Roger Cook, Townsend and Townsend and Crew LLP
Image: Christine Jegan/The Recorder

As a lawyer, you want to tell your client he at least has a shot at winning.

The only thing that Roger Cook could tell Nathan Zommer, CEO of Ixys Corp., was that he was sure to lose.

Ixys had just been sued in the summer of 2000 by International Rectifier, a semiconductor company that had mown down the industry with its patent demands for a decade. Those who resisted ended up in the Los Angeles federal courtroom of the stern and autocratic Judge Manuel Real. Every company that went against International Rectifier before the controversial judge lost or settled. In all, IR got about 20 companies, from Samsung to Hitachi, to sign up for licenses.

"We told Ixys what was going to happen to them," says Cook, 69, a veteran patent litigator with San Francisco's Townsend and Townsend and Crew. "There was no mystery to it."

But Cook's client had been born and raised in Israel, and would talk about his military service in the Six-Day War, the War of Attrition and the Yom Kippur War. Not the kind of guy who can cut a loss.

"I never lose a battle I start," Zommer likes to say. So Ixys didn't settle, and it didn't take a license, like so many others. Ixys went into Real's courtroom, and it lost. A lot, and for eight long years.

Cook and his team lost 27 of 28 motions. They lost the patent infringement case on summary judgment, then got hit for $27 million in damages. They lost before a jury. They lost a separate but related trial for contempt. All Cook was bringing home were injunctions that would've forced Ixys to stop producing a major semiconductor product, damages and attorneys fees in the tens of millions, and a heavy emotional toll for the affable and even-keeled Cook.

"You can't get beaten like a dog and not have it affect you," Cook said. "It was affecting me; it was making me not happy to get up."

But each time Ixys lost before Real, Cook appealed to the Federal Circuit U.S. Court of Appeals — and won every time. And finally, just two weeks ago, Cook and his colleagues won for good. After the Federal Circuit ruled in favor of Ixys for the last time, the U.S. Supreme Court decided not to hear a last-ditch appeal from International Rectifier, crowning Ixys the winner of a bloody battle that started back when the dot-com bubble was bursting.

A REAL CHALLENGE

Cook is a measured man, but he doesn't mince words when it comes to Judge Real.

"His approach seems to be that he picks a winner at the beginning of the case and decides everything in their favor," Cook said last week.

Of course, Cook's not the first to criticize this judge. Real, 84, has been removed from at least eight cases by the Ninth Circuit. In March, he was booted from a securities fraud trial for allegedly aiding the prosecution. In July, he was ejected from a Honda class action, accused by the Ninth Circuit of abusing his discretion by certifying the class without making the proper findings.

Most recently, the Federal Circuit threw Real off a patent case between Microsoft Corp. and Research Corporation Technologies after reversing his ruling. "The strongly expressed convictions of the trial court in this case may not be easily and objectively reconsidered," a Federal Circuit panel wrote in August.

His reputation has reached far beyond the courts. Two years ago, a Congressional subcommittee held an impeachment hearing over allegations that Real had interfered in a bankruptcy case to help a woman whose parole he supervised, though it reached no conclusions.

A message requesting comment from Real, left last week with his court clerk (the "best way to contact" the judge, according to his Web site), was not returned.

The patent litigator who represented El Segundo-based International Rectifier for many years, Glenn Trost, takes issue with Cook's criticisms of Real. Trost, now a partner at White & Case in Los Angeles, says the attacks are unfair.

"[Judge Real] has gotten a lot of criticism, but my own experience with the judge is that he is decisive, but fair to litigants," Trost said.

International Rectifier first found itself in Real's courtroom in the late 1980s when it began an aggressive campaign to license its patents related to metal oxide semiconductor field-effect transistors (MOSFET) — switching devices that regulate the electricity supply in computers and other electronics.

IR's first target was Siliconix, in a 1988 case that went before Real with Townsend representing the defendant. Siliconix lost and from that point, International Rectifier went on to sue a whole slew of companies, from Samsung to Hitachi. And every case went before Real because of a Central District rule that allows cases with the same patents to be related.

By the time International Rectifier sued Milpitas-based Ixys for infringing on three of its power transistor patents, it had already gotten settlements or licenses from huge companies like Samsung and ST Microelectronics. IR brought in hundreds of millions of dollars from its licenses over the years.

"It was a huge success for the company," Trost said.

THE TRIALS OF TRIAL

When Zommer said "fight," Cook knew what they were getting into. In addition to International Rectifier's remarkable success in Real's courtroom, it was a personal battle for both parties. On IR's side, CEO Alexander Lidow was a named inventor on the patent in question. On Ixys' side, Zommer was an engineer who'd worked on similar technology and had a huge amount of disdain for the patents in question.

When it came time to fight it out before Real, not everything went International Rectifier's way — there was that one motion Ixys won. But every other time, International Rectifier's lawyers would write up an order that Real would sign.

"Every significant motion was won by IR and every one of our motions was denied," said Eric Jacobs, a Townsend partner who worked on the case with Cook.

International Rectifier lawyer Trost says counting up motions isn't an accurate picture, because a side might win a motion without getting everything it wanted. But patent litigators interviewed by The Recorder were shocked that a case could be so lopsided.

"That's abnormal," said Mark Rowland, a patent litigator with Ropes & Gray in Palo Alto. "Usually, you win some and you lose some — I'm not personally familiar with any case like that."

Townsend's losing streak drove Cook's boss to lend a hand. Townsend Chairman James Gilliland Jr., an energetic trial lawyer, decided at one point to take a shot himself at arguing a motion before Real, in a case between IR and Hitachi over the same patents. Cook looked on from the gallery while Gilliland threw his heart into the argument on behalf of Hitachi. And lost.

"I, the optimist, believed I could get the court to listen where others had failed," Gilliland said. "I was wrong."

Trost says the Townsend lawyers got the same treatment as he did before Real. "They're trying to develop a theme that they were not treated fairly at the trial court level. They followed the same rules we followed."

Meanwhile, the Townsend team focused on appeals.

"Eventually Judge Real became irrelevant," Jacobs says. "Everything we did was to establish a record for appeal."

And appeal they did. The Townsend team became adept at sending up emergency appeals to the Federal Circuit after Real, on three separate occasions, granted injunctions against Ixys, barring the company from selling its MOSFET technology.

"I would have the emergency papers drafted while they were in the trial, because those results were sort of preordained," said Nancy Tompkins, the appellate specialist on the Townsend team. THE FEDS STEP IN

Throughout the case, the Federal Circuit was Townsend's friend — but wouldn't do the one thing that Cook really wanted: kick Real off the case.

In 2004, the Federal Circuit tossed the first jury award against Ixys. The jury had been allowed to deliberate on damages after Real had already ruled from the bench that Ixys was guilty of willful patent infringement, which automatically triples any damages. The jury's award went from $9 million to $27 million, with an injunction and an order to pay $2.2 million in attorneys fees to IR's lawyers.

The Federal Circuit tossed that verdict, finding that Real erred in his interpretation of a patent and in not considering Ixys' defenses. But the panel didn't give Real the boot, writing, "In this case, there is no proof of personal bias."

It wasn't until 2007 that the Federal Circuit took Real off the separate but related contempt case between International Rectifier and Ixys. It came at the end of a proceeding in Real's court in which he ruled that Ixys and Samsung were in contempt for business among themselves that violated an injunction forcing Samsung to kill its MOSFET business.

The Federal Circuit overturned Real's contempt ruling. And after Real awarded low attorneys fees to Ixys and Samsung following the appeals court decision, the Federal Circuit kicked him off the contempt case.

"Because the district court abused its discretion in reducing Samsung's fee request without an adequate explanation, we vacate the district court's order," the appeals court wrote. "Additionally, because the district court abused its discretion in denying Ixys's fee request, we reverse the district court's denial of fees."

Those fee requests have yet to be resolved.

THE COST OF BATTLE

The Townsend lawyers are quick to point out that the case would never have gone on for eight years without Ixys' strong-willed CEO Zommer.

"Since patent litigation is so expensive, many defendants just get out," said Townsend's Tompkins. "Nathan's attitude was just, like, 'I'll see you in hell.'"

Zommer concedes that the eight-year fight cost him around "double digit" millions. But he said it was worth every penny to beat back IR and its CEO, Lidow. Lidow did not return a message this week seeking comment on the case.

Even with all the emotion in the case, Cook's colleagues say he never lost his cool in front of Real, though Cook concedes it was a difficult task.

"I would have to rehearse when I went up in front of him every time to make sure I got it off my chest before I went in the courtroom," Cook said. "You're tempted to haul off and make a gesture or a comment — it's very difficult to hold your temper."

Henry Bunsow, a veteran patent litigator with Howrey who worked with Cook at Townsend years ago, said that his former colleague was the right man for the Ixys fight.

"Roger has very thick skin; Roger is one of those guys who's willing to take the spear for the client and he hangs there," Bunsow said this week. "Some people would say that he's sort of a plodder — he's dogged, but that's what you need in this situation."

But now Cook along with Zommer and the whole Townsend team are happy to have it all in the past.

"It's more of a vindication rather than great joy," Cook says. "Although there's certainly some joy."