VLSI v. Intel: A Look Back
We’re generally leery of too-definitive “What does it all mean?”-type analysis. But we also assume that most of the (presumably mostly) lawyers reading this publication are doing so with a forward-looking view: i.e., if you were the advocate or the client appearing in front of Judge Albright, what would you want to know? So here’s an attempt to present some potential “lessons learned” from the VLSI v. Intel trial. For some other similar content (though we try to minimize repetition here), check out our thoughts from the MV3-Roku trial in October 2020, plus Mark’s earlier observations following Day 3 coverage last week.
Let’s get to it:
- “Waco Juries”: Is the prototypical “Waco jury” the October 2020 jury that reached a verdict of non-infringement and awarded zero damages in MV3 v. Roku, or this week’s jury that gave VLSI a (but-for-willfulness) complete victory? It’s still too early, and we have too few patent-trial data points to tell (though we hope to cover the most recent jury verdicts in another post). But case filings in Waco arguably show a slight downturn between October and February, and this recent verdict can likely be expected to arrest, or even reverse, that trend.
- Judge Albright doesn’t want to be the story during trial: On Day 1, Judge Albright described his role to the jury as that of umpire, and noted that the jury should draw no inferences from his objection rulings, and should base their determinations on only the evidence presented. To that end—given the minimal (though non-zero) number of mid-trial bench conferences held under the Court’s COVID protocols—Judge Albright’s interactions with counsel in ruling on objections were generally quick and to the point. So make sure you have your best arguments ready to go, in as few words as possible. (That’s good advice for everything litigators do, of course.)
- Motions in limine, Part 1: We covered this during MV3 v. Roku, and it still holds true: “MIL rulings aren’t about so-called ‘magic words’—they’re about how a sensitive subject matter should be generally treated, and the need to raise a proposal to address that subject matter with the Court in advance.” After some MIL-adjacent lines of questioning on Day 1 of trial (by both parties—hinting at total volume of Intel’s until sales by VLSI, and VLSI’s NPE status by Intel), Judge Albright called in lead counsel for a private conference in chambers at the end of the day. Obviously it’s speculation on our part, but it wouldn’t be at all surprising if the Court discreetly delivered a similar reminder.
- Motions in limine, Part 2: With that said, Judge Albright’s MIL rulings are often tentative. And on multiple occasions when the parties properly raised MIL-related or MIL-adjacent topics without the jury present, Judge Albright said that he would have to wait and see how the issue was raised in the context of a witness’s examination. MIL practice is still important in Judge Albright’s Court—and if nothing else is an opportunity to send a message to opposing counsel to take care—but parties should still be prepared to be flexible.
- Deposition transcripts:
- We’ve already covered (follow the links up top) Judge Albright’s approach to deposition testimony used for impeachment—i.e., do it strictly “by the book.”
- And to either quote or lightly paraphrase Judge Albright’s approach to deposition testimony presented to the jury in lieu of live testimony: “You should assume that I will overrule almost any objection unless it’s one that I would sustain if the witness were here in person.” So to junior associates exchanging designations and objections during pretrial exchanges, you’ll do best to keep your objections focused on “really substantive” issues.
- The Court is liberal about use of additional transcript sections under the doctrine of optional completeness on redirect, so as to allow the presenting party to rehabilitate a witness following, e.g., a cross-examination that might have selectively presented prior deposition testimony.
- Assuming a proper use for the testimony, the Court prefers to put deposition testimony in front of the jury to read, as compared to counsel reading it into the record.
- Exhibit admissions: This is partly drawn from the recent trial, and partly from Judge Albright’s comments thereafter: The Court wants the parties to keep their house in order regarding exhibits, and timely raise objections. i.e., If an exhibit is shown to the jury without contemporaneous objection, it’s going to be formally admitted to the record, regardless of post-examination arguments. The Court also prioritizes substance over form: So if an exhibit was clearly displayed to the jury on a slide, even though the number wasn’t stated on the record, it’s also likely in.
- “Retroactive” objections: The same “no backsies” principle as above applies to testimony and argument that the jury’s already heard. This came up at least a couple times:
- VLSI filed a “Renewed MIL” directed to Intel’s re-cross examination of VLSI’s expert Dr. Conte in connection with some of Dr. Conte’s prior expert engagements. (Joe discussed this exchange with Scott Graham of Law.com (subscription required).) The Court denied VLSI’s motion, though limited Intel to referencing only what happened on the stand in this case, telling VLSI: “If I admitted something over your objection, it’s in evidence, and I won’t prevent a party from referring to what’s in evidence.” (As always, as close a paraphrase as notes allow.)
- Following summations and dismissal of the jury, Intel objected to a couple lines of argument presented in Mr. Chu’s summation. Again, the Court confirmed it was too late to do anything with respect to the jury: “I looked to see if you’d object during the closing, and you didn’t.”
- Lay technical witnesses: Per the Court’s comments relating to the testimony of Intel’s engineers, “one of the hardest things I deal with” is drawing the line between a party’s technical fact witness explaining how a product works, and expert testimony. The Court was not, though, bothered by similarities between Intel’s lay witness’s trial demonstratives and Intel’s technical expert’s demonstratives. Ultimately, this is a tricky issue that Intel navigated, as best as we observed, successfully (e.g., questioning referred to “processors like the ones you personally worked on”). But parties should be aware that the Court is very alert to the potential difficulties that may arise—and also know that this issue plays both ways, as when the Court sustained Intel’s objection to VLSI’s cross-examination of an Intel engineer that started to tread close to (an alleged lack of) non-infringement analysis.
- Rebuttal: In both MV3-Roku and VLSI-Intel, Judge Albright allowed the plaintiff’s rebuttal case to revisit, to a limited degree, issues on which the plaintiff bears the burden of proof. i.e., The rebuttal case was not limited solely to rebutting the defendant’s validity case. But such rebuttal testimony was still restricted to responding to arguments actually raised during the defendant’s case.
- Jury instructions: The jury-instruction charge conference, although open to observation by the public (unlike MV3-Roku, when it occurred in chambers), was held off the record, so we’ll share just a couple high-level observations:
- If a party’s only objection to the other party’s proposed language is that it’s not necessary, it’s probably coming in, barring a showing that it’s redundant/duplicative as appearing elsewhere in the instructions.
- All else being equal, the Court was also unsurprisingly inclined to stick with the version of an instruction delivered in MV3-Roku.
- Courtesy to counsel: Judge Albright’s approach to trial, as with many issues, is flexible, and informed by his own experience in private trial practice. Knowing that Intel’s lead counsel Bill Lee had a hard stop at the end of day on Monday March 1, Judge Albright kept proceedings moving—including keeping the jury till as late as 6 or 6:30PM on multiple trial days—to ensure both parties could present their full cases. Judge Albright also deliberately held the charge conference on Friday evening, since the parties wouldn’t have to be in court the following morning.
- Courtesy to the jury: Judge Albright generally tries, based on best available information, to give the jury an accurate preview of that day’s proceedings. But the Judge, although generally patient about letting parties present their cases as they choose, occasionally delivers thinly veiled hints to counsel when they should move along. My favorite exchange along those lines came at the very end of Day 3, on Dr. Sullivan’s third round of cross-examination (again, paraphrased as accurately as contemporaneous notes allow):
Mr. Lee: I have one more question.
Judge Albright: I don’t believe it’ll be just one more question.
Mr. Lee: I’m going to take that bet, so I can win it. [He did.]
- Public access: The Court’s decision, primarily motivated by the COVID-19 pandemic, to telephonically broadcast proceedings to the public provided an invaluable opportunity for lawyers of all seniorities to observe and learn from two trial teams that both knew how to put on a well-organized and convincing case. Will that level of remote public access continue in a post-COVID world? TBD…
And with that, we’re done (and tired). If you want to walk back through all of our substantive VLSI-Intel trial coverage, we brought you:
- Voir dire and Day 1 (Mark)
- Day 2, plus a look back at pretrial docket action (Joe)
- Day 3 (Mark)
- Pre-Day 6 preview (Joe)
- Day 6 and closing arguments (Mark)
- The jury’s verdict (Mark)
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The WDTX Patent Blog appreciates the assistance of Tim Dewberry in mulling over some of the ideas herein.
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