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McCain advisor Reines pens amicus brief for Apple

By Lawrence B. Ebert, Esq.

In the patent policy discussion in Denver on 27 August 2008, Edward Reines spoke on behalf of Presidential candidate John McCain. In an amicus brief in the Lucent/Microsoft matter, the same Reines wrote on behalf of Apple and Oracle Corp. The Recorder wrote that the brief criticized the trial court for not tying the reasonable royalties to the actual infringement. In this case, the infringement claims were based not on particular lines of code, but on the action of users in making entries into the calendar.

The Recorder noted another amicus brief:

"We think that [the entire market value rule] is one of the doctrinal rules that has been misapplied, and it's an important target for us because it's a rule that often justifies excessive damages," said Robert Merges, a University of California at Berkeley School of Law professor who helped pen an amicus curiae brief for Yahoo, Intel and others. "It's been applied fairly loosely."

While these folks support Microsoft, note separately Microsoft Spreads Intellectual Monopolies as Business Model

***Of Reines-->

Reines name had earlier appeared in a post about blogging patent litigation:

Now people (read: lawyers) are questioning the wisdom of blogging major patent litigation. Those bloggers are pretty high-profile players in the tech market -- Dave Hitz, co-founder of NetApp on the one hand and Sun GC Mike Dillon and CEO Jonathan Schwartz on the other.

The concerns being expressed are the common ones
CEO and GC comments could be "used as evidence down the road." (Stephen Yu, Macrovision GC).
GC comments risk the waiver of the attorney client privilege

CEO remarks might broaden the scope of a deposition into matters that might not otherwise be "relevant" (these last two concerns raised by Edward Reines, a Weil, Gotshal & Manges partner representing NetApp).

Litigator George Newcomb of Simpson Thacher, however, brings to mind Google CEO Eric Schmidt's comment that patent litigation is just one "chip" in the "negotiation being conducted in the courts." Although Newcomb would also advise his client not to publicly talk about litigation, he wisely notes that the potential "damage," if any, would be negligible because Sun's and NetApp's blog entries "had very little to do with the litigation -- [having been] directed at the tech community," i.e., the marketplace, which is where business lives.

Reines also discussed expert witnesses:

'In the big picture, paying $30,000 to back up your case isn't a bad deal,' Weil, Gotshal & Manges partner Edward Reines said. 'Clearly, there are people who lend enough value to a case that they can charge that'...Wei-Ning Yang, a Hogan & Hartson partner in L.A., said last week that the firm is currently paying an MIT professor $2,000 an hour in an IP dispute...Hogan & Hartson wouldn't disclose the name of the expert since the trial is ongoing.

Full post as published by IPBiz on January 05, 2009 (boomark / email).