I'd like to congratulate our trial team led by Alan Fisch and Joseph Drayton of Kaye Scholer, assisted by Jason Hoffman, Bill Sigler, Jeffrey Saltman, Caroline Brownlie, Patrick Lee and legal assistant Bryan Watkins at their trial offices at the Hub (did I mention we rent office space to trial teams?) with paternal advice from Bruce Sostek of Thompson Knight and a certain local counsel for a successful result on behalf of our client Pier 1 Imports in the Alexsam v. Pier 1 Imports, 2:08-cv-00015 case tried in Judge Michael H. Schneider's court in Marshall - actually Judge Schneider's first patent case, and the first trial in Marshall since Judges Ward and Everingham retired last month.
The jury found none of the five claims in the two patents asserted were infringed, but that the patents were not proven by clear and convincing evidence to have been anticipated by the one reference asserted. Damages sought before the jury were $2.25 per gift card for $26.1 million (defendant's damages expert proposed 5 cents per gift card which would have been about $550,000) but the jury didn't reach the damages question.
Alexsam v. Pier 1 Imports is Judge Michael H. Schneider's first patent case in Marshall, and the first of two of Judge Everingham's cases set for trial in October which Judge Schneider stepped in to keep the docket running during the interim between judges Ward/Everingham and Gilstrap/Payne. He starts the second, a truck wreck case, tomorrow.
In what I still think was a practical joke, Judge Everingham gave the parties 15 hours a side to put on their evidence (candidly, we're used to less than that), and at trial the plaintiff took 14:34, and the defendant used 8:37. Make a note of that - the prevailing defendant voluntarily used less than nine hours. All of the exhibits were preadmitted before Judge Everingham handed the case over to Judge Schneider, and only one exhibit was subsequently even offered - and it was admitted by agreement. The parties combined for two objections to the final charge (technically there was a third, but it was a renewed objection to one term from claim construction). The verdict form was the usual three questions, and not counting lunch the jury was out 2 1/2 hours.
Interestingly this is the second trial by plaintiff Alexsam involving these patents this year. In Alexsam v. IDT, tried in February, Alexsam obtained a jury verdict of $9 million in Judge Everingham's court. Notable, however, was that most of the accused products were deemed to infringe by Judge Everingham as a result of discovery misconduct by the defendant in that case (see Judge Davis' comment in today's Texas Lawyer to the effect that there are two ways to lose a trial in the Eastern District - through discovery misconduct or at trial). I do not have a definite number, but it is my understanding that the lion's share of that damages award was for the products deemed admitted.
Oddly, this is actually the second split set of verdicts this year - as readers know, earlier this spring Tyler juries split for plaintiff Bedrock, finding that Google infringed and assessing $5 million (plaintiff asked for $183 million), but a few weeks later that Yahoo! (I believe it was) did not.
This is actually Pier 1's lead counsel Alan Fisch's second time on the winning team in Marshall for a defendant - three years ago he and Sam Baxter succeeded in obtaining a jury verdict invalidating the plaintiff's patents on electrical connectors in Cooper Technologies Co. v. Thomas & Betts Corp. before Judge Everingham.
For those interested in win streaks, that's two defense wins in patent cases since July's plaintiff win in Convolve - which marked the end of a three win streak preceded by a defense win. And that was preceded by a plaintiff's win, so as I count it four for the plaintiff and three for the defense on liability thus far for the second half of 2011. (The first half of the year I show eight plaintiff wins and one defense win on liability - defense wins on damages are harder to quantify, but I think about a third of the plaintiff wins are what I'd characterize as defense wins on damages).