This week's Litigator of the Week crown goes to Quinn Emanuel Urquhart & Sullivan partners Jim Asperger, Kevin Johnson and Bill Price, who convinced a Los Angeles federal jury that Apple and Broadcom owe the California Institute of Technology $1.1 billion for patent infringement.

It's the biggest jury verdict to date of 2020, and the sixth-biggest patent verdict ever, according to the firm. 

After a two-week trial before U.S. District Judge George Wu in the Central District of California, the jury took less than five hours to decide Apple and Broadcom infringed three Caltech patents related to Wi-Fi chip technology. They ordered Apple to fork over $838 million and Broadcom to pay $270 million.

Asperger, Johnson and Price discussed the win with Lit Daily.

Lit Daily: Who is your client and what was at stake?

Jim Asperger, Kevin Johnson and Bill Price: Our client is the California Institute of Technology. Caltech is a small non-profit university in Pasadena, California, and is one of the leading scientific and technology research universities in the world. Its professors and students have won 39 Nobel prizes. Its contributions to science and its inventions are often years and even decades ahead of their time.  

Like most universities, it does not track the use of its research and inventions in the commercial world, but instead is focused on teaching, research and the advancement of knowledge.  

In this case, a Caltech professor, Bob McEliece and two of his graduate students, Hui Jin and Aamod Khandekar in early 2000 came up with a way to send information better, faster and with less battery power. Their invention was the culmination of decades of research in the error correction field, and ultimately proved years later to have commercial value in many fields, including Wi-Fi.  

In this case, what was at stake was seeking to obtain a fair royalty from defendants Apple and Broadcom for their use of Caltech's revolutionary technology in their products, including Apple's iPhones, iPads, computers and many other devices used by over 1.5 billion consumers since 2010.

Tell us a bit about the technology at issue and your approach to presenting such complex material to the jury. 

The patents cover encoders and decoders that transmit and receive a groundbreaking type of error correction code that the inventors called an "Irregular Repeat and Accumulate Code." It is a type of Low Density Parity Check ("LDPC") Code.  

These error correction codes enable information like high definition videos, photographs, movies, TV shows and other large data files to be streamed over Wi-Fi, error free, faster, over greater distances and using less battery power.  

Our approach was to explain to the jury how important the invention was in a practical and understandable way. While the jury may not have realized iPhones, iPads and laptops use this specific technology initially, we carefully explained the benefits and simplified the technology so the jury could understand it.  

Our fact witnesses and technical expert provided tutorials on the invention using simplified graphics.  We also put together a technology tutorial video for the jury that was shown at the beginning of trial, and we prepared simple and understandable graphics to show how the technology worked.

Who was opposing counsel?

Wilmer Hale—specifically Joseph Mueller, James Dowd, Mark Selwyn and Mindy Sooter.

Who were the members of your team and what individual strengths did they bring to the representation?

Our key strengths included many years of trial experience—collectively we have tried well over 100 jury trials—and a collaborative team approach where we were singularly focused on how best to tell Caltech's story to the jury. The collaborative nature of our team effort was reflected in our closing argument—the three of us split it three ways.  

As for what we each brought to the case, Jim WAS Caltech and presented Caltech to the jury through witnesses who were able to talk about the university, the inventors, and the importance of the invention. When the jury thought of Caltech they thought of Jim.  

Kevin in addition to his extensive trial experience had experience in this technical area, allowing him to present a clear picture of this complicated technology through our expert witness, and stand toe-to-toe with and eviscerate their not-so-independent expert on infringement (see below).  

Bill has a "barrister-type" role in the firm, working with the trial team to focus themes and witness presentations. Bill focused on opening, presenting one of the inventors, cross-examining the key defense fact witness, and the "opening-closing" argument.  

Jim and Kevin then brought the case home in the rebuttal closing and played to their strengths in doing so—Jim focusing on Caltech and damages, and Kevin on the technology and infringement.

The team also included partners Brian Biddinger, Todd Briggs, Edward DeFranco, and Rachael McCracken.

What was your overarching theme in the litigation? 

This was a great invention that was years ahead of its time and revolutionized Wi-Fi performance in products sold by defendants such as iPhones, iPads, iMacs, and other devices used by consumers every day, and defendants were ignoring Caltech by not paying a fair value for its use.  

In addition, we explained that Caltech was focused on presenting a clear description of the infringement and damages issues in the case while the Apple and Broadcom were focused on trying to confuse the jury on those same issues.  

Apple said it was "merely an indirect downstream party." How did you persuade the jury that the company should be on the hook for infringement?

Apple products and its customers benefited greatly from the invention. In fact, Apple's and Broadcom's own documents confirmed important improvements in the performance of their products, including greater throughput, transmission at greater distances, and the use of less battery power.  

Apple and Broadcom ultimately required that the technology be used in their products because of the performance boost. The performance boost matters to consumers, and the Caltech technology has helped Apple sell the highest quality products to its customers.  

To what extent was validity an issue? Did prior PTAB proceedings largely take this off the table?

Correct, validity was not an issue at trial. The court ruled the IPR proceedings resulted in the defendants not being able to contest validity at trial.

Did you make any unconventional strategic choices in litigating the case?

We realized the technology was complex, and that jurors might have trouble following the technical testimony and deciding which of the infringement experts—Apple and Broadcom's two experts or our one expert—to believe. And confusion was our enemy here.  

So we asked the jury to make it a simple question of "Who do you trust?" We asked the jury to use their common sense to decide the simple question of which side was trying to confuse and mislead them.  

That meant focusing hours of effort to make sure that our expert explained the technology as simply as possible, in a sincere, non-advocate kind of way. And attacking the credibility of their experts.  

One turning point in the case was when one of the Broadcom witnesses referred to another defendant's expert as an "independent" expert.  On cross examination we showed this "independent" expert has been testifying for Apple and Broadcom on their cases for almost 15 years. The representation that the expert was "independent" was not credible.  

We consistently attacked the credibility of the defendants' positions and statements. One of the highlights was the cross-examinations of defendants' two infringement experts. Each of these experts submitted an identical 200+ word paragraph in their respective "independent" and under oath expert reports that admitted to key elements of infringement, but they later each filed identical, word-for-word "corrections" to their respective reports that changed their positions to claim non-infringement.  

Fortunately, we had a great expert, and defendants experts gave us many opportunities to establish that they weren't playing it straight.

CalTech is a non-profit. What might an award like this mean to the university?

The funds Caltech recovers will go to research, development, the advancement of knowledge for more great discoveries to help the world, as well as to financial aid for talented students who don't have the resources to attend Caltech.