Skilled in the Art: No Pressure for New Generation of Fish & Richardson Trial Lawyers + Second Circuit Upholds Visual Artists Rights Act Verdict + Latham Plugs Into Battery Industry
NextGen trial lawyers at Fish & Richardson bag $31 Million patent infringement verdict.
Left to right, Bill Woodford, Susan Morrison and Jason Zucchi.
Fish Forty-Somethings Land $31 Million Verdict
If I said to you that Fish & Richardson just won a $31 million jury verdict, who would you have guessed tried the case? Maybe a nationally renowned trial attorney like Juanita Brooks or Ruffin Cordell or Frank Scherkenbach, perhaps?
Instead it was a small team of Fish's next generation of trial lawyers. Principals Bill Woodford (age 43), Susan Morrison (40) and Jason Zucchi (41) handled all of the speaking roles while bagging the eight-figure verdict last Friday in Wasica Finance v. Schrader International. They even made a little law on IPR estoppel along the way.
Woodford, who's already been part of a Fish team that went up to the Supreme Court, and Morrison, the managing principal of the firm's Delaware office, aren't newcomers to trials. But they appreciated having Scherkenbach on hand for trial prep and behind-the-scenes advice. "It was a great experience to have someone like Frank advising when we had questions, but at the same time saying, 'This is your case. You make the decisions,'" said Morrison.
The Fish lawyers represent Wasica Finance and BlueArc Finance, which are spin-offs from the Swiss scuba diving company Uwatec AG. Based on technology for measuring and wirelessly transmitting air pressure in dive tanks, the company patented a device for monitoring automobile tire pressure in the 1990s. Wasica and BlueArc sued in 2013, alleging that Schrader International and related companies sold infringing sensors used on more than 100 million vehicles.
The case was put on hold for several years while Schrader and another party pursued IPRs that knocked out 17 of the 21 patent claims. The Fish lawyers ended up asserting a single claim against Schrader at trial, on a sensor that transmits a specific type of signal.
Schrader tried to reprise its invalidity arguments, this time combining prior art that had been before the PTAB with actual sensors used on Chevrolet Corvettes in the 1990s. Schrader, represented by Pillsbury Winthrop Shaw Pittman, said it wasn't able to make that argument at the PTAB because physical products aren't allowed in IPRs.
The Fish lawyers argued, and U.S. District Judge Leonard Stark agreed, that Schrader could have instead submitted a 1990 scientific publication that disclosed all of the relevant Corvette sensor features. "In the absence of unambiguous statutory language and precedent from the Court of Appeals, the Court finds more persuasive the view that IPR estoppel applies in the circumstances presented here," Stark concluded.
Schrader still presented testimony about the Corvette sensors in an effort to limit damages. The company tried to argue that "if there's anything new in this patent, it's basically very minor and not worth very much," Woodford said. Schrader also argued that Uwatec had exhausted its patent rights via licensing deals it struck with other automotive suppliers long ago.
The Fish team turned that defense around. "We were able to say, 'Look, all these other people were licensed because they recognized the value of the patent, and that they should take a license and behave. Schrader didn't,'" Morrison said.
The dispute between the companies goes back some 20 years to European litigation. Woodford said the verdict was "a bit of vindication, a bit of recognition" for Uwatec's contribution to the industry.
Zucchi said it's also a "life-changing outcome" for one Uwatec owner, who's preparing to retire this fall, and for the family of the other, who died in 2012. "They were absolutely thrilled at the recovery," he said.
All members of the Fish team, including an associate and a technical analyst who provided support during the trial, have been invited to Switzerland to celebrate, Morrison said.
Woodford and Morrison shared closing arguments last Friday. That meant they got to turn in at a half-decent hour the night before. Zucchi worked late into the night with an associate—and with Scherkenbach—to make sure everything else was fully wrapped up.
"It's something that I've done for other people in the past," Morrison said. "But the fact that Frank was willing to do that, I think really speaks volumes about the firm's commitment to the next generation of lead counsel."
The 5Pointz complex after being covered in whitewash.
Second Circuit Upholds Big VARA Verdict
"Nobody is above the law and everyone must be held accountable for their actions."
Those words were uttered Thursday by Eric Baum of Eisenberg & Baum following an appellate court win over a New York real estate developer—though maybe not the one you're thinking of.
The Second Circuit upheld a $6.75 million verdict against developer Gerald Wolkoff, who ordered the destruction of graffiti artworks at the 5Pointz complex in Queens to make way for a luxury apartment building.
My ALM colleague Tom McParland has the details of how the Second Circuit interpreted the Visual Artists Rights Act of 1990, and what it means to be a work of art of "recognized stature."
Photo credit: Shutterstock/caption]
Latham Generating Wins in Lithium-Ion Space
Latham & Watkins has had a good month when it comes to lithium-ion batteries and trade secrets.
The firm won an initial determination of default and sanctions in the International Trade Commission for Korea-based LG Chem, who accuses a competitor of hiring away its employees and then destroying evidence. It followed up with dismissal of a San Francisco federal suit that accuses China's Shenzhen Senior Technology Material of hiring an employee and then changing his name to avoid detection.
I've got more background on both cases in The Recorder here.
New IP Leaders at Norton Rose
Norton Rose Fulbright has announced new leadership for its intellectual property practice: Tim Kenny will be the firm's global head of intellectual property, leading a team of more than 250 lawyers. JimRepass is the new U.S. head of intellectual property, and Alicia Morris Groos will be U.S. head of IP brands.
"Being trusted to lead our incredibly talented global IP lawyers is truly humbling," said Kenny, who also serves as the firm's Minneapolis partner-in-charge.
That's all from Skilled in the Art this week. I'll see you all again on Tuesday.
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