Power Outage

Matt Powers of Weil Gotshal’s Silicon Valley office is one of the biggest names in IP. It would have come as something of a shock that he got knocked out in his recent defense of Microsoft in the Eastern District except for two words: Sam Baxter.

Lawdragon has been following the best of the best among lawyers for going-on five years now and without exception, McKool Smith’s Baxter keeps setting the pace for IP trial teams. (Yes, he’s human and has lost too, but the former judge consistently stands out.) http://www.mckoolsmith.com/professionals-19.html and http://www.lawdragon.com/index.php/newdragon/lawyer_profile/95041#

Now the ABA Journal reports that not only did Microsoft get tagged for $290 million for infringing a patent held by Baxter’s client, i4i, it also got nailed with a $40 million penalty for willful infringement AS WELL AS trial conduct by Powers. http://www.abajournal.com/news/microsoft_judge_chastises_weil_lawyer_for_bailout_dig/ 

According to the judge, Powers misrepresented the law to the jury.http://blog.seattlepi.com/microsoft/library/20090817i4imemo.pdf

The problem began when Powers asked jurors during voir dire about their reaction to a scenario in which a company sues, not to protect a patented product, but just to get money, the ABA Journal reported. U.S. District Judge Leonard Davis warned Powers outside the presence of the jurors that ‘I think you’re sort of misstating the law, and I don’t want to embarrass you in front of the jury. But I would appreciate it if you would clean that up.’ ”

According to the opinion, Powers did not catch the caution sign. “Throughout the course of trial Microsoft’s trial counsel persisted in arguing that it was somehow improper for a non-practicing patent owner to sue for money damages. He further persisted in improperly trying to equate i4i’s infringement case with the current national banking crisis implying that i4i was a banker seeking a ‘bailout.’

Powers has had no comment on the decision.

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