Intellectual Property Directions

 Patent litigators are supposed to work in your best interest, to be a guard dog protecting your patent rights, but have they done so when the court gives them a vicious bite, saying they engaged in “abusive advocacy” and “continued this suit vexatiously after the claims were construed”. These attack dogs are now licking their wounds and probably have to assuage their master as well.

In a February 12th District Court ruling, Judge Richard Matsch excoriated Medtronic’s attorneys from McDermott Will & Emery and held both MWE and Medtronic liable for the defendant’s costs. Acting on a motion by Brainlab, Inc., Matsch ruled that the infringement suit brought by Medtronic should have been dropped after he construed the claims in a way unfavorable to Medtronic but MWE’s highly experienced litigators deceptively overcame a motion for summary judgement by claiming “that there were material factual questions to be resolved at trial”, knowing that to be untrue.

Worse in Judge Matsch’s mind, I suspect, was MWE’s behavior during the trial. Time after time, apparently, these attorneys ignored the Court’s claim constructions and

“chose to pursue a strategy of distorting those rulings, misdirecting the jury to a different reading of the claim language“. They also “blatantly present[ed] the jury with a product to product comparison contrary to established law and the Court’s cautionary instructions.” “Additionally, they deceived the jury into accepting the statements in BrainLAB’s FDA application as an admission of patent infringement. Capping all of this was a closing argument that misdirected the jury’s attention from the focus of the case, carefully crafted to avoid the Court’s instructions. That argument distorted both the evidence and the law, misleading the jury into a plaintiffs’ verdict.”

Wow, do you think the judge was unhappy? As if this litany of abusive advocacy was not enough, what put the judge over the top was the argument from MWE that they should not have to pay BrainLAB’s legal expenses because

“the Court had the obligation to stop any trial conduct that stepped over the line of zealous advocacy. In short, they argue that they should not be held responsible for what they were able to get away with during the trial presentation. The adamant denial that there was any abuse of advocacy in this case is in disregard of what this Court has already concluded and displays the same arrogance that has colored this case almost from its inception.”

While singling out the attorneys from WME as being most culpable, they being officers of the court, Judge Matsch also pointed at Medtronic as being at best complacent abettors of this legal strategy. “Such conduct supports the conclusion that after the Markman rulings, Medtronic’s primary objective in pursuing this litigation was to put economic pressure on its competitor in the market.”

So, before you turn the dogs loose remember the ultimate bite may be on your leg.

This entry was posted on Tuesday, February 19th, 2008 at 10:00 pm and is filed under Patent Litigation. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.