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Lead defense attorney: Jerry B. Blackstock, a partner at Atlanta’s Powell, Goldstein, Frazer & Murphy, was joined by Leslie Zacks from his firm and Greg Ahrens and Drew Blatt from Cincinnati’s Wood, Herron & Evans. Case: Riverwood International Corp. v. R.A. Jones & Co., No. 1:98-CV-2840-BBM (N.D. Ga.) Claim: Plaintiff Riverwood manufactures and leases machines that package beer, soft drinks and other products and sells the paperboard they use. Defendant Jones manufactures and sells what Blackstock described as smaller and cheaper machines, “the Impala version rather than the Coupe de Ville.” Riverwood claimed that three of Jones’ machines violated its patents, while Jones countered that Riverwood’s patents were invalid because they were based on prior designs and would have been obvious to one knowledgeable in the field. Verdict: Following a two-week trial presided over by U.S. District Judge Beverly B. Martin, on August 10 the seven-person jury unanimously invalidated the portions of Riverwood’s patents it asserted against Jones. Everything at stake: “If ever there was a bet-the-company case,” Blackstock said, “this was it.” Riverwood claimed damages of $8 million. Had the jury found that Jones infringed willfully, the company could have been required to pay treble damages along with court costs and attorneys’ fees. Riverwood also sought to enjoin Jones from further sales or production. The lawsuit was closely watched by the industry because Riverwood also sued another company on similar claims in a case stayed pending Riverwood’s expected appeal. Biggest hurdle: In June, Judge Martin held a Markman hearing, named for the U.S. Supreme Court case saying that “judges, not jurors, are the better suited to find the acquired meaning of patent terms.” The judge didn’t issue her ruling until July, two weeks before the trial, and she adopted Riverwood’s interpretation of the patent’s language. As a result, the description resembled the design of Jones’ machines more closely than Blackstock had expected and undercut the non-infringement defense that he had viewed as his strength. An alternative, proving Riverwood’s patents invalid, required a clear and convincing evidence standard rather than a preponderance for non-infringement. Juries rule patents invalid, he added, in 20 percent of the cases. Defense response: Once the judge construes the claims, many cases settle, Blackstock said. Jones made several offers during the trial (he declined to be specific), but Riverwood rejected them, insisting that Jones refrain from selling machines that package soft drinks. Jones was unwilling to do so. The defense then concentrated on convincing the jury that Riverwood’s inventions were obvious and that a person in the field with ordinary skill could have combined elements from different machines as Riverwood’s inventors did. In an attempt to increase jurors’ knowledge, the defense showed them the machines on tape. Keys to victory: Blackstock said the Markman decision ultimately may have worked to his advantage. “Frankly, I think they got over confident,” he said of his adversaries. “You’ve got to stay centered. I think we did that better than the other side did.” “We tried it as if we were the plaintiff. We not only challenged them on every issue; we went after them.” The defense was particularly effective, Blackstock said, at challenging the credibility of Riverwood’s experts. For example, on cross-examination, Riverwood’s technical expert admitted he’d never designed a packaging machine, while Jones’ expert held more than 50 relevant patents. Blackstock was also helped by two rulings. Judge Martin allowed the defense to use one of Riverwood’s patents to attack the other two, and she allowed them to inform the jury that this same patent had been partially invalidated during a previous lawsuit. These rulings made it that much easier to convince the jury to find for Jones.

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