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In a way, Michael Sutton’s less-than-perfect hand-eye coordination led him to intellectual property litigation. Sutton, who just won nearly $2.9 million in attorney fees in a copyright case for Compaq Computer Corp., heads the intellectual property and technical litigation practice group at Houston’s Locke Liddell & Sapp. But when he started college at the University of Alabama, he had planned on being an electrical engineer. His mastery of math and science was fine, but his ability to hook up electronic circuits was not. “I just didn’t have the knack,” Sutton says. He changed his major to aeronautical engineering, which didn’t require the same level of dexterity. After graduating in 1969, Sutton worked as a patent office examiner in Washington, D.C., and attended law school at George Washington University at night. He finished school in 1973 and practiced patent litigation at a Detroit firm. In 1977 a former patent office colleague convinced Sutton to move to Houston and join Arnold White & Durkee, which has since become part of Washington D.C.’s Howrey Simon Arnold & White. He remained until 1992, when Fish & Richardson brought him on board to open the Boston firm’s Houston office. But Fish’s rapid expansion brought the firm on hard times, and in 1997, many of its Texas-based lawyers — including Sutton — left. Sutton joined the Dallas office of Chicago’s Sidley & Austin, now Sidley Austin Brown & Wood. Sutton’s wife, Sherry, wasn’t happy with the move. “She had [close] friends in Houston and found Dallas cliquish,” says Sutton. When the couple visited Houston in 2000, Sherry called a friend who was a paralegal at Locke Liddell. The paralegal set up a meeting with some of the firm’s partners. After some negotiating, they offered Sutton a partnership and the couple moved back to Houston. Although Texas firms typically lean toward the oil industry, Sutton’s client list includes a fertilizer maker, a furnace thermostat manufacturer, and Compaq. In this latest case, Sutton represented Compaq in a suit brought by Stephanie Brown, a former concert pianist. Brown claimed that a booklet Compaq included with new computers infringed on a book she had written on keyboard ergonomics. Last year a jury in a Houston federal court found that Compaq did copy some illustrations from Brown’s book, but that the copying was a fair use. In April, federal Judge Melinda Harmon, who is also hearing the Enron case, awarded Compaq $2.9 million in attorney fees for “unreasonable and vexatious conduct.” Brown herself is responsible for most of that fee. Her former attorney, Kent Rowald, a partner in Houston’s Bracewell & Patterson, has appealed his portion. He declined to comment on the case. Rowald asked the judge to refer Sutton, Compaq’s in-house counsel Louis Brucculeri, and the computer company’s entire board of directors to the U.S. Attorney for violating the Hobbes Act, which involves criminal extortion. The charges were based on Sutton’s suggestion to Brown that she could potentially be liable for attorney fees if she did not prevail in the suit. “They argued we were using that as a scare tactic to force her to settle. I actually laughed at this,” says Sutton. Parker Bagley, of New York’s Milbank, Tweed, Hadley & McCloy, now represents Brown and has appealed the attorney fees, the finding of fair use, and some rulings that kept evidence out of the case. Sutton is defending Compaq in another case, brought by New York’s E-Pass Technologies Inc. The company has patented a small device that holds information from multiple credit cards. E-Pass says that both Compaq’s iPAQ Pocket PC and the Microsoft software that enables the device are infringing its patent. (Microsoft is also named in the suit.) The case is pending in Houston federal court. Sutton is probably best-known for a case he lost. He represented Two Pesos, a Houston-based restaurant chain, in a trade dress case brought by Taco Cabana Inc. of San Antonio. Both restaurants had vaguely Caribbean themes. Sutton had argued that Taco Cabana’s decor had not acquired secondary meaning, a legalistic way of saying that members of the public would recognize the inside of the restaurant. The trial court found that Taco Cabana’s decor was distinct and protected, even if it hadn’t acquired secondary meaning. And in 1992 the Supreme Court upheld the decision. It was a landmark case at the time. Sutton handled only the trial. He takes some comfort in the fact that the damages award was $1 million, a fraction of what Taco Cabana had sought. Sutton, 56, says he has no plans to retire anytime soon. “I don’t get to trials that frequently, but it’s something I truly enjoy.”

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