For the second time in four years, a team of Cooley lawyers led by Michael Rhodes has won a patent infringement trial for Facebook Inc. This time, Cooley trounced a nonpracticing entity represented by well-known trial lawyer Thomas Melsheimer of Fish & Richardson.
A federal jury in Alexandria, Va., on Friday returned a verdict that Facebook doesn’t infringe two patents owned by Rembrandt Social Media, a subsidiary of Rembrandt IP Management. The jury also invalidated the two patents, which cover the idea of a “Web page diary” that allows users to share personal information and third-party content with friends.
Facebook has now gone through two trials in its history, both in patent cases. In 2010 a jury handed Facebook a victory in a patent case brought by a nonpracticing entity called Leader Technologies Inc. In both cases, Facebook was represented by Rhodes and fellow Cooley partners Heidi Keefe and Mark Weinstein.
Rembrandt’s revenue comes from licensing patents that it acquires from inventors. It’s not afraid to litigate, and has sued the likes of Apple Inc. and Comcast Corp. In 2009 it won a $41 million verdict against a unit of Novartis AG in a patent case relating to contact lens technology.
Rembrandt accused Facebook of infringing patents that originally belonged to now-deceased Dutch computer programmer Joannes Van Der Meer, who Fish & Richardson claimed was a pioneer in the development of user-friendly Web-based technologies. Before his death in 2004, Van Der Meer was tinkering with a social networking web site called SurfBook.
In a sense, Rembrandt lost this trial before it began. In December 2013 U.S. District Judge T.S. Ellis III took the unusual step of disqualifying Rembrandt’s damages expert, ruling that his $300 million damages estimate was inflated. Fish & Richardson tried to prove damages through other witnesses, but Ellis blocked that testimony just days before trial. As a result, jurors never heard any testimony about damages and wouldn’t have awarded money even if they found infringement of a valid patent.
That’s not to say the trial was meaningless. Had Rembrandt prevailed on infringement and patent validity, it would have been able to focus its inevitable appeal on the pretrial damages rulings. Because of Friday’s defense verdict, Rembrandt is now in the unenviable position of having lost this case on every possible ground —lack of damages, noninfringement and invalidity.
Cooley’s Rhodes handled Facebook’s openings and closings, while partner Keefe conducted most of the witness examinations. Melsheimer represented Rembrandt, along with Fish & Richardson principals Robert Hillman, John Goetz and Ahmed Davis.