Description
COOLEY PATENT LITIGATION
No. 8: Spend to Save, Invest in
Markman
Similar to a motion to dismiss or a motion for summary
judgment, the outcome of a Markman hearing often
decides a patent case or creates a decisive advantage
for one party over another. The interpretation of patent
claims after a Markman hearing can create the basis
for a motion for summary judgment of non-infringement,
the basis for an invalidity defense, or the clarification of
trial issues in ways that foretell the probable outcome
of the litigation. Thus, it is important that your trial team
devote significant resources to obtain a favorable
outcome at a Markman hearing.
Being prepared for success at a Markman hearing requires an understanding of the nuances of the patent, technology, and products at issue. No. 9: Go for the Win-Win vetted to identify its strengths and weaknesses with respect to the elements of the claims to be proved at trial. Knowing your theme allows for heightened awareness and focus during document analysis.
Such awareness improves the quality and speed of document review and deposition preparation, as well as the identification of key witnesses. Joseph Drayton (jdrayton@cooley.com) is a partner at Cooley LLP. His practice focuses on complex patent, intellectual property and commercial litigation and counseling matters. He is recognized as a leading patent litigator by IAM Patent 1000, a “Super Lawyer” top rated for Intellectual Property, and a “2015 Most Influential Black Lawyer" by Savoy Magazine.
To learn more about the author, visit www.cooley.com/jdrayton To learn more about Cooley’s market-leading patent litigation practice, visit www.cooley.com/iplitigation. Litigation is definitely an adversarial process, but it is also a means to an end. If you follow the preceding rules, you will have knowledgeable outside counsel and the relevant information to make an informed estimate of the settlement value of the litigation at the earliest possible juncture. With the facts uncovered from early investigation, have your team calculate a settlement value that avoids litigation and attempt to settle with your adversary.
Don't be dissuaded if settlement seems unlikely. The benefits of early settlement discussions make the effort worthwhile: (i) the dispute may be resolved early, saving your corporation significant litigation costs; (ii) your trial team may learn material information regarding the strength of your adversary's case during talks; and, (iii) in a multi-defendant litigation, you can convey your reasonableness to your adversary early in the litigation process. No. 10: Identify Your Winning Theme If the case is not resolved in the early stages of the litigation, it is time to focus on preparing a winning trial strategy.
The first step is having a theme that resonates with you, your legal team, and most importantly, potential jurors. The information gathered during your early assessment process should be sufficient to arrive at a winning theme. Both in-house and outside counsel should work in concert to craft a short story that supports the winning theme and conveys why you should win.
The story should be COOLEY LLP .
Being prepared for success at a Markman hearing requires an understanding of the nuances of the patent, technology, and products at issue. No. 9: Go for the Win-Win vetted to identify its strengths and weaknesses with respect to the elements of the claims to be proved at trial. Knowing your theme allows for heightened awareness and focus during document analysis.
Such awareness improves the quality and speed of document review and deposition preparation, as well as the identification of key witnesses. Joseph Drayton (jdrayton@cooley.com) is a partner at Cooley LLP. His practice focuses on complex patent, intellectual property and commercial litigation and counseling matters. He is recognized as a leading patent litigator by IAM Patent 1000, a “Super Lawyer” top rated for Intellectual Property, and a “2015 Most Influential Black Lawyer" by Savoy Magazine.
To learn more about the author, visit www.cooley.com/jdrayton To learn more about Cooley’s market-leading patent litigation practice, visit www.cooley.com/iplitigation. Litigation is definitely an adversarial process, but it is also a means to an end. If you follow the preceding rules, you will have knowledgeable outside counsel and the relevant information to make an informed estimate of the settlement value of the litigation at the earliest possible juncture. With the facts uncovered from early investigation, have your team calculate a settlement value that avoids litigation and attempt to settle with your adversary.
Don't be dissuaded if settlement seems unlikely. The benefits of early settlement discussions make the effort worthwhile: (i) the dispute may be resolved early, saving your corporation significant litigation costs; (ii) your trial team may learn material information regarding the strength of your adversary's case during talks; and, (iii) in a multi-defendant litigation, you can convey your reasonableness to your adversary early in the litigation process. No. 10: Identify Your Winning Theme If the case is not resolved in the early stages of the litigation, it is time to focus on preparing a winning trial strategy.
The first step is having a theme that resonates with you, your legal team, and most importantly, potential jurors. The information gathered during your early assessment process should be sufficient to arrive at a winning theme. Both in-house and outside counsel should work in concert to craft a short story that supports the winning theme and conveys why you should win.
The story should be COOLEY LLP .
