Wednesday, 2 February 2011

Counsel's anti-semitism earns Texas retrial on patent infringement damages

Surely it's time for religious
jibes and stereotyping to stop
I found it hard to believe that the state of affairs detailed in this link is true, but it must rank among the saddest reasons for a patent retrial.  In "Patent retrial follows Cisco lawyer's anti-Semitism", the author relates that a successful claimant in a US patent infringement action was able to challenge an unconscionably low award of damages following some remarkable expressions of sentiment that one would not thought it possible to hear in court in these days of political correctness.  The article by Batya Feldman for Globes states, in relevant part:
"The law of the conservation of energy applies to start-ups too. Nothing is lost; it only changes form. The case of Israeli start-up Commil is an excellent example. Two years after closing down, it sold its assets for a few hundred thousand dollars to a new company, Commil USA LLC. Commil USA sued Cisco Systems Inc. for infringement of its patent. Commil USA won the case and was awarded $3.7 million, but nevertheless in late 2010, it asked the court for a new trial. The request was granted. 
US District Court for the Eastern District of Texas Judge Charles Everingham approved the motion, which was based on the claim that Cisco's attorney made prejudicial remarks against the plaintiff, which were welcomed by the jury. What is the connection between wireless telecommunications equipment patents and anti-Semitic remarks? There were many such connections in the case of Commil USA vs. Cisco. ...
[Details of the factual and commercial background omitted]

The trial began in May 2010 in the Texas town of Marshall. The jury found that Cisco had violated Commil's patent and awarded the company $3.7 million. In June 2010, Commil USA filed a motion for a new trial, citing improper remarks by Cisco's attorney, and what it believed was the low reward; it had asked for $50 million. 
Commil did not mention the lawyer's name in the request for a new trial, but several reports say that it was Adv. Otis Carroll of the Ireland Carroll & Kelley PC law firm based in Tyler, Texas. 
The motion for a new trial states that Carroll described [Jonathan] David [who bought Commil's intellectual assets] as a greedy financial investor, who was Jewish by the way, who resided in Israel no less, and sought to take money from the manufacturer, Cisco, which employed thousands of people at its center in Texas. For example, in the closing argument, Carroll made a connection between the case and the trial of Jesus before Pontius Pilate, who ordered the crucifixion. He said that the jurors should stop David before the money window, because he wanted to fill his money bags and take them to Israel. 
Carroll even argued that $3.7 million was a great sum, considering that David bought the patent for a few hundred thousand dollars. He called David a "bottom feeder". When David mentioned a dinner meeting at a barbeque restaurant with one of the inventors of Commil's product, Carroll commented, "I bet not pork." Carroll also described David as "A financial investor who does not understand technology, and is seeking easy prey." ..."
PatLit thanks Shabtai Atlow (NDS) for this link.
There is also coverage of this item in Bloomberg here, International Business Times here and here.  Counsel in question is said to have apologised to all concerned.

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