Patent Litigation 2011

Transcription

1 Satisfy Your CLE Requirements! Patent Litigation 2011 San Francisco, September 19-20, 2011 Live Webcast, September 19-20, October 13-14, 2011, November 14-15, 2011 New for 2011! An in-depth exploration of joint/multiple infringement litigation Trends in ITC practice Why is patent litigation so expensive? Fact and fiction in jury trials: what gets through to the jurors? Current trends in patent damages in the post-uniloc environment Special Features Direct and cross-examination of a technical expert using visual aids at trial Ethical issues in patent litigation: 1 hour of ethics credit! Do You Know There Are 5 Ways To Attend PLI s Programs? See inside for details... 왘왘왘 Register Online at or Call (800) 260-4PLI

2 Patent Litigation 2011 San Francisco, September 19-20, 2011 Live Webcast, September 19-20, October 13-14, 2011, November 14-15, 2011 Why You Should Attend Rapid changes in patent law require practitioners, whether plaintiff s or defendant s counsel, to be up-to-date on the current state of the law and to develop successful litigation strategies and tactics. Whether you are plaintiff s or defendant s counsel, attend this annual program to ensure that you are up-to-date on the current state of the law and on how to develop successful litigation strategies and tactics. Patent Litigation 2011 is taught by a faculty of outside and in-house lawyers who have earned national reputations in patent litigation by trying a wide variety of bench and jury patent trials, and provides comprehensive coverage of every phase of a patent lawsuit. Through lecture and demonstration, you will be able to hone your patent litigation skills in just two days! The program schedule has been totally revised, based on comments from prior year attendees at this popular annual program, and many new sessions have been added to address hot topic developments over the last year. What You Will Learn New for 2011! An expanded opening session focusing on the impact of new case law on patent litigation, including recent Supreme Court and Federal Circuit decisions An in-depth exploration of issues of joint/multiple infringement Growing trends in ITC practice Why is patent litigation so expensive? An analysis of the expense of patent litigation and strategies to effectively manage these costs Strategy and tactics in concurrent reexamination proceedings Fact and fiction in jury trials: what gets through to the jurors? Current trends in patent damages in the post-uniloc environment Special Features: Direct and cross-examination of a technical expert using visual aids at trial Ethical issues in patent litigation: 1 hour of ethics credit! Who Should Attend Patent litigators and lawyers in patent firms who advise clients in disputes that may lead to litigation; general business litigators whose practice includes patent trials; patent prosecutors whose actions in preparing and prosecuting patents are critical in providing support for the proper claim construction; and corporate counsel who will have the responsibility for supervising patent litigation, interpreting its progress for management and pursuing opportunities for settlement. Live Webcast at The San Francisco session of this program is available live via the web at Print the Course Handbook Submit questions electronically Get real-time education right from your PC! If you have any questions please call PLI s Customer Relations Department at (800) 260-4PLI. R e s e r v e y o u r p l a c e t o d a y, c a l l ( ) P L I.

3 F A C U L T Y Chair: Edward G. Poplawski Sidley Austin LLP S A N F R A N C I S C O A N D L I V E W E B C A S T Bryan K. Anderson Sidley Austin LLP Palo Alto Edward V. Anderson Sidley Austin LLP Palo Alto Philip K. Anthony, Ph.D. CEO DecisionQuest Charles S. Barquist Morrison & Foerster LLP Rachel M. Capoccia Alston & Bird LLP Chair: Vera M. Elson McDermott Will & Emery LLP Menlo Park, California Marc A. Fenster Russ August & Kabat Mark A. Flagel Latham & Watkins LLP Sandra S. Fujiyama Sidley Austin LLP David I. Gindler Irell & Manella LLP Jeanne M. Gills Foley & Lardner LLP Blake B. Inglish Managing Director\ Intellectual Property FTI Consulting Craig R. Kaufman Freitas, Tseng, Baik & Kaufman LLP Redwood Shores, California Denise L. McKenzie Kirkland & Ellis LLP Terrence P. McMahon McDermott Will & Emery LLP Menlo Park, California Matthew C. Rainey Vice President, Chief IP Policy Counsel Intellectual Ventures, LLC Bellevue, Washington Mark A. Samuels O Melveny & Myers LLP Gail J. Standish Winston & Strawn LLP John Steele Attorney at Law Palo Alto Robert Greene Sterne Sterne, Kessler, Goldstein & Fox P.L.L.C. C H I C A G O Nichole Andrighetti Nelson Mullins Riley & Scarborough LLP Greenville, South Carolina David L. Applegate Williams Montgomery & John Ltd. Sharon R. Barner (Former Deputy Director, USPTO) Foley & Lardner LLP Ahmed J. Davis Fish & Richardson P.C. R. David Donoghue Holland & Knight LLP David J.F. Gross Faegre & Benson LLP Minneapolis Christopher G. Hanewicz Perkins Coie LLP Madison, Wisconsin Brent A. Hawkins McDermott Will & Emery LLP Beth D. Jacob Schiff Hardin LLP Neil C. Jones Nelson Mullins Riley & Scarborough LLP Greenville, South Carolina Mark L. Levine Bartlit Beck Herman Palenchar & Scott LLP John A. Marlott Jones Day Cherylyn Esoy Mizzo Fish & Richardson P.C. Wesley O. Mueller Leydig, Voit & Mayer, Ltd. Danielle Anne Phillip Brinks Hofer Gilson & Lione Jonathan E. Retsky Winston & Strawn LLP J. Bruce Schelkopf Chief Counsel and Executive Director IP, President Cummins Intellectual Properties Inc. Cummins Inc., Law Department, Intellectual Property & Innovation Indianapolis Joseph E. Shipley Fitch, Even, Tabin & Flannery Rett Snotherly Investigative Attorney Office of Unfair Import Investigation, United States International Trade Commission Michelle M. Umberger Perkins Coie LLP Madison, Wisconsin Chair: Christopher K. Hu Dickstein Shapiro LLP N E W Y O R K C I T Y George E. Badenoch Kenyon & Kenyon LLP Elaine Herrmann Blais Goodwin Procter LLP Boston Carolyn H. Blankenship Vice President, Associate General Counsel, Intellectual Property Thomson Reuters Gil Calvillo, Ph.D. Owner & President, Jury Consultant & Clinical Psychologist Calvillo & Associates David J.F. Gross Faegre & Benson LLP Minneapolis Gerard A. Haddad Dickstein Shapiro LLP Constance S. Huttner Vinson & Elkins LLP Suann Ingle Suann Ingle Communications Eric J. Lobenfeld Hogan Lovells US LLP Denise L. Loring Ropes & Gray LLP George L. Murphy, Jr. Kilpatrick Townsend & Stockton LLP Atlanta C. Edward Polk, Jr. Foley & Lardner LLP Jonathan D. Putnam, Ph.D. Vice President Charles River Associates Boston Bert C. Reiser Latham & Watkins LLP Andrew L. Schaeffer Corporate Counsel & IP Leader Electronics & Communications Technology, DuPont Legal E.I. du Pont de Nemours and Company Wilmington, Delaware Hon. Mary Pat Thynge Magistrate Judge United States District Court, District of Delaware Wilmington, Delaware Jeffrey T. Zachmann Counsel Corporate Litigation IBM Corporation Armonk, New York Program Attorney: John M. Mola

4 P R O G R A M Day One: 9:00 a.m. 5:00 p.m. Morning Session: 9:00 a.m. 12:30 p.m. 9:00 Program Overview SF & WEB: Edward G. Poplawski CHI: Jeanne M. Gills NYC: Christopher K. Hu 9:15 Recent Developments in Patent Law and Their Impact on Patent Litigation The opening session provides a review of the most important decisions of the Supreme Court, Federal Circuit and District Courts of the past year and their effects on patent litigation. Key trends and developing patent law doctrines will also be covered. SF & WEB: Craig R. Kaufman CHI: Jonathan E. Retsky NYC: Elaine Herrmann Blais 10:15 Networking Break 10:30 Trends in ITC Practice This session will address considerations in seeking relief for patent infringement from the International Trade Commission instead of, or in addition to, filing an action in Federal District Court. It will also focus on the considerations and trends in seeking relief from the ITC, including time to judgment, injunctive relief as the only form of relief available, and increased use of the ITC by foreign complainants. Significant rulings in recent cases will be covered. SF & WEB: Mark A. Samuels CHI: Ahmed J. Davis, Cherylyn Esoy Mizzo, Rett Snotherly NYC: Bert C. Reiser 11:30 Why Is Patent Litigation So Expensive? NPE and Managing Multiple Co-Defendant Cases Examination of the reasons that patent litigation is expensive will be discussed. In addition to looking at the factors that make single plaintiff/single defendant patent cases costly, this segment will also analyze the reasons that multi-defendant cases add another dimension of complexity and cost, including: Joint defense/indemnification issues Interaction/coordination among multiple co-defendants Increased discovery and motion practice Possible inconsistent positions among co-defendants Possible severance/transfer of one or more co-defendants Joint or individual representation of co-defendants Views from outside counsel, inside counsel and the bench will be shared. SF & WEB: Rachel M. Capoccia, Marc A. Fenster, Terrence P. McMahon, Gail J. Standish CHI: John A. Marlott NYC: Carolyn H. Blankenship, George L. Murphy, Jr., Hon. Mary Pat Thynge 12:30 Lunch Break Afternoon Session: 1:45 p.m. 5:00 p.m. 1:45 Statutory Patent Reform and PTO Rules Changes Patent reform legislation has been under consideration for years, but recent indications are that a patent reform bill may actually come up for passage. This session will review what is in the proposed legislation and how it will or will not affect existing substantive and procedural patent litigation practice. Significant PTO rules changes will also be reviewed, as well as: How any of the new PTO changes may affect patent litigation practice in the district courts What s in the bill and what s not Is federal jurisprudence keeping up with the increased monetization of patents and licensing/litigation activities by non-practicing entities? What role, if any, will the FTC s March 2011 Report play on patent litigation policy issues and actions by the courts? SF & WEB: Matthew C. Rainey CHI: Sharon R. Barner, J. Bruce Schelkopf NYC: Denise L. Loring 2:45 Parallel Patent Reexaminations Accused infringers have increasingly sought reexamination of patents asserted against them either before or during litigation. Factors to consider in deciding whether to seek reexamination will be covered, including updated data and statistics on PTO reexamination proceedings. This session will also focus on the effects of a reexamination proceeding on litigation, including stays, collateral estoppel effects and intervening rights. PTO procedures for ex parte and inter partes reexamination in the PTO will also be explained. SF & WEB: Robert Greene Sterne CHI: Danielle Anne Phillip, Joseph E. Shipley NYC: Andrew L. Schaeffer 3:45 Networking Break 5 Ways to Attend PLI s Programs: Live Programs Attend the program with other attendees and ask the speakers questions from the floor. Ideal if you want the live experience. Live Webcasts View the live program from your home or office and watch the streaming video on your laptop or desktop, ask questions electronically, view or print the Course Handbook, and, if you have to miss any of it, you have access to the archived portion for one year. Ideal if you can t travel and still want to benefit from simultaneous live viewing of the program.

5 S C H E D U L E Day Two: 9:00 a.m. 5:00 p.m. 4:00 Fact and Fiction of Jury Trials Trials of complex patent cases before lay juries have always been controversial, and much conventional wisdom as to how juries think and act has developed. This session covers the realities of patent jury cases and examines what is fact and fiction with respect to patent jury trials. Speakers will include both trial counsel and jury researchers. Some topics for discussion will include: How do jurors really perceive the patent system and the USPTO? How do jurors view foreign litigants, both those from other countries as well as those from other U.S. states? David v. Goliath cases: do jurors views change depending on the relative size of the parties? Burdens of proof: do jurors really understand the differences between the preponderance of the evidence vs. clear and convincing burdens of proof? Infringement, invalidity, and unenforceability: how do jurors weigh the evidence on these issues? Experts: how do jurors really view expert witnesses in patent cases? SF & WEB: Philip K. Anthony, Vera M. Elson, Mark A. Flagel CHI: David J.F. Gross NYC: Gil Calvillo, Constance S. Huttner, Suann Ingle 5:00 Adjourn Morning Session: 9:00 a.m. 12:15 p.m. 9:00 Opinion Letters, Willful Infringement and Exceptional Case This session will discuss the related topics of willful infringement, exceptional case, and the need for opinion letters. Since Seagate Technology, many patent practitioners predicted that opinion letters were generally no longer necessary. Subsequent decisions, however, do not necessarily support that prediction. The need for opinions, the role of opinions in the willfulness analysis, and the issue of whether a case is exceptional, in either direction, will be covered. SF & WEB: Charles S. Barquist CHI: Nichole Andrighetti, Neil C. Jones NYC: Jeffrey T. Zachmann 10:00 Patent Damages Recent Federal Circuit and District Court decisions reflect a trend towards damages awards based less on application of rules than on evidence of actual harm sustained. This session will cover recent cases on damages including the Federal Circuit s Uniloc decision, which rejected 25% of an infringer s anticipated profits as a rule of thumb for a reasonable royalty, and the string of cases in which the entire market value rule has been more strictly applied. Other cases on both lost profits and reasonable royalty damages will be analyzed. SF & WEB: Blake B. Inglish, Edward G. Poplawski CHI: R. David Donoghue, Beth D. Jacob NYC: Gerard A. Haddad, Jonathan D. Putnam 11:00 Networking Break 11:15 Dealing with Experts Expert witnesses play a critical role in patent litigation with respect to both liability and damages issues. Selection and use of testifying and non-testifying experts, the use of experts at Markman hearings, the development of expert opinions, the preparation of expert reports, and the discoverability of drafts and communications with the expert and materials considered by the expert will be reviewed. Also considered are the usages of evidentiary motions, including Daubert motions and other motions in limine, to exclude or limit expert testimony at trial. SF & WEB: David I. Gindler CHI: Christopher G. Hanewicz, Michelle M. Umberger NYC: Eric J. Lobenfeld Groupcasts Bring a PLI program for group viewing directly to your conference room. Enjoy the live streaming video and receive the best legal education from our expert faculty. All while training more people for less money, in the privacy of your own office setting. CLE Now Web Segments/Programs PLI anywhere, anytime you want it right from your PC. MP3/Audio CD/DVDs Watch or listen to PLI s programs in the comfort of your home or office. 12:15 Lunch Break Visit for more details.

6 Please plan to arrive with enough time to register before the conference begins. A networking breakfast will be available upon your arrival. Program Attendees Save 35% on These Treatises: Afternoon Session: 1:45 p.m. 5:00 p.m. 1:45 Joint or Multiple Infringement In recent years, there have been a number of important decisions relating to joint infringement or indirect infringement involving multiple entities. Recent cases following the Federal Circuit s 2008 Muniauction decision have clarified the law on infringement of a method claim where not all the steps of the claimed method are performed by one entity, and the relationship between the entities necessary for a finding of infringement. The Global-Tech case that came before the Supreme Court on the standard for inducing infringement, as well as other cases on indirect infringement, will be discussed. SF & WEB: Denise L. McKenzie CHI: Wesley O. Mueller NYC: George E. Badenoch 2:45 Networking Break 3:00 Expert Direct/Cross Demonstration The direct and cross-examination of an expert presents a special challenge because it requires a balancing of the need for simplicity and clarity, and the need for a full and complete record of complex technical facts and opinions for post-trial motions and appeal. This session will include a discussion of the factors to consider in structuring the direct and cross-examination of an expert witness, including the use of demonstrative exhibits and other visual aids, as well as a demonstration of effective techniques for direct and cross-examination. SF & WEB: Bryan K. Anderson, Edward V. Anderson, Sandra S. Fujiyama CHI: David L. Applegate, Mark L. Levine NYC: David J.F. Gross 4:00 Ethical Issues in Patent Litigation In-house and outside counsel face ethical issues in patent litigation at every step of the process, from pre-suit Rule 11 compliance, throughout the discovery process, and continuing through to trial and appeal. The sometimes fuzzy boundary between ethical transgression and zealous advocacy will be explained. USPTO ethical rules that apply to practitioners licensed by the USPTO even when practicing in another forum will also be addressed. SF & WEB: John Steele CHI: Brent A. Hawkins NYC: C. Edward Polk, Jr. Patent Licensing Strategy Negotiation Forms Mark S. Holmes (CEO, PatentBridge LLC, Menlo Park, CA) 1 looseleaf volume, 866 pages, $295 $ (Updated annually or as needed: No charge for revision issued within 3 months of purchase) Patent Litigation Edited by Laurence H. Pretty (Law Office of Laurence H. Pretty, ) 1 looseleaf volume, 871 pages, $295 $ (Updated annually or as needed: No charge for revision issued within 3 months of purchase) Visit the PLI Bookstore the day of the program to receive your discount! 5:00 Adjourn PLI s Nationally Acclaimed Course Handbooks All program attendees will receive a copy of the Course Handbook Patent Litigation 2011, either in two bound volumes or on a flash drive. The Course Handbook is prepared specifically for this program and also stands alone as a permanent reference. PLI s Course Handbooks represent the definitive thinking of the nation s finest legal minds, and are considered the standard reference in the field. The Course Handbook will be available on the first day of the program. Please note: Webcast attendees will have access to a downloadable version of the Handbook one business day prior to the program.

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8 Practising Law Institute Patent Litigation 2011 R E G I S T R A T I O N / O R D E R F O R M When Registering, Please Refer to Priority Code: LCZ1 Make necessary corrections on mailing address. YES, please register me for the following session: Patent Litigation San Francisco Seminar,* September 19-20, 2011, PLI California Center, $1, Seminar,* October 13-14, 2011, University of Gleacher Center, $1, Seminar,* November 14-15, 2011, PLI New York Center, $1,595 2 Live Webcast,* September 19-20, 2011 (Register online prior to first day of program - #29824), $1, Privileged Member Fee: $ Course Handbook only, either 2 bound volumes or flash drive, $ Patent Licensing Strategy Negotiation Forms, 1 1 looseleaf volume, $ Patent Litigation, 1 1 looseleaf volume, $295 My address is: Please send me updates on PLI programs and services. * Includes Course Handbook, in either bound volume or flash drive format. Webcast attendees will have access to a downloadable version of the Handbook one business day prior to the program. 1 All treatises require prepayment and can be returned within 30 days for a full refund. FREE Shipping and Handling on all Audio CD/DVD and Treatise purchases. PLI will pay shipping and handling charges on all prepaid Course Handbook orders in the United States, U.S. Possessions and Canada. California, Florida, Illinois, Maryland, Massachusetts, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Texas, Virginia and residents please add applicable sales tax to price of Publications and Audio CD and DVD products. Please check if you are a PLI Privileged Member. Please send me information on PLI Membership. Please send me PLI s catalog of Publications. Please send me PLI s catalog of Institutes and Programs. The information below is required to properly process your CLE certificate: State: Bar ID# State: Bar ID# State: Bar ID# $ check enclosed (Payable to Practising Law Institute) Bill me PLI Privileged Member Please Charge to: Visa MasterCard American Express Diners Club Credit Card No.: Exp. Date: Signature Required: Phone No.: PRIORITY CODE: LCZ1 8A500 Practising Law Institute 810 Seventh Avenue New York, NY NON-PROFIT ORGANIZATION U.S. POSTAGE PAID PRACTISING LAW INSTITUTE Name Title Firm Address (Use Street Address for UPS Delivery) City/State/Zip Phone Fax