Same client, same court, same counsel for plaintiff, same result.
Weil Gotshal IP litigation partner Matt Powers (Northwestern BA ’79, Harvard JD ’82) has lost another Microsoft infringement case in Texas.
It was a city mouse v. country mouse matchup, and not surprisingly, the country mouse won in the country.
Details after the jump.
The trial pitted Powers, a Weil, Gotshal & Manges partner in Redwood Shores, Calif., who’s often considered to be one of the country’s top patent lawyers, against Douglas Cawley of Dallas’ McKool Smith. The two have shown contrasting styles, according to lawyers who have faced them: A tall Texan, Cawley speaks slowly with a slight twang and comes off as a gentleman. Powers has an erudite and sometimes imperious style.
Frankly, it took guts for Microsoft to stick with Powers, considering his recent history. Going into the trial, Zusha Ellinson (she also wrote the Recorder piece) wrote at Legal Pad
You might think that Matt Powers would be as welcome as skunk at a lawn party down in the Texas courtroom of Judge Leonard Davis, after Davis tacked on an extra $40 million in damages against Powers’ client Microsoft in part because of his “improper arguments” and then Powers very pointedly called out Davis in his appellate brief in October.
That’s a pretty strong show of faith: sticking with the lawyer whose behavior apparently cost an extra $40 mil.
Unfortunately, it didn’t work out. Again.
The jury concluded late Tuesday that Microsoft willfully infringed on patents held by VirnetX, and awarded the Scotts Valley, Calif., technology licensing company $105.8 million. The company, which had been asking for $242 million, will now seek an injunction.
Of course, if Powers couldn’t win, maybe nobody could. But with two resounding losses and the $40 million kicker, how likely is it Microsoft will give him a third shot?
Powers may not be having the best luck at trial lately, but if you consider a settlement a win (even when you’re on the paying side), he gets credit for negotiating a $900 million settlement for Samsung a few months ago. And as The Recorder notes, this comes amid a bit of a sea change in the “rocket docket.”
Before the i4i case, both Powers and Microsoft had found success in the Eastern District of Texas, which is perceived as more plaintiff-friendly than other venues. Powers and Microsoft won a big jury trial against patent licensing company Acacia Research in 2007, a time when even fewer defendants prevailed in Texas. Last year, represented by Fish & Richardson, Microsoft won a case on summary judgment against Fenner Investments.
Microsoft should have plenty of cash, since it did its first debt offering a little over a year ago and still hasn’t made any headline-grabbing acquisitions with the money.
