Episode #64: Intellectual Property Litigation

Jonathan Barbee, Attorney with MoloLamken LLP, talks with Dr. Steve Wood about IP litigation. Jonathan has broad Intellectual Property litigation experience working primarily on patent cases, but manages the litigation for trade secret and copyright cases as well. Jonathan and Steve discuss the approach to different types of Intellectual Property litigation and the additional challenges encountered in IP cases that go beyond other types of litigation.  Since there is often a lot for jurors to understand in IP cases and many times it involved relatively complicated technology, Jonathan talks about the value of leveraging mock trials to test how to get the information across to the jury in the best way possible and not confuse the jury or make them feel like you are insulting their intelligence. Lastly, Jonathan highlights the value of expert witnesses who are really good teachers and can empathize with the jury on how complicated the technology or IP might be, as well as the difference for him between being on the plaintiff side vs the defense side in IP litigation.

Full Episode Transcript

[0:05] Steve Welcome to the Litigation Psychology Podcast, brought to you by Courtroom Sciences Inc. I am Steve Wood. Back, I’ve been gone a little bit from the podcast. It’s good to be back. Got the new digs, the new, the new studio of sorts. And what better way to come back on a topic that on the podcast a lot of times we talk about, you know, a lot of med mal, a lot of trucking, and we haven’t really devoted a lot of time to this topic, which I think is good. And that topic being intellectual property or IP cases. Um, with me today to talk a little bit about this, I have attorney Jonathan Barbee of MoloLamken. Jonathan, how are you?

[0:42] Jonathan Good, good. Uh, thanks for having me on your podcast, Steve. It’s great to reconnect with you and, and relive some of those good old war stories.

[0:49] Steve That’s right, yes. That’s why I brought you on because like I said, what better way to jive back in with someone that, uh, you know, it’s good to see, get him back on the podcast and see his face again. So glad you’re with us. And, you know, can you briefly let us, let the audience know kind of what your area of expertise is as far as in the IP space?

[1:07] Jonathan Sure, sure. So I have a pretty broad base when it comes to IP litigation. So while I primarily focus on patent cases, both on the plaintiff side and on the defense side, I also do trade secrets cases. I’ve done copyright litigation and, you know, I’m also open to doing uh trademark work because even though they’re distinct forms of IP, there’s definitely overlap in how you conceptualize the IP. And because of that, there are definitely a lot of similarities in how you approach litigation and ultimately trial. Because you want to define the scope of your IP, you want to tell a good story about the technology, and obviously you want to be able to prove that the IP is valid and protectable regardless of the type of IP.

[1:56] Steve I think one of the things, you know, doing work across a variety of cases in my career, and that I found that IP cases are a little bit more difficult than the quote-unquote regular cases. Can you speak to that a little bit? You know, what you found as far as, you know, trying an IP case or working up an IP case as it is compared to something like a med mal or a personal injury case?

[2:18] Jonathan Sure, sure. Yeah, yeah. And, and that’s one reason why I, I wanted to specialize in IP litigation because what I tell people is that it’s sort of like litigation plus. So you have everything that you have in a regular litigation plus a bunch of additional things that you have to take care of and prove up. So it does make the cases more complicated generally, which I think makes the cases more exciting and more fun, but it can also make them more challenging. And so that breaks down in a few different ways.

So instead of just going into litigation and really just having to prove one set of facts or one story, I would say that a lot of IP cases, especially patent cases, break down into three parts. And so you have to treat each part almost like its own case. And it will have its own witnesses, its own storyline, uh its own fact development. So the first piece is going to be infringement in a patent litigation. So that’s a story on its own. It has its own set of documents, its own witnesses. Then the next piece is going to be the validity of the patents ensued. So that’s going to be a separate story uh and a separate set of proof. And then what I think people forget about with patent cases and other IP cases is that the damages case is actually really, really complicated on its own and also requires a lot of attention.

So when you go into a patent case, for instance, you know that you’re going to have to attack those three areas. You’re going to need an expert witness for each of those areas, you’ll need fact witnesses likely for all of those areas, you’ll need separate documents for all of those areas. And that’s why when you’re at some firms, you’ll see that the litigation teams are actually broken down into sub-teams that are, are hyper-focused on one of those areas because it’s hard to have one team working on everything. Although that’s another strategic point because in my experience, it’s actually better to have your team working on all three of those parts because even though you want to attack them separately, they’re all roaming together at the end of the day, especially when you get to trial. So the story you tell about infringement is going to wrap into your damages story somehow um and same thing with validity for instance.

[4:54] Steve And I think that’s interesting from a juror psychology perspective I found is that a lot of cases it’s, you know, whether or not the parties are negligent, whether not that negligence caused the damages. And in this case, there’s a lot of different aspects that jurors have to take into consideration. A lot of it’s highly technical, very, you know, information or topics that they are not really very familiar with. So I find, you know, that now they have to ask and answer questions about whether or not someone infringed on technology they’re not even sure of how it even operates, you know, or whether or not a patent is valid and they’re not even sure, you know, what what the valid patent is or what it looks like or how even these two things work. And if something is a smaller component of another piece, does that infringe or does it not infringe?

So I think that’s where it becomes, and this is where you and i actually got involved and our relationship stems from doing a mock trial together. Because I think this is one of those things where we found, and I’m sure you did too, that jurors really are confused on the topics and that it takes a lot of work for you to try to refine and refine and refine and figure out ways to get your point across, but do it in such a way that a) doesn’t belittle the jurors, but then b) is clear and concise. So you, I can see that you have to walk this tightrope of, you know, how do I get this information across in a cleaner, concise way but don’t do it in such a way that I’m insulting jurors. So, you know, how do you, how do you kind of do that? How does your approach, how, what kind of approach do you take when it comes to that?

[6:28] Jonathan Yeah, that’s a great question and that’s uh one thing that a lot of IP litigators spend a lot of time on because ultimately you have to translate really complicated technology to the judge and the jury. And that brings up two other areas that make IP litigation more complicated. So one, as you said, is the fact that you have to explain the technology to the jury and in a lot of ways you have to do that before you actually start proving up your case. Because like you said, if the jury doesn’t understand the technology and doesn’t understand what the patents are about, then how are they going to understand your infringement proof? How are they going to understand your validity proof?

And the other thing too is in order to help the jury understand these complicated concepts, you have to rely on experts a lot and that brings a whole other dimension to uh to patent litigation. And so to your question, I think one thing you want to try to do is realize that even if you’re dealing with really complicated technology, it doesn’t actually need to be that complicated when you present your case to the jury. And it’s not that you’re cutting corners, but you can take something like some semiconductor chip technology or you know some sort of smartphone technology and actually break it down into very, very simple concepts. And and I think if you do it the right way, the jury will appreciate that and the judge will appreciate that.

But to your point too, you don’t want to break it down too much because what I’ve found in my experience, and partially through working with jury consultants like you, is that sure, jurors don’t have PhDs, a lot of them don’t have science or technology backgrounds, but they’re really smart and they’ll get the technology. So you don’t need to break it down to them like they’re kindergarteners. But some people like to say that you want to break it down to maybe the high school or middle school level. So it’s really easy for them to work with the technology and not get bogged down in that.

And then the other piece of that is that you want to make sure that you find the right experts who are really great teachers. Because when you’re looking for an expert, there are some experts that are just leaders in their field, they’ve done the most research or they have a really notable achievement in a particular field, but that doesn’t necessarily mean that they’ll be a great teacher. Especially when it comes to working on the litigation with you and really not only understanding the technology in the case, but also understanding how the technology fits into the other parts of the litigation. And and what you’ll find is some technical experts, you know, a computer science professor at the university will actually really be able to to piece that together and they’ll get the exercise of the litigation. They’ll get the point of their deposition, they’ll get the point of their testimony, and part of that is is getting them to realize that they need to persuasively tell the jury about the technology.

[9:36] Steve Yeah, I think that’s a good point you made. And I, and that’s a lot of what I, I preach to to witnesses is that you know you need to get the jury to understand and like. And it’s one of those things too is you need a good teacher like you’d said, and one of those who essentially wants the jury to understand and you know really goes out of their way to make the jury understand. And the jurors can feel that too, right? Jurors are sitting there and when you have an expert who is doing it in such a way that it’s like “here’s the technology, but like do you understand? I want you to understand.” It basically comes through that witness, you know their, their conscientiousness and their appreciation for the jurors. And when you do that, I think that I find that a lot of witnesses become strong experts when they do it in such a way that you know it’s, “hey this is a I know this is complicated, I don’t think you’re stupid but I’m gonna, you know we’re gonna walk work through this together and we’re gonna get through this together and I’m gonna make sure that I get it across you because I really truly want you to understand,” versus like you said, “look how smart I am, I’m going to throw out a bunch of big words,” and and you’re lost and you’re glazed over, then so be it, you know, and and move on. So I think that was a good point where you’re talking about about really being a good teacher.

[10:46] Jonathan Yeah, yeah and that’s a great point too because I think sometimes what you want to find is an expert who will actually say what you just said to the jury, right? And not just explain the technology in a really friendly and welcoming way but actually tell them like, “hey I know that this is difficult, this is difficult for my college students, but we’ll get through this just bear with me. You know, it’ll be a little difficult at times but I know that you can get there,” right? And then it’s like the expert witness becomes a real teacher to the jury or becomes a coach to the jury and becomes an ally to the jury. Because I’m sure you’ve done research on this, you know, jurors are looking for somebody to help them out with a tough case, whether it’s from one of the advocates or one of the witnesses or one of the experts.

[11:31] Steve Right, exactly. And if you do it in the right way, obviously you become very, you know, the jurors become very you know and emotionally attached to you or at least believe in your credibility and essentially want to kind of attach more to your your perspective in the case. And I know you talked earlier about that you’ve worked on both plaintiff and defense cases in this, in IP litigation. Do you find one side to be more difficult than the other or can you talk about that about what your, your kind of your approach is to each side?

[12:04] Jonathan Sure, sure. So it’s hard to say whether one side is more difficult than the other. I think it’s difficult to be able to do both at the same firm. So that’s one reason why why I chose my current firm, MoloLamken, because we have a really talented group of litigators here who can shift from side to side and build up a strong case and narrative on either side for our clients. But it takes the right type of litigator so you can think about the case in the right way. And so so I think in general there are some things that you can say about being on one side or the other.

So for sure if you’re representing a plaintiff in a patent case, that means that you’re going to need to prove up every part of the case. You need to make sure that you’re able to prove infringement, you need to make sure that you’re able to defend the validity of the patents, and then you need to be able to prove damages at the end of the case. I think also if you’re on the plaintiff side, you’re potentially more concerned about building a really strong narrative and telling a really, really great invention story. Whereas if you’re on the defense side, you may just be thinking about poking holes in the other side’s story instead of telling your own tale. And so you know you may be, you know, narrowly, narrowly focused on certain areas of the case. So you may say, “you know I’m on the defense side, we’re going to put up a fight when it comes to infringement but we know that’s not the strongest part of our case and we don’t want to distract the jury when it comes to that so much, so we’re going to actually spend most of our time on validity because that’s the strongest part of our case and that’s when we really want the jury to be locked in on us.”

Um but at the same time, depending on the case, you may also want to tell your own invention story on the defense side because maybe your, your best defense is telling the jury that that you as a defendant are actually the true inventor of the invention that’s allegedly claimed by the patents ensued. And so you’ll actually want to develop your own counter-narrative to the plaintiff’s narrative even when it comes to infringement and when it comes to validity and even when it comes to damages. And I think also there might be some differences when it comes down to your direct examinations and your cross-examinations. I think naturally if you’re representing a plaintiff, you’re very, very focused on your direct examinations because that’s going to tell your story and tell your invention story and really give your inventors a lot of credibility and give your client a lot of credibility, which is really, really important. Um and if you’re on the defense side in some cases you may be more concerned about some of your cross-examinations because again, if you’re thinking about poking holes in the other side’s case, you may really just want to get the other side’s expert in a bad position on cross and that may be the thing that causes the other side’s case to crumble.

[15:12] Steve Excellent, Jonathan. Well, I appreciate you. I mean, I’m glad we had you on. You know, kind of wealth of knowledge as far as this IP goes, you know, on both sides. So I really appreciate getting you on. If someone needs to get a hold of you, if they have any further questions or anything, how would they contact you? What’s the best way to get a hold of you?

[15:28] Jonathan Sure, they can contact me in a number of ways. Uh they can get my contact info through my firm’s website, www.mololamken.com. I’m on LinkedIn, feel free to connect with me there, and feel free to shoot me an email. I’m very open to just having discussions like this with anybody. And thanks again for the opportunity, Steve.

[15:51] Steve Yeah, it’s great. I’m glad to have you on. Well, this marks another episode of the Litigation Psychology Podcast. Join us again for another one. Thanks.

[15:58] Jonathan Thanks.