We just have to wait and see what Markman ruling is.
When a client is paying a law firm, most law firms will take a case whether they believe they will win or lose. Win or lose, law firm always makes money; doesn't matter to them. They will, however, advise against suing if the merits just aren't there, and then leave the decision to the client whether to proceed. If there’s zero merit, the law firm will often disengage the client and walk away so to avoid a summary judgment and being brought up on contempt for bringing frivolous matters to the court and wasting its time.
It's my understanding, however, that Sussman took this on a contingency basis. It DOES matter if they win. Sussman is putting its own billable hours and cost of expenses on the line, a considerable amount of money. Why take this case when they could use those billable hours and costs on lucrative cases (paying clients)? The litigating partner is responsible to his fellow equity holders (other partners), so he's not going to take World's word for it.
Since Sussman is not a firm which has patents attorneys that regularly write and prosecute patent applications in the US Patent and Trademark Office, they undoubtedly hired an outside patent firm with those types of attorneys who analyzed the claims from a technical standpoint and prepared an infringement opinion to see if there’s merit. Those patent attorneys often have higher degrees in their field, many previously worked at the US Patent and Trademark Office as examiners, and they know how to determine whether there’s infringement. Since Sussman took a year to decide to take this case, my guess is they had at least 2 infringement opinions prepared by different firms, and already retained expert witnesses who provided their opinions, as well.
There are patent litigators out there who aren’t so great at calculating risks of contingency cases, and/or who are willing to accept very high risk on the gamble they might win, but Sussman seems a little more grounded having some notable wins on its table, another reason I bought some shares.
From my perspective, it’s a much better gamble than a lottery ticket. They just might win.
