Hmmm, here’s an interesting comment I received today from concerned reader, firstname.lastname@example.org:
“And how does your view relate to the millions you spent of LizardTech’s money on patent litigation, which was unjustified to begin with and a complete loss anyway? Can you spell hypocrisy?”
Well, I can spell a number of words, but I don’t think that’s Mr. Bolt’s real question.
The truth of the matter is that I handled LizardTech’s most recent appeal on a contingency and didn’t make a dime on it. (When the company was paying, I was part of another firm and the decisions to proceed were made by others.) I took the case because I believed and continue to believe that the underlying findings of non-infringement and invalidity are wrong. I don’t see the need to spell hypocrisy. I put my time, effort and money where my mouth is and came away with nothing. I’m a big boy and those are the risks in this business. But please don’t accuse me of ripping-off a client.
As to the merits of the case, I don’t see that the case was “unjustified,” particularly in light of the fact that the Federal Circuit went LizardTech’s way in the first appeal three years ago. Appellate courts don’t usually rule in your favor in completely “unjustified” cases.
As to today’s decision not to re-hear the case en banc, I still think the Federal Circuit is wrong and failed to follow its own precedent. But that happens. Most lawyers with experience can tell you stories of cases where courts sidestep issues and more-or-less make up facts to support the decision they want to reach. But no one has to take my word for it. The briefs are public record, and anyone who’s interested can read them and decide for himself — assuming he needs a cure for insomnia.