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Attorney: William C. Slusser, 53 Firm: Houston’s Slusser & Frost Case: Phillips Petroleum Corp. v. Exxon Corp., No. 98-638 (D. Del.) No matter how complex the technology or how massive the combatants, a jury trial turns on mundane elements, says William C. Slusser. Even in a complicated dispute, he says, jurors “will make their decisions on human issues, based on their own experiences and relationships. This is human nature.” In a recent patent infringement action brought against his client, Exxon Corp., by Phillips Petroleum Corp., Slusser notes, both sides spent significant time explaining the science behind the invention at issue. But, he says, Exxon made the case much more than a “difference of opinion between two behemoths” by putting the dispute in human terms. Phillips had charged that a former company scientist — one of the inventors of the patent in dispute — had left Phillips, then brought inside knowledge to Exxon to help the latter company jump-start its advancement of plastics technology. A major component of Exxon’s defense was to bolster the reputation of this scientist and to establish the Phillips charges as “professional character assassination,” Slusser says. Exxon charged at trial that Phillips had falsely branded scientist Jim Randall a rogue in order to win a lawsuit. “They sacrificed one of their own inventors,” he says. This theme resonated soundly with the jury. After the trial, he recalls, the jurors informed the judge that the disparagement of Randall was the most important factor influencing their rejection of the Phillips claim. This is the latest in a series of victories for Slusser. In a career representing both plaintiffs and defendants in complex civil litigation covering more than 100 trials, he has had only one loss before a jury. In January 1999, he formed his own firm with Claudia Frost, his co-counsel in the current Exxon battle; before that, he was head of the trial department of Houston-based Baker & Botts. ORDER OUT OF CHAOS In this year’s trial, the patent at issue involved a complex process in the manufacturing of plastics. “When you make plastics, a string of ethylene molecules is hooked together in a chain,” Slusser says. While at Phillips, Randall developed a way to analyze the polyethylene chain, which led to the development of a process to isolate the catalyst, hexene, that had been randomly dispersed in the chain so that it would not be clumped together. “This was a more efficient use of hexene,” Slusser says. In 1982, Phillips applied for, and in 1985 was granted, a patent for this process. After this, Exxon independently developed the use of a new catalyst, metallocene, to create plastic, and it began marketing this product. “Everyone recognized that this was the next generation of catalyst,” Slusser says. “It gave the operator incredibly precise control over the process. This led to greater ability to alter plastics.” Exxon patented this process, and in 1998, Exxon sued Phillips, charging infringement. In 1999, Phillips won a summary judgment motion, and one Exxon patent was declared invalid. Other litigation is pending. Two months after Exxon first sued Phillips, says Slusser, Phillips sued Exxon, charging violation of the older patent. The Exxon process used metallocene as a catalyst, says Slusser, but at times, both hexene and metallocene were used. Phillips contended that this infringed on its patent. Exxon denied any infringement and contended that the Phillips patent was invalid. The complexity of this technology meant there were “mountains and mountains” of documents, Slusser says. But in discovery, Exxon focused its search on one particular aspect of the Phillips documents. “We wanted to know, ‘What was the significance to Phillips of this particular patent before this lawsuit?’ “Phillips is a sophisticated patent licenser,” he notes. “The company has a number of roadblock patents in the plastics industry.” But Exxon was convinced, he says, that this patent wasn’t one of them. “Phillips was caught using Exxon’s technology, so they filed a retaliatory suit and dusted off their old patent.” Slusser used mock trials to “identify which themes have the greatest appeal and which are met with skepticism.” For this process, he says, “[w]e made several variations for different panels, playing videotaped presentation before each.” Part of the purpose was to test “how easily people can absorb this, what visuals work, what analogies work.” In any complex intellectual property jury trial, he says, visual aids are critical. POTENT WITNESS As the trial began, Slusser kept the opening statement brief. “If it’s longer than an hour, it’s like a sermon that runs too long. You give them something to look out for, shape where the battlegrounds are.” He avoids going into specific proofs at this time, he says. “You’re previewing the evidence without giving away everything. “Our best proof was the video deposition of the head of their licensing division,” he notes. Exxon contended that Phillips had never valued the patent, and Exxon relied on this witness to prove it. Slusser saved this until the second day. The witness, John David Olivier, was the manager of licensing activities for plastics and chemicals at Phillips. The defense showed only 15 minutes of the deposition before the jury, and the cuts displayed were quick, brief and, Slusser says, “pretty telling.” Under questioning, the witness testified that no one had ever told him that the patent was valuable and that before filing the lawsuit, Phillips had never established a plan for licensing the patent, sought to license the patent, negotiated with any company to license it, or been approached about a license. Olivier also confirmed that Phillips representatives met with Exxon in November 1993 and December 1996 to discuss the metallocene catalyst development. On neither occasion did Phillips bring up the patent. At one point in the deposition, Slusser showed Olivier a copy of the Phillips patent and asked whether he was familiar with it. The Phillips executive said that he had no recollection of ever seeing it. What Phillips thought of the patent was not really relevant, Slusser concedes. “This was not a defense to infringement. But it’s a credibility test.” Slusser believes that the deciding factor in the trial was the way he presented Randall to the jury. “The real question was, ‘How is Dr. Randall going to be perceived by these jurors?’ Was he someone that Exxon poached for the purposes of getting this technology? Or was he a man of science who came to Exxon independent of this technology? We had Dr. Randall set out the true story,” he explains. While at Phillips, Randall “was their go-to technical guy. But he had nothing to do with hexene.” His area of expertise was “analyzing and characterizing plastics. He couldn’t make plastics” — a point that Slusser made clear to the jurors. He elicited a detailed chronology of Randall’s departure from Phillips, so the jury could learn that he had received the job offer before the patent was issued. Lawyers from Phillips had negotiated with Exxon on restrictions on Randall’s future work at Exxon, to avoid any possibility of bringing over proprietary information, he adds. “There were all these opportunities to talk about this patent. It never even came up.” Randall “honored his obligations” to Phillips, Slusser noted in trial, then contrasted this with his treatment by Phillips. “They turned on him and tried to make him the bad guy. His testimony was so persuasive that [the plaintiff's counsel's] first 10 minutes of cross-examination consisted of apologies.” Phillips was seeking $52 million in damages, to be trebled, but on April 20, a Wilmington, Del., jury found no infringement. Post-trial motions are pending. Tips: � Put a human face on a complex dispute. � Focus your discovery on a simple issue. � Avoid giving specific proofs in your opening.

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