To defend a giant Internet corporation like Yahoo! Inc., attorneys from McDermott Will & Emery emphasized strenuous preparation and the case’s human dimension. Facing litigators from the well-respected Dallas firm McKool Smith, intellectual property attorneys Yar Chaikovsky and Fay Morisseau wrote their opening statement five months in advance and spent three months on intensive trial preparations, including mock witness examinations.
They prepared the founder of Yahoo to present himself on the stand not as some corporate suit but rather a computer science major who dropped out of Stanford University to launch a company he was still passionate about.
The result: The jury took only 40 minutes (including a lunch break) to decide for Yahoo, which avoided as much as $100 million in damages in a patent dispute with software company Bedrock Computer Technologies LLC.
The deliberations were the speediest Morisseau had seen in 34 years. “Our witnesses connected with the jury,” he said. “I think the jury saw these as people they could believe and trust.”
The verdict represented the first defense victory since 2007 in the plaintiff-friendly U.S. District Court for the Eastern District of Texas. And it came only a month after Google Inc. lost a $5 million verdict to Bedrock on the same issue, prompting additional co-defendants such as Amazon.com Inc., AOL Inc. and Myspace Inc. to settle.
The team was undaunted when the co-defendants caved. “We had all prepared to make sure we were ready to try this case on our own,” Chaikovsky said. “And the client — seeing that preparation gave them that confidence.”
During the trial, each side had only 11 hours to present their case. That meant experts had to be examined and cross-examined in short order. Knowing the facts inside and out let Chaikovsky make changes on the fly, he said, hitting only the most important testimony.
After the McKool Smith attorneys finished presenting their case, the McDermott team felt it was ahead. “We had done such thorough preparation we won every witness,” Morisseau said. Lead counsel Doug Cawley and Scott Hejny of McKool Smith didn’t respond to requests for comment.
One Yahoo witness had prepared to spend 90 minutes on the stand; Chaikovsky finished with him in 30 minutes. The next expert required 25 minutes — half the time he’d prepped for. “He was able to do it because he had been working so hard,” Morisseau said of his colleague.
DENIAL OF SERVICE
The dispute was over a patent Bedrock holds on a method of preventing denial-of-service attacks, when outsiders overwhelm a company’s computer servers by flooding it with traffic. Bedrock claimed Yahoo ran a version of the Linux operating system containing its process for allowing the servers to figure out when an attack was occurring and delete the bogus information instead of storing it, mitigating the effect.
Yahoo argued that its software didn’t violate the patent and that it wouldn’t matter anyway, because the company had other safeguards in place. They created an animation showing how Bedrock’s patent worked and contrasting it with the Yahoo system.
The team even produced a movie to present evidence by David Barrow, director of infrastructure systems at Yahoo. The camera followed Barrow through Yahoo building security and into its server farm, where 2,000 computers control the Web site. The movie showed how servers were set up and performed during denial-of-service attack drills.
Then Barrow stepped down from the witness box to explain the hardware, which the legal team had hauled into court and placed in front of the jury.
The team recognized the importance of bringing Yahoo co-founder David Filo to the stand. In the past, Chaikovsky said, jurors have made clear during debriefings that they expect to hear from top corporate executives in cases like this, with so much money at stake. When the executives don’t show, jurors presume there’s a reason — and not a good one.
Plaintiffs’ attorneys often cast patent cases as a lone inventor being taken advantage of by a big company. Filo’s knowledge and enthusiasm about his company helped dispel that impression, Morisseau said. “The jurors are going to take that to heart,” he said. “He was a wonderful witness, and he knew the facts and the case as well as anyone in the courtroom.”
It didn’t hurt when the last Yahoo expert witness who testified actually got a laugh. McKool Smith’s Hejny was trying to prove that Yahoo had willfully violated the patent, and brought out a potentially damaging e-mail that one of the co-defendant companies had generated. The e-mail said that defeating Bedrock’s claims would require a “patent loophole expert” — someone who could weasel out on a technicality.
Are you that loophole expert, Hejny asked Joel Williams, Yahoo’s invalidity expert.
“No, I’m not,” Williams replied.
“Well, do you know one?” Hejny continued.
The Yahoo expert shrugged, paused, and replied: “You?”
As laughter filled the courtroom, Hejny sat down.
Todd Ruger can be contacted at firstname.lastname@example.org.