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A month-long patent infringement trial in August 2006 between Japan’s Matsushita Electric Industrial Co. Ltd. and South Korea’s Samsung Electronics Co. Ltd.. had the makings of a painfully complex ordeal for jury and judge: A late-summer slog through brain-numbing minutiae of computer circuitry. Much was at stake in the Trenton, N.J., federal courtroom. Matsushita, which labels its products Panasonic, sought at least $300 million in damages. It also sought an injunction barring Samsung, the world’s largest manufacturer of the most common form of computer memory, from selling those products in the United States. The devices are called dynamic random access memory, or DRAM. Although Matsushita had left the DRAM business in 1999, it alleged that Samsung’s DRAM contained technology covered by Matsushita patents. First Samsung, and then Matsushita, had obtained patents for improved techniques for reading the electrical charges that make up the 1s and 0s in the binary code inside computer memory. “The judge admonished the lawyers to try to make the trial as interesting for the jury as we could,” said Jeffrey K. Sherwood, lead Samsung defender and partner in the Washington office of Akin Gump Strauss Hauer & Feld. Matsushita Electric Industrial Co. Ltd. v. Samsung Electronics Co. Ltd., No. 02-cv-336 (D.N.J. 2006). How could the defense demonstrate the flow of electricity through computer memory in a comprehensible and entertaining way � one that also backed their case? The defense team considered using the proliferation of Starbucks coffee shops as a possible analogy. Too iffy, said defense team member Frank C. Cimino, an Akin Gump partner. “There are some people who absolutely despise the fact that there are Starbucks everywhere,” he said. Then there was the suggestion that since the trial was being held in New Jersey, perhaps a gambling theme would work, he said. No dice. “It’s hard to tell how that would play,” Cimino said. “You want to catch jurors’ attention without offending.” Among all the ideas, the defense decided to use a tank of water to tell its story. “Water is always a decent analogy for electricity,” said Cimino, who holds two engineering degrees. “That is how it is taught in engineering school.” Talking about semiconductor circuits “all seems arcane and difficult to understand and divorced from your everyday understanding of how things work,” said Sherwood. “So we set up the notion that water acts as a good metaphor for the movement of electrical charge.” Blueprints were drawn and the firm arranged fabrication of a 15-gallon, clear plastic water tank to demonstrate how Samsung’s circuits work. The tank � in the shape of two connected plus signs � is about 4 feet long and 2 feet high, said Cimino. Named for Dae Je Chin, one of the inventors of Samsung’s circuit, the water tank was dubbed “AquaChin.” The AquaChin presentation related to the validity of the patents at issue, not to Matsushita’s allegations of infringement, Sherwood said. Samsung’s defense was to challenge the validity of Matsushita’s patents, which actually had been issued later than Samsung’s � although the examiner for the second set of patents never mentioned the first set. Both sets of patents described the same process. At trial, Matsushita’s expert testified that electrical current in Samsung’s circuit would move only laterally and wouldn’t discharge completely. Samsung argued that the current in its circuit would fully discharge. Sherwood told the jury that if the plaintiff’s expert was right, water would remain in the cross-pieces of the tank. The demo took place with Samsung’s expert on the stand. U.S. Chief District Judge Garrett E. Brown Jr. “came down off the bench and the jurors leaned over the rail to make sure they didn’t miss anything,” Sherwood said. Before the plug was pulled, the expert said: “We all know exactly what is going to happen when I pull these plugs. There is no suspense here at all. It is just like draining a bathtub,” Sherwood said. The jury watched as the tank emptied completely, as flowing water filled a tub on the floor. Throughout the trial, AquaChin “became a real coined phrase,” said Cimino. Even the plaintiff’s lawyers used it, he said. “But every time they said it, I kind of chuckled to myself. If the jury is buying what we are selling, every time someone says AquaChin it’s going to remind them of what we showed.” Lead plaintiff’s attorney Jack Q. Lever of McDermott, Will & Emery was not available for comment. Even though the water analogy might not have been as risky as using Starbucks or gambling analogies, using a 15-gallon water tank still brought considerable uncertainty. Cimino worried that the tank would burst, flooding water all over the courtroom. The ‘wife test’ After the demo ended, one of the plaintiff’s lawyers congratulated the defenders, Cimino said. The plaintiff’s lawyers had considered objecting to the water tank, but figured it had just as much of a chance of ending in disaster for the defendant as success, Cimino said, declining to name the lawyer. With a big laugh, Cimino described telling his opponent that the defense agreed with those odds. “It’s high risk/high reward with these things,” Cimino said. “If you strike a cord with a judge or jurors, you can really make an impression and get them to understand quickly.” In developing the right analogy, “I use the ‘wife test,’ ” he said, noting that his spouse finds patent law boring. “ Whenever I’m about to make an argument, I’ll run it by her. If she says, ‘I have no idea what you are talking about,’ I know that I’m going to miss my audience. If I can get her interested, using an analogy from everyday life, then I know I’ve got a winning position.” At trial, Matsushita argued its patents were groundbreaking, but the jury invalidated them. “I think that the other side had no idea when they presented this case that they ran a risk of not only not winning but actually losing two of their patents,” Sherwood said. The defense introduced documents showing that Matsushita “looked to litigation as a strategy to pursue in place of making product,” Sherwood said. “That was what this lawsuit was about. They couldn’t compete in the marketplace so they are trying to compete in the courthouse.” The verdict is under appeal.

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