I'm attending the 45th Annual Intellectual Property Law Conference today and tomorrow at the Center for American and International Law in Plano, Texas. The conference is led by conference co-chairs Elisabeth A. Evert (Founding Partner, Hitchcock Evert LLP, Dallas) and Bart Showalter (Partner, Baker Botts L.L.P., Dallas).
As nice as my hotel is, it did drop my wake-up call and take forever to get a cab, so I managed to miss the first presentation by Pete Peterson on Recent Development in Patent Law. Pete's presentations are, well, encycopedic is the adjective that comes to mind, with this one weighing in at 562 pages - the table of contents alone was 23 pages. (No, I'm not joking). Next Eric Robinson of McKool Smith subbed in admirably for Evelyn Montellano of Ericsson on Patent Reform Legislation: Waiting for Our Ship To Come In, which he admitted at the outset was a retread of the presentation he did as part of the Eastern District Bench Bar's Patent Rules "early bird" panel. Erick went through the details of the pending legislation, sometimes keeping a straight face (which is hard to do when you discuss the effect that some of the provisions would have, some of which are no doubt intended, and some of which are probably not. Erick also gets bonus points for mentioning my name during his presentation.
Next came Scott Breedlove of Vinson & Elkins in Dallas on Will Seagate Stem the Tide of Privilege Waiver which was a good discussion of this issue.
Next up was Bart Showalter of Baker Botts on The Rise (And Demise?) of the Super Troll. Bart claims the term "super troll" and talked about the ST as a business model. Annoyingly, Bart had phenomenal cartoons and artwork of patent trolls (actually several) and their characteristics which he didn't include in his materials so I can't post it here (and probably wouldn't anyway, since I don't think the pejorative nature of the term is very helpful to discussing the pros and cons of the business model). But they were the best I've seen - real D & D stuff. Anyway, Bart went through what's a troll, the rise of trolls, and the future. He had a very entertaining presentation on some recent trolls (Orion, Patriot Scientific, Solaia, Katz, etc). Then he went through "super trolls" and the factors (in 2005) that created them, and made them a rising business model - and a very good one (mentioning newer ones such as Wi-LAN and Acacia) that is gaining increasing ground in corporate circles - because it is potentially very lucrative. Bart also made the critical point that one of the factors that went into the creation of trolls and now super trolls was actually tort reform, which put skilled trial lawyers that used to handle personal injury cases onto the street, and looking for another field. In some cases (and this is me talking, not him), these attorneys traded injured persons, whose rights in some states (such as Texas) have been substantially eroded for small companies or investors looking the maximize the value of their IP portfolios. (Wonder if some companies wish they just had PI cases to worry about again?)
As for the future, the recent trend of legislating from the bench - cases such as KSR, eBay, In re Seagate etc. have drastically limited the value of this business model. Whether Congress does anything or not, these cases have effected a major change in the profitability of patent portfolios wielded by non-practicing entities. Brad also talked about some other potential defenses. Overall a very, very informative (and entertaining) presentation.
Bart was followed by Hilda Galvan of Jones Day in Dallas on MedImmune Fallout - Pre-Suit Investigation for Declaratory Judgment Actions. No troll cartoons, unfortunately, but it was fun to watch Hilda talk about the SanDisk v. ST case with Brice Sostek as moderator next to her (inside joke - Bruce represented ST and Hilda's firm represented SanDisk).
Lunch is a hosted luncheon sponsored by Slater & Matsil and Vinson & Elkins following which Tom Goldstein of Akin Gump Strauss Hauer & Feld, who argued on behalf of Teleflex in the Supreme Court in the KSR case spoke. One interesting point he made was that the Roberts court is really interested in circuit splits affecting business interests (arbitration, punitive damages, etc.) because of the difficulties national companies experience when rules vary from circuit to circuit. Really funny talk about what's going on on the Supreme Court, and a lot of good insights into the KSR case, the Supreme Court and the Supremes' attitude towards the Federal Circuit.
The afternoon will begin with Tom Tarnay of Sidley Austin (no pic available, sorry Tom) discussing Indemnification and Exhaustion Issues in Patent Licensing: Recurring Scenarios and Practical Advice. The highlight of the first day for many (and for me one of the few that I actually understood) will be the patent judges panel moderated by Bruce Sostek of Thompson & Knight What You Really Want (Need) To Know About Practicing Patent Litigation In Federal Courts in Texas. Panelists are Judges David Folsom of Texarkana, T. John Ward of Marshall, and Barbara Lynn of Dallas. (I'm not completely sure the attached photo is actually of them - I didn't recall Judge Ward having a mustache - but it's close enough, and I don't think they'll complain). By the way, I didn't know that Judge Ward has his own page on Wikipedia. (I skimmed it briefly and much of its numbers are a year out of date - but it's a good article otherwise).
Judge Lynn reported on the Northern District of Texas' adoption via a "pilot order" of patent rules, which IP lawyers had requested, but that it still declined to assign all patent cases to certain judges, so there was still less predictability as whether a case would land with a judge who had substantial interest or expertise in patent cases. The issue of the role of magistrate judges was discussed, as is the ED judges' impression of the patent rules. (Judge Ward told the story of how he came up with the patent rules - he went looking for the ND Cal rules after a hearing in a patent case in which the parties had not conferred before a Markman hearing and it turned out they agreed on all but one or two terms. He reiterated that patent cases need more structure than ordinary cases, and Judge Folsom agreed, indicating that he felt the rules made his job managing patent cases much easier than it had been before).
Judge Ward reiterated that lawyers in patent cases argue too much about things that he doesn't believe really matter. He also declined to identify any particular patent rules as generating controversy - when he's sanctioned people in patent cases it's because of basic just not wanting to turn stuff over, not patent rules. (Ed. note - learned that one way to get out of a trial setting with Judge Ward is to have a conflicting setting with Judge Lynn - she will call Judge Ward up and ask him to let the lawyer out so they can make her trial setting!) Judge Folsom agreed about conflicts and mentioned that he requires a meet and confer in personal with local counsel present, and that that seems to have reduced disputes. Judge Ward mentioned that he has started requiring meetings between lead lawyers (starting in products cases) when it is apparent that the parties aren't meeting adequately. He also indicated that he's serious about preserving a privilege if one is actually present - and that he handles his own htline calls - and there aren't many. Judge Lynn says she's heard some, but that they never sound as bad in the retelling - so make sure it's on video.
Bruce Sostek brought up Markman hearings, and Judge Ward reiterated that he lets parties use their time however they want, and if people want to waste their time calling experts, it's their time. He likes tutorials he can watch (over and over, if necessary) on his computer, as opposed to live ones. Judges Ward and Folsom both do not like lawyers reading their briefs - that qualifies as a burr under their respective saddles. The issue of limiting numbers of claims came up, and Judge Folsom noted that he's limiting plaintiffs to limit to about 50 claim initially and then to 10. He thinks he has solid authority on that from the Federal Circuit, but there's nothing equivalent on claim terms. On the claim limit, he said it's a result of endurance - no jury, judge, or staff can stand more than that. Judge Ward noted that he recently limited the number of claims shortly before trial - to seven he thought, in a case that settled before jury selection. "Simplify and teach" was Judge Folsom's suggestion for Markman presentation, and noted that the time limits were to get the lawyers to focus on the real issues. Judge Lynn thinks she needs more help understanding technical issues, and so she asks more questions and thinks she needs longer.
Bruce asked what advice the judges could give on summary judgments, and Judge Ward noted that he may get a stack of nine motions, instead of the rifle shot motion, and the scatter-shot approach isn't as effective. Judge Lynn mentioned that she gets told all the time that "it'll save a lot of time Judge if you'll rule on this" and it really isn't true. Partial SJs give her very little incentive. Again, if you have a focused, unique issue as opposed to the generic motions on the merits, that's different. And, extremely late SJs filed right before trial are very unlikely to get reached before trial - so keep that in mind when you're filing these agreed motions to extend the dates for SJ briefing. Judge Folsom says that cases can be tried without all this motion practice. maybe the lawyers are engaged in CYA, but "you're losing your good arguments with your bad ones". Same thing with motions in limine.Judge Lynn had one other practical point - make your type font bigger on your slides, because the associates that are making these up make them so small that middle-aged judges can't read them. ("One word per page" was not necessarily a bad idea - have someone sit in the jury box ahead of time and see what they can see).
Bruce asked about general trial tips, and Judge Folsom said to be brief and to the point - that's what juries tell him. Juries resent lawyers making a point over and over. Judge Lynn talked favorably about time limits on trial, and suggested that letting juries ask questions is a good idea (she also likes interim summations). Judge Ward says he allows jury notebooks with things like the patents, the claims constructions, etc. upon agreement. Judge Folsom emphasized that credibility is crucial particularly when technology is complex. Be pleasant, courteous and professional. Don't be disrespectful to the judge, opposing counsel, or witnesses. Judge Ward emphasized not snapping at the person operating the trial technology in front of the jury - the jurors identify with that person, not you.

The afternoon's remaining sessions were focused on licensing, not litigation, so I won't detail those here.