Mickey
If you read the Appeals court decision concerning the patents involved in both cases, it does not give one a warm and fuzzy feeling. I am not qualified to make any predictions regarding obviousness or the conduct of the IDCC attorneys in the prosecution of the patents. I do feel comfortable with the revalidation because I believe that to be a real plus for IDCC. I believe that if the jury can skip over validity quickly, then they will lean toward infringement due to the smoking guns.
You are making an assumption that lawyers do not advise their clients regarding the weak points of a case. The assumption is incorrect. Ericy knows it has serious exposure because its lawyers have told them so. However, F&J is not telling IDCC that it has a gut cinch either. It is a war of expert testimony and it is anybody's guess as to who or why a jury will believe one over another.
The case cannot be the cinch that you have concluded or it would have been disposed of in the summary judgment phase and all that would be tried is the damages issue.
Each party is entitled to representation no matter how good or bad the evidence may appear. Sometimes a lawyer is faced with insurmountable facts and he is left with trying to limit the damages as best he can. That does not mean he is engaging in malpractice in representing his client. IDCC may be asking too much and they have no alternative except try the case and attack the damage model.
The law is far more complicated than you are willing to believe. This is not the Judge Judy show. Blocking evidence is the new frontier. I do not like it, but I have to accept it. Who knows how the judge will rule with respect to the proposed trial exhibits. You have to propose them and then be prepared to argue against the numerous objections that the other side will raise. It is no longer a truth seeking mission. It is a war of form over substance and a garden variety of tedious objections in an effort to keep one side from being able to tell the whole story. I am not proud of how the law has evolved, but I guess that people now like to ponder what the definition of "is" is or "obviousness" is.
I would prefer to have the lead counsel in Harris carrying the torch for IDCC, but that does make me right and IDCC wrong. It is not about fee churning. McKool has a reputation to worry about. He is not giving his client bad advice. His client may be just like you and thinks that there is no gray area and he should prevail at trial. You and I are not engineers and we do not know the state of the art at the time the patents were issued. We do not know what was obvious and what was not. We do not know what was proper or improper as far as the prosecution process in getting the patents approved. The jury does not know either and they are the ultimate decision makers.
I hope this rambling can explain the mechanics of the representation of Ericy and IDCC by their lawyers.
MO
loop
AI
