Recently, a small software company, i4i Limited Partnership, won a patent infringement lawsuit against Microsoft Corporation. i4i was awarded Two Hundred Million Dollars ($200,000,000.00) in compensatory damages plus Fifty Million Dollars ($50,000,000.00) in post-verdict damages, prejudgment interest and post-judgment interest. Yes indeed, folks, a quarter of a BILLION dollars. This, in itself, is a joyous and newsworthy item. But, it gets even better.
During jury selection, one of the defense attorneys asked prospective jurors, “[i]f somebody felt that the patents were being used in a wrong way, not to protect a valuable product but a wrong way, could you find that patent invalid or non-infringed?” The trial judge, out of the prospective jurors’ presence, advised counsel that this was a misstatement of the law, and said he would “appreciate it if you would clean that up.¹”
Counsel agreed to do so. However, as the judge later wrote in his decision, “[d]espite this admonition, Microsoft’s trial counsel continued to misstate the law and directly appeal to the jurors’ perceived prejudices” (emphasis added). Counsel topped off his performance when, during closing arguments, he (again quoting the judge) “improperly [tried] to equate i4i’s infringement case with the current national banking crisis implying that i4i was a banker seeking a ‘bailout’.”
After the jury returned its verdict, the judge tacked on ANOTHER Forty Million Dollars ($40,000,000.00) as a result of defense counsel’s misconduct. I wonder how counsel explained THAT to his client.
THE LESSONS TO BE LEARNED: (1) When the trial judge tells you to do something, you better do it; and (2) if you’re going to appeal to a jury’s perceived prejudices, do it INDIRECTLY.
¹ The trial was in Texas, where the judges and local attorneys are polite. Microsoft’s counsel was from “out of town.”