This past year Keker, Van Nest & Peters scored blockbuster defense wins for Google and Arista Networks Inc. in closely watched intellectual property trials. The firm also flipped a $14 million patent loss for Pure Storage Inc. by winning a new trial against EMC Corp., then helped reach a settlement to end the parties’ global patent battle.
Partner Brian Ferrall recently answered questions from The Recorder about Keker’s approach to making complex technology approachable for judges and juries.
What do these wins the firm is being recognized for demonstrate about Keker’s IP trial capacities? I’ll respond primarily regrading Arista Networks, as that was my case. One key element of our success in this case was the breadth of the team. While both sides predictably had many attorneys working on this trial, all our partners and associates played a role in court, with most of them even handling witnesses.
The result was a much more diverse group of presenters to the jury and court. This is part of a KVP conscious strategy: a more diverse group of presenters makes for a more interesting and compelling presentation to the jury. Of course, it takes a lot of talent at all levels, and discipline in keeping to core trial themes to pull this off. We’re very proud of this group.
As a whole, it bears mentioning that we were able to implement this strategy across all three cases. Bob Van Nest was essentially the only common thread through all cases, but all cases had widespread involvement at trial by deep teams.
The other observation about at least two of these cases, Arista and Google, is that in both cases there was challenging evidence about the defendant relying on the copyright holder’s work to create their own. Those facts obviously create very significant challenges for presenting to a jury. We were able to develop and present a strong narrative about our client’s innovation to overcome the adverse evidence of copying. This requires careful preparation and presentation of witnesses to be able to anticipate and neutralize the attacks, while also telling our clients’ history.
IP litigation in the past few years has been a national, if not international, practice. How has a relatively small San Francisco firm managed to compete for work and, in many cases, beat larger competitors in the courtroom? I think that this mostly comes from serving clients really well, achieving success, and building name recognition and a reputation on that success. We are grateful our reputation exceeds our size by some measure.
I tend to think of Keker lawyers as trial lawyers first who happen to practice in the patent or intellectual property space because that’s where the cases are being tried these days. What do you say to that? That is certainly how the firm came about and developed its IP practice. And it still holds true. Although we do have more attorneys with technical degrees now, we still do not have siloed practices in which attorneys only practice patent or IP law. We think this diversity in the practice of all of our attorneys makes everyone a better IP trial lawyer.
In the Google and Arista cases, your lawyers set out to paint your client as the true innovator in the field. Is that a recurring theme in how the firm handles IP cases: Trying to show where your client has been the industry leader even when accused of infringement? Absolutely. Of course you need to work with the facts, and in these cases we had good facts and witnesses showing that our client was the true innovator in the field. But it is always important to provide the jury with a reason to feel that a verdict for your client is the “right” outcome.
If you are defending an IP case, where the jury will hear so much from the plaintiff about its patent or its copyright, it is critical that the jury understand all of the hard work and creativity the defendant contributed to the field, and if possible, how the defendant has made life better.
How are your IP litigators harnessing technology to work more efficiently? I’m not sure we are blazing any new paths in this regard. The biggest technology change I’ve experienced in the past several years is the increased use of secure shared drives, like Google Drive, for collaborative work with clients, co-counsel, etc. This has substantially decreased the turn-around time for some projects, and improved team-awareness of status.