For Oracle, Google Lawyers, a Trial by Fire

by

AlexMan

U.S. District Judge William Alsup has tossed a lot of curve balls at the 42 lawyers toiling away on Oracle Corp.\’s giant patent suit against Google Inc. They\’ll probably see a few more as the case makes its way toward a Halloween trial date.

Alsup is a demanding judge lawyers who try to pull a \”dirty trick\” may find him to be their worst nightmare. And he\’s quirky: He has a standing order that rewards litigants willing to send in novice lawyers to argue big-deal motions.

But of probably greater import for the looming tech showdown is that Alsup has become something of an innovator in patent litigation. In recent years, he\’s employed all sorts of methods designed to make what he calls the \”bone crushing\” parts go more smoothly at least for him. The Oracle case, in which the company claims Google\’s Android mobile operating system violates the Java-related patents and copyrights it acquired when it bought Sun Microsystems Inc., may be Alsup\’s boldest experiment yet.

Alsup has already appointed his own damages expert and called for the CEOs to attend settlement talks.

He took a chance on inviting damage reports earlier in the process a move litigators say is rare, and one Alsup seems to have regretted, later writing that Oracle \”overreached,\” compounding damages \”even higher into the billions.\”

In an interview this week, Alsup dismissed the notion that he\’s become a patent-law maverick. \”I\’m as ordinary as the day is long,\” he said. He said he wouldn\’t talk about the Oracle case, but offered a general explanation of how he tries to manage patent cases, what he wants from lawyers, and what he\’s seen in his litigation lab. \”I think I\’ve tried more than my share of actual trials,\” Alsup says of the four or five patent disputes that went to juries in the last half-dozen years. \”I do have some views on how to manage the patent cases.\”

\”Judge Alsup holds himself to a very high bar and holds lawyers to a very high bar,\” says Vernon Winters, a partner at Greenberg Traurig, whose firm is one of three representing Google. \”He holds patent lawyers to a particularly high bar.\”

But Winters echoes many leading patent litigators in the district who say they still like to see Alsup\’s initials stamped on their case.

\”Even if you\’re going to get undressed, it\’s making sure your client is going to get a fair shake,\” says McDermott Will & Emery IP partner Yar Chaikovsky. \”With Judge Alsup, you always have that feeling that he\’s on top of it.\”

Litigators say Alsup\’s approach is anything but ordinary. He was among the first judges in the country to sever defendants in patent suits where nonpracticing entities name multiple entities with little tying the defendants together. Stopping multidefendant suits has been a defense goal, and a ban on them was included in the just enacted patent reform law.

McDermott\’s Chaikovsky says he thinks that when Alsup busted up a multidefendant suit in 2010, he became the first judge in the country to do so.

But Alsup has gone further. He has also refused to relate cases after severing defendants, meaning the suits get spread out among different judges. For practitioners, it means the hassle of dealing with different jurists, each with their own procedures and personalities. In Finisar v. Source Photonics, 10-00032, Alsup explained in an order that spreading the cases was aimed at ensuring a more equitable distribution of patent cases among judges.

\”I get the concept of spreading\” them out, says Chaikovsky. But having one judge handle the Markman hearings in which the parties fight over how terms in the patent will be construed \”is probably a positive for all parties.\”

Alsup also has made waves with his strict limits on claim construction. The value of a case will often hinge on the outcome of the laborious process by which certain key technical terms are defined for an eventual jury. Alsup allows just six terms to be construed before trial the tightest limit among any judge hearing patent cases, lawyers say. Local rules call for 10, a more common number across patent jurisdictions.

\”The more terms you construe, the more likely it is the defendant wins the case,\” says Mark Lemley, a Stanford law professor and partner at Durie Tangri.

Alsup has applied the six-term limit on the Oracle-Google case, even though there are seven patents in dispute, meaning terms will likely need to be construed during the trial. That adds unpredictability, lawyers say.

In addition, claim construction hearings are held early on in the Northern District, so lawyers are forced to choose the six terms before \”you\’ve honed your case,\” says Chaikovsky. \”It\’s tough for me. I\’m sitting atMarkman. … I haven\’t got to the point where I\’ve crystallized the terms I necessarily want to construe.\”

Alsup says there\’s a method to his madness. He thinks only a few terms are crucial. Plus, even when limited to six terms, \”those are still pretty bone-crushing exercises,\” the judge says.

\”I would rather give quality time to a fewer number and have less chance of an error and reversal,\” Alsup says.

Alsup says the limits, along with his general unwillingness to push back trial dates, are aimed at preserving judicial resources. But he enjoys a jury trial.

\”That\’s the American way,\” he says. \”But I will put time limits on them.\”

Alsup\’s reluctance to move trial dates keeps the pressure on lawyers to resolve cases. Michael Jacobs, one of Oracle\’s lead lawyers, says it works. The MoFo litigator handled a trademark infringement suit for Autodesk Inc. before Alsup last year, which he said settled on the night before trial: \”The pressure of jury selection and opening statements and the fact that everybody was in town for all of that to occur created the conditions by which a settlement that both sides could live with could be achieved,\” said Jacobs, co-founder of the firm\’s intellectual property practice.

Time limits aren\’t all lawyers are up against. Some of the judge\’s expectations can at times conflict with what clients want. For instance, Alsup likes to see lawyers concede points and focus on their most winning argument. Alsup calls it the \”Abe Lincoln approach.\” Too often, he says, lawyers want to argue, say, five points instead of having the \”courage\” to select the one that might win.

\”Lawyers don\’t like to give up an argument, so they will keep all five arguments with equal dignity,\” he says. \”I think that is a kind of a shame.\”

Alsup\’s standing orders encourage court time for younger lawyers, and in practice he\’ll ease time restrictions or allow hearings if a party agrees to let a junior associate do the talking.

MoFo sent a second-year associate, Roman Swoopes, to argue Thursday against Google\’s motion for summary judgment on a copyright claim. Alsup ultimately denied most of Google\’s motion. Lawyers appreciate what he\’s trying to do, but say it can be tough to sell it to clients.

\”A massive, high-stakes, high-profile press case may not be the kind of case you want to do that, whether or not the judge is encouraging it,\” Lemley says. \”It\’s a hard business choice for the client.\”

Before joining the bench, Alsup handled some patent cases as a litigation partner at MoFo, so he has high expectations. \”If a lawyer is a fine federal court practitioner,\” Alsup says, \”I am their best friend.\” If not, \”I might end up being their worst nightmare.\”

Most of the lawyers on the docket in the Oracle-Google case probably fall or hope they\’d fall into that first category. In addition to MoFo, Oracle has hired Boies, Schiller & Flexner. Google is represented by Robert Van Nest of Keker & Van Nest, along with lawyers from King & Spalding and Greenberg Traurig.

But Alsup expressed annoyance at the aggressive theories each side has advanced on the question of damages they were \”asking for the moon,\” he told them which is why he decided to bring in his own expert.

So the lawyers might need to tread carefully. \”I like the lawyers to be fair and live up to their word and be fair to each other, abide by the rules and mores of conduct in this district,\” says Alsup. \”As long as they do that, I think we get along swimmingly.\”

Source: http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202516523111

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