Welcome to Skilled in the Art. Today I’m going to reflect on two big pieces of IP news from Silicon Valley. One is the Apple v. Samsung jury’s inability after a day and a half of deliberation to reach a verdict so far. The other is Weil Gotshal & Manges partner Jared Bobrow‘s move to Orrick Herrington & Sutcliffe. As always, you can email me your own takes, and/or follow me on Twitter.
We’ve had a day and a half of deliberations in the Apple-Samsung trial with no verdict yet. That might seem somewhat surprising, since the jury only has one important question to resolve: What is the article of manufacture to which Apple’s design patents apply?
I’m not that surprised given what the Supreme Court did with this case. The justices couldn’t stomach the idea of awarding all of the profits for design infringement to Apple, given all of the components that make up the device along with the patented rectangular front face with rounded corners and distinctive graphical user interface.
So they bought into the idea that the “article of manufacture” protected by the patents could be just part of the phone. OK, but how much of the phone is the design? The Supreme Court had no idea, and neither does the jury.
Let’s go back to the Oct. 11, 2016, oral argument. Justice Anthony Kennedy told Samsung attorney Kathleen Sullivan, “Both parties kind of leave it up and say, oh, give it to the juror. If I were the juror, I simply wouldn’t know what to do under your—under your test.” Kennedy said a “sensible rule” would be to base it on surveys that show how much consumers value design. But “that’s apportionment, which runs headlong into the statute.”
Sullivan, of Quinn Emanuel Urquhart & Sullivan, assured him that Samsung’s test would be quite simple. “If I’m the juror, I just don’t know what to do,” Kennedy replied. “I’d have the iPhone in the jury room; I’d—I’d look at it. I just wouldn’t know.”
Yep, sounds like that’s just how this is playing out, even with Judge Lucy Koh having adopted the U.S. government’s four-part test for determining the article of manufacture.
Apple seems to have argued very effectively that design is an integral feature of the entire iPhone. Samsung seems to have just as effectively argued that the patents should apply only to the glass screen and casing described by the patents. Jurors are probably just as flummoxed as the Supreme Court justices as to who is right.
There was some good news for Samsung on Friday, as Michael Swift of MLexreported that jurors requested a slide provided by Samsung’s damages expert that broke down all the components of the phone display. Though I haven’t watched the trial firsthand, I’m going to predict that the jurors take Samsung’s approach, but inflate the value of the components as high as possible on Samsung’s range.
Swift also relayed what I expect to be the most memorable moment of the trial for jurors (click here for the video):
We’d Like a Leader With That Litigator
The other big news this week was Weil Gotshal patent lit co-chair Jared Bobrow‘s move to Orrick Herrington & Sutcliffe, where he’ll co-lead the IP practice. After 25 years at Weil, Bobrow is returning to the scene of the crime—Orrick is where he, Matt Powers and Edward Reines began practicing IP law before they all moved on to Weil in the early 90s. Powers was the leader of the pack, but even following his 2011 departure, Bobrow might still have been overshadowed somewhat by Reines, who seems more comfortable in the public spotlight.
Bobrow fills an immediate need at Orrick, essentially taking the place of Neel Chatterjee, one of Orrick’s go-to IP litgators in Silicon Valley until his departure last year for Goodwin Procter. But Bobrow might also get more of an opportunity to build. “We’re excited for him to be a leader as well,” Orrick chairman Mitch Zuklie said Monday.
The question then is whether Bobrow can attract and develop additional talent, both in the near and longer term. Several people who’ve worked with him said Bobrow has the organizational and mentoring chops to pull it off.
In the meantime I’m struck by something he said on Richard Hsu‘s Hsu Untied podcast last year. Asked if there were still things he wanted to do in patent law, Bobrow said that he felt a bit pigeonholed—not by Weil, but by the market—as a specialist in electronics, semiconductors and software.
“The whole field of genetics and some of the tools that are used in genetics. Pharma and some of the small molecule stuff … I think it’s really interesting,” he told Hsu. “Do I have a resume that would look like I know what I’m doing in the courtroom? No. But do I think I could do a great job? I think I could do a good job on a case like that.”
Who Got the Work?
Nintendo is calling on Perkins Coie to take on Gamevice and Quinn Emanuel Urquhart & Sullivan in a patent battle over gaming consoles.
➤ The Dispute: Gamevice manufactures consoles that attach to mobile phonesand tablets. The company sued in March, saying Nintendo’s Switch console—which Nintendo bills as the “home console that you can take anywhere”—infringes its patented technology. The case is pending before U.S. District Judge Richard Seeborg in the Northern District of California.
➤ The attorneys: Quinn co-founder John Quinn headlines a team for Gamevice that also includes partners Chris Mathews, Justin Griffin and Tigran Guledjian, of counsel Scott Florance and associate Richard Doss. Perkins Coie partner Grant Kinsel entered an appearance Friday, indicating that Nintendo would answer the complaint by July 6.
A couple more quick hits:
Kirkland & Ellis is repping Intel Corp. in a declaratory judgment action against licensor Tela Innovations. Intel alleges that it invested in Tela in 2007, getting a license to a portfolio of semiconductor patents. The parties now dispute whether that license reaches back to cover patents that were in the works when negotiations began. Intel seeks a declaration that it doesn’t infringe six disputed patents, and that at least two are being asserted in bad faith. Kirkland partners Adam Alper, Mike De Vries, Greg Arovas, Todd Friedman and Nyika Strickland are on the May 15 complaint, filed in the Northern District of California. No word yet on who’s representing Tela.
And McDermott Will & Emery is representing 23andMe in a patent dispute with Ancestry.com. Partners Bill Gaede, and Bhanu Sadasivan and Brent Hawkinsargue that Ancestry.com is infringing a 23andMe patent that protects “innovative and specific ways and systems to determine a relative relationship between two individuals who share a common ancestor.” Anticipating a Section 101 challenge, the complaint contends that the patent claims are “not directed to laws of nature, natural phenomena, or abstract ideas. Instead, they are directed to specific applications of identifying relative relatedness and notifying end users of such relatedness.”
That’s all from Skilled in the Art today. I’ll be back Friday. See you all then.