BulletProofBlog the blog on crisis communications

In this regular feature, Bulletproof interviews top plaintiffs' attorneys for their perspective on the crises likely to affect businesses in the near future. Today we talk to Doug Cawley, a principal in the Dallas office of intellectual property powerhouse McKool Smith. Mr. Cawley was in the news lately when an Eastern District of Texas jury awarded $200 million to his client, the Canadian software company i4i, in a patent infringement dispute over Microsoft Word's use of extensible markup language (XML) to process electronic documents.

What trends does your success at trial in i4i Limited Partnership v. Microsoft Corp portend for companies, both defendant and plaintiffs?

Doug Cawley: The jury decision in the i4i case is a powerful reminder that, while the pendulum in intellectual property cases has been swinging toward defendants as a result of a number of recent court rulings, there are still plenty of opportunities to present the right case on behalf of plaintiffs.

Also, when you look at this particular case, it' s a pointed example of how internal records and communications can decisively affect the outcome. We discovered a trove of emails among Microsoft people discussing our client' s intellectual property. There was talk in those emails about making i4i' s XML obsolete. Jurors are influenced by that kind of admission, and may be more responsive to the plaintiff' s claim as a result.

That kind of online back-and-forth…it' s something companies are still struggling to educate their employees about.

What industries are on your radar screen these days?

Doug Cawley: Specific industries notwithstanding, I don' t believe that the current trend toward restricting patent rights will swing dramatically in the other direction any time soon. Quite to the contrary, I anticipate that the retrenchment will continue.

That said, the pharmaceutical industry is still a fertile area for new growth in patent litigation. Also, I expect the biotechnology sector to present a lot of litigation in the short term. On the one hand, biotech as an industry is reaching new levels of maturation. As such, their portfolios are increasingly attractive targets for infringers. At the same time, patent infringement cases are still bet-the-company problems for matured companies in that area.

Did your firm open an office in Washington, DC in response to current or anticipated changes in your practice?

Doug Cawley: There were a number of strategic reasons prompting that move, not the least of which was that we had an opportunity to hire lawyers there with a very strong practice before the International Trade Commission. Today, the ITC is handling three times as many cases as it was at the start of this decade. With accelerated globalization, those numbers will continue to accelerate.

The ITC is justly respected for its even-handed deliberations. Yet there is some advantage there for plaintiffs (or "petitioners," as they' re designated at the Commission). The ITC isn' t just fair; it' s also fast - and speed is, in general, something that plaintiffs' firms typically want. (It can also mean a more level playing field since larger companies cannot endlessly delay cases or paper them to death.)

The growing prominence of ITC cases for plaintiffs' lawyers cuts across industry boundaries, but we' ve been seeing some concentration of cases involving the telecommunications and electronics industries. 

Larry Smith is Senior Vice President of Levick Strategic Communications and a contributing author to Bulletproof Blog.