Greetings and welcome to Skilled in the Art. I'm Law.com IP reporter Scott Graham. On a brief trip to San Francisco last week I had the pleasure of sitting down to chat with Marilyn Hall Patel, the former chief judge of the Northern District of California, and her former law clerk Kassie Helm, now an IP life sciences partner at Dechert in New York. We discussed the state of women in IP law, including Judge Patel's pioneering practice of encouraging senior partners to entrust their junior partners and associates with more featured roles in the courtroom. Below are excerpts of our conversation. Plus, I've got a quick look at copyright lawsuits filed Thursday that accuse Google and Amazon of turning a blind eye to brazen music piracy, and a recap of Cooley's six-years-in-the-making patent victory for Nintendo of America.

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Retired U.S. District Judge Marilyn Hall Patel, left, and Dechert partner Kassie Helm.

 

How Judge Patel Kicked Off a Youth Movement

Kassie Helm: You had the practice in your court, which now has become a little more formalized, you were one of the pioneers of it, of having incentives for more junior lawyers, either women or diverse attorneys, or people who might not get the opportunity …

Patel: I never made it one of my local rules, but—it was very funny one time when we were trying a case, the woman on the team—it wasn't a patent case—but I could see she was kicking her senior partner, who wasn't jumping up and doing whatever he should have been doing. And so finally I just said, you know, why don't you let her proceed with it? She seems to know the case pretty well.

Graham: Did they agree?

Patel: Yes, they did. And she did a great job.

Helm: You had a reputation, Judge [William] Alsup also, people knew that he did that.

Graham: Still does, right?

Patel: He actually embodied it in a local rule.

Helm: Now it's become more common, and several district courts have done it. I think it's great. I've used it to inform clients, this is why you should put a junior, a mid-level, let them argue that motion or this smaller thing.

Patel: Sometimes, they're the one that knows the case. And the senior partner comes wheeling in with all the grandeur of that title, and has no clue what's going on. There are some clients that are very traditional and want the older senior partner, even though the senior partner doesn't know a thing about the case.

Helm: True. I think it's an education …

Patel: Well, it's an education across the board. Law firms are so afraid of their clients. It's intimidating, when you think you might lose a client because you make a decision that isn't related to the merits of the case.

Helm: Well, I think it's incumbent upon the law firm then to explain why it is related to the merits of the case. The person that you should be supporting to run that litigation, argue that motion, take that deposition is the one that knows it best. And that your informal practice of the person behind passing the Post-it notes to the person in front who might not know all the details—that's happening.

Patel: Who should take the laboring oar here? Does it fall to the court to say, "OK, we've got a new regime here?" It should be everybody. But ultimately, it seems to me the court does have a responsibility to say something.

Helm: I think it's wonderful that the court says something. I think it gives the law firm extra credibility to the client. It's a carrot and not a stick. More minutes and argument.

Patel: Even now, and I'm glad it's working out well for you [Kassie], but I think for a lot of women still, over the general patent field, they are still sort of looked at as second wheels. Is it changing?

Helm: It's changing, but it takes a long time to change. At law firms, the level of attrition for women is very high. And if people don't figure out how to combat that, you're never going to have enough women at the higher ranks that are doing those jobs.

I remember several years ago when I was an associate, not at Dechert, someone was giving us a talk about partnership, and they were touting how X-many women had been in the partnership class that year, which was higher than it had been the year before. And they said we're hoping that there'll be a time when there's gender parity in the partnership class. And then someone else said, you know, if every law firm started making every class of partners 50% women, we would still not see gender parity in the firm partnerships in anyone in this room's lifetime. Just on the numbers, that's how long it's going to take.

Graham: Is [attrition] about family issues or other reasons?

Helm: I certainly think there are many other reasons. One thing that's improving quite rapidly about family issues is that they're becoming non-gender specific. Most of the policies at law firms now, parental leave, anyone can take it, lawyers and non-lawyers. And I think culturally, more and more men are taking them.

Last year I was staffing a litigation, and there was a mid-level associate, a man, who I thought would be great on the case. He had experience in the jurisdiction the case was going to be brought in. And I called him and said, "This is a great client. This is going to be a great matter. I'd really like the chance to work with you. I think you'd be great on this case. I hope you can do it."

And he said, "Thank you so much for thinking of me. I'd be honored and it sounds wonderful. I should let you know, my wife and I are expecting, and I plan on taking the full [three-month] leave. So if that affects your staffing decision I totally understand."

And I kind of paused. And I thought, really, there's only one way to respond here. "Number one, congratulations. That's absolutely wonderful. That's far and beyond the best news. Number two, of course I'd love to have you on the team. And number three, see you in 2020."

It was difficult because I had to staff someone in on the interim. The client had to get to know multiple different people. He had to get caught up to speed and then you're paying for someone else to do all sorts of things. And that's how it is.

Patel: How difficult is it to accommodate those situations if you have two or three people that fall in that same category?

Helm: Well, you just have to do it. It has to become a cultural norm. Because if it's not, then men will not think it's OK to take the parental leave even if it's non-gender specific. Every person who does it makes it OK for the next one.

Graham: One thing that hasn't changed a lot. In the busiest patent districts in the country—between Delaware, the Eastern District of Texas, the Central District of California—there are very few women among the district judges hearing patent cases. The Central District of California patent pilot program, all six of the district judges are men.

Helm: I did have a number of cases in the Central District of California before Judge [Mariana] Pfaelzer, before she passed. And she was known for supporting women. She had several cases where I know that lawyers went out of their way, because they thought it would be helpful in front of the court, to put women on the trial team, either local counsel or leading the team. That was more an instance of informality, it wasn't in her local rules. But that got women some roles in the court. That probably got me some arguments I might not otherwise have had.

Judy Garland's version of the Ray Henderson song Just a Memory, from her 1957 album Alone, is presented on Google Play by Limitless Recordings International, left, and by Capitol Records, right, per the allegations in Ray Henderson Music Co. v. Google.

 

I Only Have Rights for You

Google, Amazon and a couple of obscure music distribution companies were targeted Thursday with copyright suits accusing them of "flagrant" pirating of music ranging from Judy Garland to Miles Davis. The music publishing companies that own the rights to compositions by Ray Henderson and Harry Warren are suing Limitless International Recordings and Valleyarm Digital Limited. They're accused of reproducing the songs without authorization and selling downloads of them on Google Play and Amazon.com at half the going rate—often alongside legitimately licensed versions. The alleged infringers even go so far as to reproduce much of the original cover art with a gray border that conveniently blocks out the true music label's name, the suits allege.

"The scope and scale of Defendants' piracy operation cannot be understated," the complaints state. "Defendants have, on occasion, flagrantly bootlegged entire artist or label catalogs."

The complaints were filed in the Northern and Central Districts of California. Allen Hyman of the Law offices of Allen Hyman in North Hollywood; Philip Mann of the Mann Law Group in Seattle; Oren Giskan of Giskan Solotaroff & Anderson of New York and Brian Levenson of Schwartz, Ponterio & Levenson in New York represent plaintiffs Ray Henderson Music Co., Four Jays Music Co. and Julia Riva. Riva is the granddaughter of Warren, who wrote popular standards such as "I Only Have Eyes for You," "Chattanooga Choo Choo" and "That's Amore." The plaintiffs accuse the tech giants of turning a blind eye to the piracy, even as commenters on their websites have questioned the authenticity of the downloads. "Valleyarm and Google chose to ignore the evidence of piracy and to participate in the infringement on a massive scale," one of the complaints states.

I reached out to Orrick, Herrington & Sutcliffe partner Paul Fakler, who's not involved in the case but whose clients have ranged from the Bill Graham Archives to Sirius XM Satellite Radio, for his take on the suits. He notes that digital music services like Google Play and Amazon license many millions of recordings, usually from thousands of different record companies, including aggregators. Those licenses typically include representations and warranties that the record companies have the right to grant the licenses.

"There is obviously no way for a service, which is getting tons of recordings ingested from the record companies on a daily or weekly basis, to do some kind of CSI Palo Alto forensic investigation into whether each recording might be an unauthorized copy," he says. "I am sure that none of these services have any interest in having unauthorized versions of major label recordings on their platforms. They already have the 'real McCoy,' so there is literally no possible benefit to them. But they are large companies with deep pockets."

Fakler senses an attempt to score a large statutory damages award that could dwarf the value of any license—the type of opportunistic lawsuit that the Music Modernization Act of 2018 has failed to rub out, he says.

The absence of the labels that own the recordings is a tell, he says. "The only party even potentially harmed here is the record company," he says. "They are making billions now from the streaming services. So if they became aware of pirate copies on the services, they would likely do something reasonable like let the services know so they could take them down."

 

Cooley's Comeback Win for Nintendo

It's been a week, but I wanted to be sure to mention Nintendo of America's knockout of a patent that had resulted in a $10 million jury award in the Northern District of Texas.

U.S. Patent 6,864,796 discloses a system for evaluating body movement relative to an environment. It was developed with an eye toward monitoring and reporting falls among the elderly, but patent owner iLife Technologies argued that the Nintendo Wii gaming system had adopted the same technology: a processor that senses "dynamic and static accelerative phenomena as a function of at least one accelerative event characteristic."

After six years of litigation that included IPRs, two unsuccessful motions to transfer and a 2017 jury trial, U.S. District Judge Barbara M.G. Lynn agreed with Nintendo that the '796 recites ineligible subject matter. "Overall, claim 1 encompasses a sensor that senses data, a processor that processes data, and a communications device that communicates data, and no further inventive concept is recited to transform the abstract idea into a patent-eligible invention," Lynn wrote in a Jan. 7 order.

I'm gonna file this under "Patent Owners, Be Careful What You Wish For." Now that the Supreme Court has left Berkheimer v. HP undisturbed, more Section 101 motions are going to be carried until after trial, as here. That will surely add settlement leverage, but it's also going to set the stage for some very expensive losses.

The win in iLife Technologies v. Nintendo goes to a Cooley team led by partners Steve Smith and Matt Brigham and associate Dena Chen. Former Cooley attorneys Lisa Schwier, now at Johns Hopkins Technology Ventures, and Stephen McBride, now at Oblon McClelland Maier & Neustadt, also provided counsel, as did Siebman, Forrest, Burg & Smith.

Munck Wilson Mandala represented iLife. There were a couple of silver linings for iLife: Lynn cautioned Nintendo that she's "extremely unlikely to find that this case is exceptional for the purposes of Section 285." And if the Federal Circuit should reverse on Section 101 and reinstate the $10 million award, "the Court cannot say that the verdict was against the weight of the evidence."

That's all from Skilled in the Art this week. I'll see you all again on Tuesday.