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ATTORNEY: Ron E. Shulman FIRM: Wilson Sonsini Goodrich & Rosati, Palo Alto, Calif. CASE: Intel Corp. v. Broadcom Corp., No. 00-796RRM (D. Del.) In patent infringement trials, whether the finder of fact is a jury or a judge, a primary hurdle for the attorneys comes in translating highly technical terms or concepts to people who do not have engineering or science backgrounds, notes patent trial attorney Ron E. Shulman. When defending claims of infringement, he adds, “the key to winning is in showing the jurors by analogies what the differences are between the inventions.” In a recent trial where he was representing Irvine, Calif.-based Broadcom Corp., his client was charged with infringing on two Intel patents, including one on a video decompression chip. Broadcom’s defense relied heavily on proving its chip did not work the same way as Intel’s. But the details about the chips were typically arcane. One key difference Broadcom claimed, for instance, was in the “sequencing means” of the chips. In his opening statement, Shulman gave a down-to-earth interpretation of “sequencing means,” telling the jury it was “the part in chips that gives directions for a control signal to the other parts of the chip. It’s kind of the brains of the overall chip.” Then he quickly turned to analogies to explain why the sequencing means in the Intel chip was different from the ones used by Broadcom. Intel’s sequencing means worked like an orchestra conductor, he said. The conductor gave his direction to everyone at the same time. The two Broadcom MPEG chips worked differently. One chip, he likened to a mailman, who would deliver letters, or signals, to one house, or one segment of the chip at a time. The other chip he compared to a relay race. The sequencing means sent a signal to one chip, which relayed it to a second, which relayed to a third and so on. At the end of the trial, the jury found Broadcom had not infringed on this patent. One of the prime reasons the defense won was that “We presented a jury-friendly case.” Shulman, a specialist in patent infringement litigation, has never lost a jury trial. His biggest jury win before the Broadcom case was in representing Octel Communications Corp., where the plaintiff was charging infringement on four patents and seeking $300 million in damages. The jury found three patents invalid and the fourth not infringed. In the Broadcom lawsuit, Intel had charged infringement on five computer chip patents. The trial in 2001 concerned only two of the patents; another trial will consider the others. One patent at issue covered ethernet networking chips, which allow computers to be connected to an ethernet network. Intel charged that Broadcom’s entire ethernet chip line infringed on this patent. The other patent covered the design of a video decompression chip. Intel contended that Broadcom’s MPEG decoding chip infringed on this patent. While it’s common for lead attorneys in patent cases to turn over much of the grunt work to associates, Shulman does not believe in delegating in the initial stages. “I review every document the other side produces. It [takes] weeks, but that’s the way you learn the case,” he says. If he found anything worth pursuing, he says, “I’d alert our associates, so we could investigate it further.” In researching the case, one of the first steps, he says, is to determine if the plaintiff has been in litigation on this or similar patents. In his research, “We found out that in the ethernet field, Intel had been sued on a similar patent. We sought discovery on this litigation,” he says. “We learned Intel said certain things in that lawsuit that took the exact contrary position. “We found there was prior art,” he adds. “Intel had purchased the ethernet patent rights from Dayna Corp.,” but, he says, the networking concept had been invented by someone else. “They copied it and didn’t disclose this in the patent application.” As a result of this research, Shulman would center the ethernet patent defense on challenging the validity of the patent. The focus of the defense on the video decompression patent was that there was no infringement because the Broadcom product did not do what the Intel patent describes. In his opening statement Shulman explained the differences through analogies, but did give credit to Intel for its development of a video decompression chip. In the plaintiff’s opening statement, lead attorney Jon Gartman of Fish & Richardson had described the great enthusiasm that greeted the announcement at an industry conference of the Intel DVI video decompressing chip. “The DVI chip was a great chip,” Shulman agreed in opening. “It was highly specialized and it was one of the first of its kind.” He acknowledged that Gartman was accurate in describing the reaction to the chip at the industry conference. “We don’t dispute that people clapped. But what he didn’t tell you is what happened after the clapping stopped at the conference. And what happened is this: Nothing.” Instead, he told the jury, the MPEG chip, which is what Broadcom made, became the industry standard. “Their whole pitch was that they were the first to do this, back in 1987. We said, sure, but the world went into a different direction.” As Intel presented its witnesses, Shulman says, he let them testify, saving his ammunition for cross-examination. “I’m not big on objections,” he notes. “Objections are viewed by the jury as obstructions.” In his pretrial preparation, Shulman took the depositions of Intel’s experts, looking for admissions that agreed with his concept of the case. “The most effort goes into the deposition, because that sets up the cross,” he says. This setting up was most apparent in Shulman’s cross-examination of Intel’s computer network expert, Vernon Rhyne. During depositions, Shulman asked Rhyne questions to determine any conflicts with Intel’s claims on the patents and gained some key admissions, he says. But, he asked some personal questions as well. One of Shulman’s contentions in trial would be that Rhyne was a professional witness who would testify however Intel and its attorneys from Fish & Richardson wanted. In the deposition, he asked Rhyne if he owned any stock in Intel. Then he asked how much. Shulman made nothing of this information in the deposition, but the night before he crossed Rhyne at trial, he says, “I looked at what Intel was trading at.” The next day at trial, Shulman asked the witness if Fish & Richardson had hired him to testify in other cases. He confirmed that the firm had used him before — seven cases in the past four years. Rhyne also confirmed that he was testifying for Intel in another lawsuit. “‘Now, in addition to these two cases in which Intel is paying you to testify, you have another financial interest in Intel, correct?’ “‘I do. I own 8,000 shares of Intel stock.’ “‘And when the market closed yesterday, those shares were trading at approximately 33 bucks a pop, right?’ “‘I haven’t looked at a stock market report since the 11th of September,’ ” the witness answered. Shulman continued: ” ‘So your 8,000 shares at 33 bucks a share are worth more than $265,000, right?’ “‘That sounds pretty good,’ Rhyne said. “That’s where Rhyne came apart,” Shulman believes. “He was as smooth as silk, but he was a pro.” Intel was seeking $82 million in lost profits and royalties on sales, plus an injunction preventing Broadcom from manufacturing ethernet chips. But a Wilmington, Del., jury found neither patent was infringed and that the ethernet patent was invalid. Post-trial motions are pending. TRIAL TIPS � Use analogies to present jury-friendly case. � Look for previous litigation by opponent. � Don’t object during direct examinations.

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