We've been exceptionally busy lately, so this is the first time we've had some time to actually take a look at what we've accomplished.
The Mann Law Group, now with a new associate Timothy Billick (bio and press release to come later), partnered up with John Whitaker to obtain a unanimous jury verdict award in the case Brilliant Instruments Inc v. GuideTech Inc. in the Northern District of California, Oakland Division (Case No No. C. 09-5517). The jury accordingly awarded a six-figure damages award to Mann Law Group's client. The firm represented GuideTech in this declaratory judgment action initiated by Brilliant Instruments.
The case covered Patent No. 6,226,231 ('231 Patent), which generally relates to a "plularity of measurement circuits" which are used to measure electrical signals down to the picosecond range. For you nomenclature nuts, that's 10 to the -12th second (or one-trillionth of one second). MLG inherited the case from several other law firms after it had been successfully appealed to the Federal Circuit and remanded to Oakland for trial.
"None of that was unanimous"
Every case has at least one or two lessons to be learned. This case? Always poll your jury, and always explain what "unanimous" means. After the judge had re-explained her instructions to the jury, the jury initially told us we lost. However, just as the Hon. Judge Claudia Wilken was getting ready to enter the judgment, one of the jurors spoke up in open court and informed the Court that the verdict "WAS NOT UNANIMOUS!"
The jury was ordered to continue deliberations. The next day, they came back in our favor.
We still have motions pending for an injunction, a defendant's motion to set aside the jury verdict, and a motion for an amendment of the judgment, but we have safely moved past the jury, and we have a damage award.
Next time we will take great care to make sure the judge tells the jury what "unanimous" means in jury instructions.
A few years back I wrote about what I saw as a developing "War on Juries" in patent cases. A couple of recent incidents suggest that the war continues.
Last week we lost a hard-fought case on summary judgment. That happens, it's part of the game, and the lawyer who never loses most likely never accepts a real challenge either. But what's humorous about it is that the decision came four days after trial was originally scheduled to have begun. Given that the whole idea of summary judgment is to increase efficiency and resolve one-sided cases early on, the fact that the case could have been tried to a verdict in less time than needed for summary judgment leaves me scratching my head.
This week, the Federal Circuit (surprise, surprise) overturned yet another lower court decision in favor of a patentee. In that case, the judges concluded that the invention was "obvious" based on some sort of "common sense" inventive standard. (Guess that's kind of up there with the "we know it when we see it" standard.)
What strikes me about both developments is all the judicial lip service paid about what "the trier of fact" could and could not reasonably conclude. Rather than simply present the evidence to the actual trier of fact, i.e., a jury, the courts prefer to spend more time, effort and money guessing about what a jury could find rather than simply presenting the evidence and finding out for real.
The elephant in the room is that juries play little, if any, real role in patent litigation today. Courts still seat them (if you get that far) as some sort of quaint hold-over from the past, but as far as their decisions actually carrying any weight, well, given that virtually every important question is now an issue of law, and hence reviewable de novo by the CAFC, the sad truth is that you will win only if the handful of judges there decide to let you win.
Hope I'm wrong about this, but the handwriting is on the wall. And it doesn't look encouraging.