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Lloyd R. “Rusty” Day is a named partner at Cupertino, Calif.’s Day Casebeer Madrid & Batchelder, and was the victorious lead counsel in a closely watched biotech patent infringement case, Amgen, Inc. v. Hoechst Marion Roussel, Inc., 97-10814 WGY. He also recently settled the copyright infringement case that Sun Microsystems brought against Microsoft. The terms of the settlement included a $20 million payment to Sun and Microsoft’s agreement not to use Sun’s Java technology and trademark without authorization. Sun Microsystems, Inc. v. Microsoft Corporation, 188 F.3d 1115 (9th Cir. 1999). NLJ: Does it take a special technical background to try technology-intensive cases such as Amgen or Sun? Day: It takes a lot of effort. My undergraduate degree was in political philosophy and I took no science in college. But I think it’s easier and preferable to address some of these cases without scientific training. It concentrates your effort and your focus on pulling out from these cases what it is that is truly dispositive and intelligible to the triers of fact who haven’t had benefit of years of training in this technology. NLJ: So you’re saying that the general-practice litigator is better at trying these cases than a patent specialist? Day: I’ve spent a lot of years learning patent law. And for software cases, you are dealing with patent or trademark or copyright law. You absolutely have to master those bodies of law. … The value I add is not in having a superior knowledge of technology. It comes from helping those with a superior knowledge and technology training understand what is truly important about a case. I force them to think about things in a much more rigorous fashion than they are accustomed to. NLJ: So how do you ride hard on these experts so they will testify in a way that’s useful for the case instead of spouting technical gobbledygook for the jury? Day: You ask them very tough questions and listen to their answers. And depending on the individual or issue or breadth of testimony, I spend about three hours outside the courtroom prepping expert witnesses for every hour they spend on the witness stand. NLJ: How is trying a technology-intensive case different from general commercial litigation? Day: Technology litigation requires a very intensive investment of time. Most of the cases I work on build on a base of knowledge but require that I learn a lot of new technology. These are not like cases about running a red light in which we all share in common a set of experiences that form our judgment and assessment of what happened, what statements are credible and reliable and which ones are not. NLJ: Given the difficulty many jurors and judges have with technology-rich cases, would you advocate the establishment of special courts to deal with them? Day: I am of two minds on that. On one hand, I think the burdens being imposed on district courts to hear patent and high-technology cases is very onerous. When you look at the general jurisdiction of a U.S. District Court, it runs from immigration laws to patents, taxation to criminal justice. There’s a real demand placed on these courts to develop and apply a coherent body of rules that are well calculated to get to the truth. On the other hand, I think some degree of procedural specialization would be helpful so you have a fairly uniform body of rules, applied with a good deal of repetition, so that courts get accustomed to patterns of behavior. But I am resistant to the notion that triers of fact need to be versed in the technologies that are at issue. I am not sure that you would get better justice in that case. It’s my opinion that where people are well-versed in an art, they are quicker to make assumptions than when they are on unfamiliar ground. NLJ: Are you finding that holding a separate Markman hearing early on to determine the scope of patent claims construction slows down or hurries up resolution of a case? Day: I was an early and outspoken proponent for the principle that patent claim construction is an issue of law for the court. We need a uniform application of the laws throughout the country, and a patent claim should mean the same thing everywhere. And by making this an issue of law, we force the court to make an early claims determination. The sooner both parties understand the claims construction, the sooner they can resolve the cases. NLJ: But many lawyers and judges say they are unhappy that the U.S. Court of Appeals for the Federal Circuit insists on reviewing these claims-construction issues de novo and often reverses lower courts on this subject. Do you find this an area of concern? Day: The CAFC is taking a pretty active and heavy hand in laying out and reinforcing the principles of claims construction. You are seeing a number of reversals occurring as a result of that. But I would expect over time that the reversal rate will drop significantly as everyone becomes conversant with doing claims construction. So I would hope that reversal rates begin to decline. If they don’t, we’ve got a problem.

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