In litigation, one principle remains steady: Better to win. For Tracey Davies and William Dawson, two IP litigation partners in the Dallas office of Gibson Dunn & Crutcher, who represent defendant T-Mobile Corp. in multiple patent cases, this is particularly true.

On March 19, U.S. District Judge Rodney Gilstrap for the Eastern District of Texas in Marshall issued a final judgment in favor of defendant T-Mobile, in Calypso Wireless et al v. T-Mobile Corp., dismissing a patent infringement suit. Gilstrap based his final judgment on a Jan. 15 report and recommendation issued by U.S. Magistrate Judge Roy S. Payne, which proposed granting T-Mobile’s motion for summary judgment of non-infringement of all asserted claims. Payne based his recommendation on the ground that T-Mobile’s devices did not rely upon a pivotal element of the switching technology significant to the infringement claims. Specifically, the report states that T-Mobile’s devices didn’t have a pre-established range for when they would switch receiver technology.

Dawson, who co-led with Davies in the defense in Calypso, also represented T-Mobile in another patent infringement trial, which led to a take-nothing jury verdict favor for the company in early February. For Dawson and Davies, the back-to-back successive wins are very satisfying.

In Calypso, Dawson says one of the challenges was keeping track of the relevant technologyas the case dragged on due to one plaintiff’s bankruptcy case.

"The memory of man just lasts for so long. It’s a hard thing to do, like trying to eat warmed over mashed potatoes," he says.

Davies says the case dragged on so long it began to seem as if she had somehow landed in the movie "Groundhog Day," in which the actor Bill Murray’s character keeps re-living the same day.

In his Jan. 15 report and recommendation, Payne writes that Calypso plaintiffs asserted multiple patent infringement claims about a technology related to switching between a wireless carrier’s network and a Wi-Fi hot spot. T-Mobile argued that the plaintiffs "cannot meet its burden of proving infringement because the accused devices ‘auto-switch based on signal strength and quality, not in response to the distance between the wireless communication device and the . . . Wi-Fi router,’ " Payne writes. But, according to Payne, the plaintiffs argued that "[T]here is ‘no basis to conclude that any such parameter must be a pre-established vicinity range or predetermined maximum distance.’ " Payne concludes: "[N]one of the evidence offered by Calypso rebuts . . . or even suggests that the ‘pre-established vicinity range’ element is satisfied . . ."

Guy E. Matthews, a principal in and founder of Houston’s Matthews Lawson, who represents the plaintiffs in Calypso, did not return a call by press time.

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