a long time."
Van Loben Sels declined to comment, but apologized in a letter to the court Monday, saying he didn't intentionally violate the judge's orders on motions in limine .
After van Loben Sels asked the fateful question, O2 Micro's lawyers jumped up to object, and the judge demanded an explanation, according to the ruling and O2 Micro's lawyer. At the time, van Loben Sels defended himself, arguing that the question was just "hypothetical" since he didn't use O2 Micro's name.
Richard Cauley, name partner at Wang Hartmann, wrote in a court filing after Friday's ruling that van Loben Sels had been removed from the trial team and argued that the court order did not "prohibit all references to the taxation issue and he was permitted [sic] raise the issue hypothetically on voir dire."
Henry Bunsow, the San Francisco Howrey partner representing O2 Micro, said he's never seen anything like it in a patent case.
"It was a totally blatant violation of the judge's motion in limine that we had brought, because obviously taxation issues are hot-button issues, and we didn't want to be associated with that," Bunsow said.
Even so, Bunsow said, he was surprised by the jail sentence.
Ethics expert Vapnek observed that the ruling will likely keep the lawyers in line for the rest of the case.
"It's a way of controlling a guy for playing games -- I think it's effective," Vapnek said. "The lawyer clearly tried to get around the in limine order, and he was clearly trying to prejudice the jury."
O2 Micro originally brought the patent infringement suit, O2 Micro International v. Beyond Innovation Technology, 04-32, against a number of companies. As a result of the sanctions, BiTEK will go to trial separately.