In the two decades since they opened Dallas’ Sayles Werbner, Richard Sayles and Mark Werbner had never tried a case together until they represented Commil USA in federal court in Marshall, a collaboration that led to victory — twice.
On April 8, the retrial in Commil USA LLC v. Cisco Systems Inc. resulted in a $63.8 million verdict. The jury, which deliberated less than two hours, decided Cisco had induced infringement on a patent for wireless technology developed by three Israeli engineers; Commil had purchased that patent in 2006 for $400,000, Werbner says.
Werbner says he brought Commil in as a client and asked Sayles to work with him on the suit because of Sayles’ intellectual property experience. They split the responsibilities “very evenly,” Werbner says. Sayles picked the jury, Werbner gave the opening statement and cross-examined defense witnesses, and both delivered the closing argument, Werbner says. “It was fun for my partner and I to try this case,” says Sayles.
The victory is sweeter because the second verdict totaled $60 million more than the first. In the original trial, the jury found on May 17, 2010, that Cisco had infringed on Commil’s patent but had not induced infringement and awarded the plaintiff $3,726,207 in damages.
But in a Dec. 29, 2010, order, U.S. Magistrate Judge Charles “Chad” Everingham IV of the Eastern District of Texas granted Commil’s motion for new trial. In his Memorandum Opinion and Order, Everingham wrote that during the trial a lawyer for Cisco made an inappropriate comment about pork when cross-examining Commil owner Jonathan David, who is Jewish, and referenced “the trial of Jesus” before Pontius Pilate during his closing argument.
“When these comments are considered as a whole, the court concludes that the comments prejudiced the jury’s findings regarding indirect infringement and damages. These comments had a tendency to appeal to the prejudices of the jurors,” Everingham wrote.
Everingham’s order did not name the defense lawyer who made the comments. But according to trial transcripts in Commil, on the morning of May 12, 2010, Cisco’s local counsel Otis Carroll, a partner in Tyler’s Ireland, Carroll & Kelley, cross-examined David, asking him if a prospective plaintiff’s witness who also is Jewish, Nitzan Arazi, had “hit the road for Israel?” Then Carroll asked David if, prior to his departure, he had dined with the prospective witness. David told Carroll he had dined at Bodacious Barbecue with the other man. Guessing what the witness had eaten, Carroll offered, “I bet not pork.”
Carroll did not return a telephone call seeking comment. Cisco defense counsel Hank Gutman, a partner in Simpson Thacher & Bartlett in New York City, declines comment. In an e-mailed statement, Cisco spokeswoman Kristin Carvell writes, “We are disappointed by the jury’s verdict, but following the two trials in this matter, Cisco has unusually strong grounds for appeal, and we look forward to pursuing them immediately.”