I recently attended and spoke at the Rocky Mountain IP Institute in Denver. It was the second year in a row I have attended and spoken at the Institute. In my opinion, the Rocky Mountain IP Institute is one of the two best IP CLE events (and destinations) in the country. As evidence of that, the following is one of a series of posts from the excellent presentations over the two days of the conference. I encourage you to consider joining me at next year’s Rocky Mountain IP Institute.
This post (cross-posted from my Retail Patent Litigation Blog) discusses Ninth Circuit Judge Alex Kozinski’s advocacy lessons and tips for IP lawyers. It is relatively rare that you get the opportunity to get advocacy lessons from the bench, and Judge Kozinski did not disappoint. His lessons are clear, specific and backed up by concrete examples:
- “Simplify. Simplify. Simplify.” IP lawyers forget how complex the technology can be. It is harder for the Court to understand the law when it does not understand the underlying technology. Concrete examples are important. Move from the abstract to the concrete examples to maintain the readers attention.
- Example Galoob v. Nintendo: Galoob’s appellate brief begins with a story involving a child that grabs the reader’s attention about the Nintendo game system as part of the questions presented to ground a panel of judges that (at the time) likely had never played the video games at issue in the case.
- Words are an abstraction. Use pictures and examples because words are always an abstraction at least one or two levels removed from whatever is being described. Consider the power of the word “ice cream” as opposed to the power of a picture of ice cream.
- Example Fisher v. Dees: Case over parody song called “When Sunny Gets Blue.” The judges were uncertain about the outcome until they got copies of the two songs and listened to them. They knew it was a parody upon listening. The words in the briefs and arguments did not do it.
- Example US v. Adams: Case over a battery used by US in a war effort. At the Supreme Court, Adam’s counsel set up an experiment with the battery. He was asked few questions because the justices were focused upon the light bulb. The experiment worked as counsel was about to sit down and Adams won.
- Avoid claims of disaster. In judges’ views, disaster rarely actually plays out.
- Example Vestron v. HBO: Movie producers of Platoon backed out of a video distribution deal to go with HBO. Producers had no legal argument for what they had done and had gotten an injunction against them. They appealed arguing that they faced disaster based upon an injunction. Judges allowed the injunction because of skepticism over claims of disaster. In fact, pent up demand for the movie during the injunction actually increased demand for the movie.
- Wear the white hat. Judges and juries can be swayed by the equities. When you can, show why your client is the good guy.
- Example Vermonster v. Monster: Vermonster (a small Vermont-based brewery) used a social media campaign posing as David to Monster’s (energy drink company) Goliath. Kozinski suspects that the social media campaign forced resolution of the case.