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Two years ago Sun Microsystems Inc.’s go-to patent lawyer, Lloyd “Rusty” Day Jr., was busy pursuing the company’s antitrust suit against Microsoft Corp. So when Eastman Kodak Co. sued Sun for patent infringement, the company picked another star litigator to tackle the case, Wilson Sonsini Goodrich & Rosati partner Ron Shulman. Sun kept Day in the wings, though, in case a jury sided with Kodak. That’s what happened last week when a Rochester, N.Y., federal jury found Sun had infringed three Kodak patents. And now Day is riding to the rescue. The Day Casebeer Madrid & Batchelder lawyer will argue the damages phase of the trial, which is critical to Sun — Kodak is seeking more than $1 billion. The jury is scheduled to begin hearing arguments today. “It’s not unusual they would go to Rusty when the wheels came off,” said patent litigator Matthew Powers, a partner at Weil, Gotshal & Manges’ Redwood Shores office. “It shows they are concerned about the case.” Shulman, who remains involved in the case, said Day has been working on it “in one form or another since it began” and became more involved within the past six or eight months. Shulman declined to say how the work has been divided other than that his team handled the liability portion of the trial, and Day was designated to handle the damages phase. Day could not be reached for comment. Regarded by judges and fellow litigators as one of the top patent attorneys in the Bay Area, Shulman has won 16 patent cases — taking his first jury defeat with the Kodak case. He scored Sun as a client after winning a verdict for Broadcom Corp. in a bet-the-company infringement suit brought by Intel Corp. Wilson Sonsini has long handled Sun’s corporate work. But Shulman said the Kodak suit is the first litigation for the firm since at least 1995. Sun and Wilson Sonsini are so close that Sun and Microsoft lawyers spent the night at Wilson Sonsini’s offices finalizing the details of their historic April truce, in which Microsoft agreed to pay Sun nearly $2 billion to settle an antitrust suit. In the Kodak case, the photography giant claimed Sun’s Java programming language infringed three of its patents and is seeking a percentage of Sun’s hardware sales, claiming they are driven by Java. Shulman said the patents relate to “only three minor features of Java.” The future of Sun does not appear to be in Day’s hands. One financial analyst said Sun would not suffer much if it has to pay Kodak $1 billion. “A billion dollars is a very significant amount of money,” said Brent Bracelin, of Portland, Ore.’s Pacific Crest Securities. But given that Sun has $7.1 billion on its cash balance sheet, such an outlay would have “very minor implications for Sun’s financial well being.” But IP lawyer Glenn Peterson, a partner at Sacramento’s McDonough Holland & Allen, said a high damages award would have a tidal wave effect, making it more fashionable to bring patent infringement suits. Bracelin and Peterson said the jury verdict has significant implications for the software industry. “The implications are far-reaching in terms of the number of applications” that could be linked to Kodak’s patents, Peterson said. “Some could interpret this as just the tip of the iceberg.” Kodak spokesman David Lanzillo had no comment on the jury verdict and would only confirm that the company is seeking a $1 billion award. A trio of firms represent the photography giant: Rochester-based Harris Beach, Chicago’s Sachnoff & Weaver and Minneapolis-based Leonard, Street and Deinard. In an interview with The Recorder three months ago, Lee Patch, Sun’s vice president of legal affairs, noted how valuable Day and his colleagues are to Sun. “Day Casebeer is the best by far of the high-tech litigation firms out there,” Patch said at the time. “I would do every piece of work I have with them that is of their subject area.”

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