John Dragseth of Fish & Richardson. (Courtesy photo)
It was a small glimmer of hope. The U.S. Court of Appeals for the Federal Circuit rejected Halo Electronics Inc.’s bid for enhanced damages in its patent infringement battle with Pulse Electronics Inc. last year. But two of the court’s 12 judges said Halo deserved a rehearing.
Halo and its Fish & Richardson attorneys took those arguments to the U.S. Supreme Court, knowing they carried some baggage.
Although Halo and Pulse are competitors, easing the standard for willful-infringement damages could also help nonpracticing-entity plaintiffs, a big bugaboo at the Supreme Court. “We needed to talk repeatedly about what our case wasn’t,” Fish appellate chief John Dragseth said.
A Fish team led by partner Craig Countryman won a high-profile decision in Halo v. Pulse that broadens judicial discretion in cases of “egregious” patent infringement.
Fish worked alongside partners from Sullivan & Cromwell litigating the companion case Stryker v. Zimmer.
Fish and Halo are now asking a Nevada federal judge to treble the $1.5 million they obtained against Pulse in 2013 over component packaging technology.
Fish attorneys usually handle their own appeals, but Dragseth says his department regularly advises about weak areas of the law, as in, “Object to this. Challenge that jury instruction. Ask for JMOL. Ask for an in limine motion.”
That approach led to a big en banc win on indefiniteness in 2015′s Williamson v. Citrix Online.
“We didn’t think the law was well-supported,” Dragseth said. The firm was “constantly pushing to get that into a case.”
Fish scored another win this year with the first full reversal of an inter partes review decision of nonpatentability, in Cutsforth v. MotivePower.
Because of the Federal Circuit’s deferential approach, “It isn’t enough to say we have better evidence,” Dragseth said. “You have to convince the court that you have the only reasonable evidence.”