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Intellectual Property Law

: IP Law Daily

Attorney Sanctions in Patent Trials, a Trend?WSJ.com: Law Blog - WSJ.com

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angry Perhaps it?s a coincidence of timing, but not a coincidence of fact. In the span of two weeks, two different teams of outside litigators representing Medtronic in two different patent trials, heard in two different jurisdictions, were both fined attorneys fees.

The offense? Put on your patent hats: The attorneys were found to have argued outside the ?claim construction? as determined by the ?Markman hearings? in the cases. Stay with us now: A Markman hearing is a hearing held prior to a patent trial that takes the issue of constructing a patent claim, or identifying the parameters of the supposedly infringed patent, away from the jury, and determines what the claims mean as a matter of law. Judges in both of these cases essentially found the Markman hearing effort was for naught.

?Throughout these proceedings Medtronic and the lawyers have demonstrated that when they are faced with adverse rulings, they proceed undeterred, with only superficial observance of the court?s determination,? wrote Judge Richard Matsch, ordering attorneys fees against Medtronic?s lawyers, McDermott Will & Emery, in Medtronic v. BrainLab on Feb. 12. (See our prior post, which links to the order.)

?Through the trial the defendants demonstrated a failure to accept the claim construction governing this case. . . . they essentially urged the jury to adopt an interpretation of the patent claims developed by their experts instead of the construction mandated by the Federal Circuit,? wrote Judge Edward Harrington, ordering a $10 million penalty plus some attorneys fees against Medtronic, in Depuy v. Medtronic on Feb. 25. (Here?s the order, HT LB commentor) (Its lawyers were Dewey & LeBoeuf.)

Is this some kind of trend? We rang Matthew Powers, a patent litigator at Weil Gotshal. Maybe, he said.

?When Markman was decided, about 15 years ago, the gestalt at the time was that this was going to give judges a fast way out of patent cases. Because once you?ve constructed the claims [before trial], then you?re just deciding whether the accused device is inside or outside the claim, and many cases can get dismissed on summary judgment. . . . But people have done a lot of things to figure out how to get to trial despite an adverse Markman ruling. And I think there?s some underlying frustration among district judges that they go through all the work of a Markman hearing, and then it doesn?t seem to have the promised effect.?

Hey, LB readers, we know that patent lawyers are said to be the smartest folks in the firm. Talk to us. Are they also the most aggressive? Or are judges overreacting to their litigation tactics?

Update: An earlier version of this post mischaracterized some details of the ruling in the Depuy case. It?s been fixed.