Welcome to Skilled in the Art. I'm Law.com IP reporter Scott Graham. I hope you all enjoyed your holiday weekends (unless you were working on TROs). Here's what's cracking as we start the new week:

• How Kirkland & Ellis scored a $765 million verdict while expanding DTSA law.

• VMWare calls on Wilmer's Bill Lee AND Seth Waxman as it tries to dig out from a $236 million patent verdict.

• Oracle EVP takes a big swing at Google's amici curiae.

As always, you can email me your feedback and follow me on Twitter.

Kirkland & Ellis partners, from left, Adam Alper, Brandon Brown and Michael De Vries.

 

Long Trial, Quick Verdict in $765 Million Win

I think of the typical IP trial as going two weeks, maybe three weeks tops. The Apple v. Samsung "trial of the century" of 2012 was only 24 days, openings to verdict.

Kirkland & Ellis and client Motorola Solutions just spent 3 ½ months trying trade secret and copyright claims against digital mobile radio competitor Hytera. And it took only 2 ½ hours for jurors to render their verdict: $764.6 million.

"The jury began deliberating at 10:00" on Friday, said Kirkland partner Adam Alper, who gave Motorola's closing argument. "They sent out a note asking for, essentially, Motorola's punitive damages number. And as soon as they got that number, around 12:25, they came back with a verdict at 12:30."

The damages cover Hytera sales worldwide. In what Kirkland describes as a first, U.S. District Judge Charles Norgle of Chicago ruled that the Defend Trade Secrets Act (DTSA) applies extra-territorially, so long as there's some nexus to misconduct in the United States. "And we have that in spades," said Kirkland partner Michael De Vries, another member of the trial team.

Norgle has scheduled a hearing Friday on Motorola's application for a TRO enjoining all worldwide sales of infringing Hytera products pending a permanent injunction. Down the road, Motorola will also be looking for attorneys fees and an accounting for damages up to trial.

Chicago-based Motorola had accused four former engineers of downloading confidential documents, including proprietary source code for digital mobile radios, before joining Hytera between 2008 and 2010. Shenzhen, China-based Hytera argued that Motorola waited too long to act on its suspicions.

It took a few years because Hytera carefully schemed to cover its tracks, the Kirkland lawyers said Tuesday. The company made just enough tweaks to the stolen source code to throw off investigators examining their products, partner Brandon Brown said. "You have Hytera documents laying out the plan, where they literally talk about the tests that Motorola will run to see if there's been source code theft," Brown said. "Then you look at the Motorola side of things, and you see they ran that exact test and it failed because Hytera had taken steps to fool the test."

Alper attributed the verdict to not only the breadth of Hytera's theft and its profits, but also the unapologetic manner in which it presented its case. "We had told the jury, you just can't let the message go out to the world that that's OK," Alper said.

Over the weekend, Hytera posted a statement on its corporate site saying it respectfully disagrees with the verdict and intends to appeal. "Hytera has enhanced its corporate governance and added new policies and procedures related to intellectual property and the onboarding of new employees," the statement says. "In addition, Hytera is engaged in an ongoing process of removing the affected source code from the products at issue and has been rolling out updated software to the marketplace."

De Vries said he appreciates the acknowledgment that impropriety occurred. "Of course, what we alleged and what the jury found is far worse" than improper training of employees, he said. "We put on evidence that confirmed that the corporation engaged in what the jury found to be willful and malicious conduct warranting punitive damages."

So how did the trial team celebrate the holiday weekend following this behemoth trial? Alper and De Vries are based on the West Coast, so they got to fly home and spend some time with their families. But that wasn't all. "We all got to write an application for a temporary restraining order," De Vries cracked.

Wilmer partners Seth Waxman, left, and Bill Lee.

 

Who Got the Work?

➤ Cirba v. VMWare VMWare has called on Wilmer Cutler Pickering Hale and Dorr to try to dig it out from a $236 million patent infringement verdict in Delaware federal court. Wilmer appellate honchos Bill Lee, Seth Waxman and Thomas Saunders entered their appearances in Cirba v. VMWare on Wednesday.

VMWare, which was represented by Morrison & Foerster at trial, is facing an uphill battle. U.S. District Judge Leonard Stark, who presided over the trial, set out his tentative views on post-trial motions Feb. 10, saying "I expect it is unlikely I am going to be persuaded by VMWare to alter the verdict."

➤ Sonos v. Google Google has chosen Quinn Emanuel Urquhart & Sullivan to defend patent infringement allegations by home audio company Sonos, at least at the International Trade Commission. Quinn partners S. Alex Lasher, Marissa Ducca, Jared Newton, Charles Verhoeven, Sean Pak, Justin Griffin and Lance Yang noticed their appearances for Google and parent Alphabet last week. Sonos is represented by Orrick, Herrington & Sutcliffe and others.

➤ SMTM v. Apple Apple is calling on Goldman Ismail Tomaselli Brennan & Baum to defend patent infringement allegations over the "Do Not Disturb" feature on Apple mobile devices. Backed by Cotchett Pitre & McCarthy and others, inventor and Bay Area restaurateur Nick Bovis says he patented an app for preventing distracted driving in 2015, two years before Apple rolled out Do Not Disturb.

A Goldman Ismail team featuring partners Kenneth Baum, Mike Pieja, Alan Littmann, Doug Winnard and Lauren Abendshien answered for Apple last month, arguing that Nokia had the idea before Bovis did.

 

Oracle Exec Rips Microsoft, IBM, CCIA for Supporting Google

It sounds as if Oracle might be feeling a little amicus envy at the Supreme Court.

An Oracle newsroom blog post under Executive Vice President Ken Glueck's name insinuates—no, make that comes right out and charges—that Google has bought some of its tech industry amici, while accusing others of switching sides out of naked self-interest.

Even by the acrimonious standards of Google v. Oracle, which will be heard March 24 at the Supreme Court, Glueck's attacks are notable.

His argument is that the tech industry isn't really supporting Google, even though Microsoft, IBM and the Computer and Communications Industry Association (CCIA) have submitted amicus briefs in support.

Microsoft is "the original sinner" when it comes to Java, Glueck writes, referring to the DOJ antitrust action against Microsoft in the 1990s, which included anticompetitive conduct toward Java (then owned by Sun Microsystems). Microsoft filed an amicus supporting Oracle's side in 2013 before the Federal Circuit, but then in 2015, it struck a peace deal with Google on IP. "What changed Microsoft's stance in this litigation was that commercial agreement," Glueck writes. "Microsoft's position is as principled as that."

IBM also tried to get its hands on Java in 2009, but Sun eventually chose to be acquired by Oracle. IBM has been silent each time the case was before the Federal Circuit, but now—having just completed its $34 billion acquisition of Red Hat, "IBM really wants its own, non-compatible version of Java for its own commercial purposes," Glueck writes.

Finally, there's the bordering-on-bizarre thrashing of CCIA, an organization Glueck says "sets a whole new standard for transactional advocacy" and is "completely beholden to Google, financially and otherwise." That's in part because Microsoft paid off one of its former executives, according to Glueck. I don't follow the logic, but Glueck insists that as a former CCIA board he knows whereof he speaks.

CCIA president Matt Schruers had this response in a written statement: "CCIA's pro-interoperability fair use stance has remained constant since the 1990s, when it was developed with Oracle's support, as a CCIA member. It is regrettable that what was once a mutual position has now become inconvenient for the company."

In any event, Glueck says in his blog post, "there is no outpouring of support" from the tech community for Google.

So far, there's not much outpouring for Oracle, either, though amici have until tomorrow to submit their briefs. To date the highlight is from the Internet Accountability Project (IAP), a conservative think tank formed last fall to basically rain shit on Google, Amazon and Facebook.

Authoring IAP's brief is Kellogg, Hansen, Todd, Figel, & Frederick partner John Thorne. As recently as last year Thorne was general counsel for the High Tech Inventors Alliance, which includes Google, Amazon and Oracle.

Thorne and IAP trace the history of fair use law back to Justice Joseph Story, arguing that Google's copying of Java declaring code cannot be fair as a matter of law because it replaced Oracle's use in the marketplace.

That's all from Skilled in the Art today. I'll see you all again on Friday.