Protecting intellectual property is critical to incentivize innovation. Companies that are making large investments in research and development to fully develop new medicines and technology are finding themselves parties to high-stakes lawsuits involving products, product lines or huge sums of money. In the past six months, Sidley’s patent litigation group has won two such cases, with teams from both coasts, and outlines three important lessons from its work on these matters:
- Your trial theme must be simple — and must appeal to the head, heart and gut. Complex cases, particularly technology cases, present special challenges for a fact-finder. The terminology can be obscure; the technical concepts can be difficult to grasp. It is therefore important that your trial theme be overarching and simple and that it address every major issue in the case. And your trial theme must also appeal to the three bases on which fact-finders decide a case: Is the result intellectually correct (head), does it seem fair (heart) and does it make common sense (gut)?
- Battle-harden your witnesses. Trials can be won or lost in the cross or direct examination of a single witness. There is no substitute for rigorous witness preparation — whether that’s through mock cross-sessions or in practicing the direct so that it is compelling and seamless. Your witness preparation should be harder than anything a witness will face in court.
- Stay true to the facts. In the end, trials are about credibility. All of your witnesses need to hew tightly to the facts — even the uncomfortable ones. The same goes for your trial lawyers. Credibility is hard to achieve and easy to lose.
By using these strategies, in February Sidley achieved the largest biopharma jury verdict in the history of the District of Delaware and one of the largest jury verdicts ever in that court. In another case earlier this month, Sidley won a two-week federal biopharma patent trial in the District of New Jersey that caused its client’s market capitalization to increase by $10 billion. Not every firm can handle such cases, and very few firms can deliver those sorts of results back to back.
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