Opening statement frameworks for patent cases
Patent infringement trials are perceived by many to be dry and technical. Yet, many attorneys manage to move the jury with a compelling story that results in a significant damages award. Reading their opening statements, it’s clear that their structure falls within one of three categories:
The first category is the “inventory story.” This approach structures the opening statement around the story of the inventor and the “aha moment” preceding it. The structure is compelling because it’s in consonance with how ordinary people perceive how inventions come about. The approach was masterfully utilized in Voxer v. Meta (Case No. 1:20-cv-00655, WDTX), wherein the plaintiff’s attorney told a compelling story of a Yale-educated inventor who, while working as an special forces communications sergeant, came up with a patented invention concerning “live messaging” technology “on the battlefield of Afghanistan following 9/11.” The plaintiff allege that Meta’s video streaming offerings infringed these patents. After 2.5 hours of deliberation, the jury awarded $174.5 million in running royalties.
The second category is the “technology story.” These opening statements tell a story about the societal value of the patented technology. This approach is most often utilized by non-practicing entity (NPE) plaintiffs hoping to move the jury to conclude that the just result is requiring the defendant to pay their fair share for using the NPE’s ground-breaking technology. The approach is also consistent with the public’s perception that a patent is only granted for highly valuable inventions deserving of the property right. This approach was used in PanOptis v. Apple (Case No. 2:19-cv-00066, EDTX) with a story about the value of LTE technology generally, and the value of plaintiff’s patents to the LTE standards specifically. The opening statement told the story of how every company but Apple acknowledged the value of PanOptis’s patents, so it’s only right for Apple to have to pay too. The trial resulted in a verdict of $506 million (and then retried the following year, resulting in $300 million verdict).
The third category is the “good guy vs. bad guy” story. This approach works best when the defendant has not only refused to license a patent but has acted in bad faith during the parties’ dealings, allowing the plaintiff to present a story that highlights evidence that the defendant learned of the value of plaintiff’s intellectual property but never had a genuine intention of paying for it. This was the case in Viasat v. Space Systems (Case No. 3:12-cv-00260, SD Cal.), where Viasat accused Space Systems of feigning interest in a partnership only to relay the information learned about Viasat’s technology to Viasat’s competitor (who later developed an infringing technology for Space Systems). The opening statement hammered home the idea that the jury has the power to right the wrong inflicted on Viasat, resulting in a $284 million verdict ($181 million for patent infringement and $102 million for breach of contract). See Edmond Cahn, 1949, The Sense of Injustice (“the most powerful call is not to do right, but to undo wrong.”).
These approaches highlight the importance of creating a compelling story around any patent infringement trial (and why there is no need for a patent infringement trial to be a dull affair).
