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Keeping a jury awake in a patent infringement case can be particularly challenging because these kinds of cases contain many of the same ingredients as prescription sleeping medications. Perhaps, then, a patent ought to be issued for the methodology used by an intellectual property attorney who was lead counsel in two cases that made the Top 10. Joseph Re represented Masimo Corp. and Applied Medical Resources Corp. His wide-eyed federal juries awarded almost $200 million in total damages. Re’s formula for an antidote to drowsiness has seven components: � Demonstrate the importance of the patent. � Show how it applies to jurors’ lives. � Keep the presentation simple. � Vary the stimuli. � Make it entertaining. � Humanize the events. � Satisfy jurors’ curiosity. The Masimo patents involved several generations of pulse oximeters — a piece of plastic that a nurse places on a patient’s fingertip to measure oxygen saturation as soon as a patient is admitted. The jury had to ponder signal-processing algorithms, perfusion, saturation, pulse rates, noise and motion tolerance. Why should a jury care whether one corporation or another pocketed the money for these medical devices? “Inventors, not corporations, are the center of patent cases — their struggles, the importance of their achievements � the applicability [of the patents] to each juror’s life,” said Re, whose 40-year-old client was 23 when he began to look at blood-oxygen measuring devices. Re had all the documents digitized and showed them on 14-by-10-foot screens. “Every word could be made several feet high,” he said. “You vary the stimuli to make it entertaining. “Keep the tempo to keep them awake. If you stay with any one thing too long it gets boring,” he added. Most witnesses were live, but several depositions were played on CD-ROM — nobody read from the depositions of unavailable deponents. “It was simple for us,” said Re, of Knobbe Martens Olson & Bear in Irvine. “The case was about measuring oxygen noninvasively. � And who benefits most from that technology? It saves babies, because neonates can’t handle 100 percent oxygen like an adult. They go blind. You need the actual reading.” The target is 80 percent oxygen. “The original technology was designed for comatose patients — patients having surgery,” said Re. Joe Kiani, the inventor, realized that when he turned the knobs of the oximeter while wearing it on his finger, the readings were no longer accurate. “Everyone thought the problem was in the knobs,” said Re. Kiani figured out that the problem was in the body movement that was required to turn the knobs, and he patented the technology that allowed both accuracy and movement. “The hardest part of any patent case is to simplify the technology — your expert has to be a good schoolteacher,” said Re. The jury awarded $134,528,960, finding willful violation of several patents. Re’s other case involved medical patents primarily for abdominal laparoscopic procedures — surgery done through a small incision rather than through the opening up of the whole belly. That is accomplished by filling the stomach with gas so as to give surgeons room to maneuver, and dropping in a camera to enable them to see what they’re doing. The patents deal with the seals that allow numerous instruments of different sizes — endoscopes, clasps, scissors — to be put in and taken out of the abdomen without the gas being let out. The jury awarded $43.5 million. “It was easy,” Re said, as he began to describe the trial. Leonard Post is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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