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Appellate Practice

Microsoft Brief Defends Weil’s ‘Bailout’ Dig, Cites ‘Goose-Gander Rule’

Posted Aug 27, 2009 7:09 AM CDT
By Debra Cassens Weiss

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Weil, Gotshal & Manges partner Matthew Douglas Powers defended his own trial conduct and raised questions about arguments by opposing counsel in a brief for Microsoft in the software giant’s expedited appeal of a $290 million judgment for patent infringement.

Powers, who is co-chair of Weil’s litigation group, wrote in the brief that there was nothing wrong with his argument that plaintiff i4i had sued for the money—because it was true, the American Lawyer reports.

He also took aim at trial arguments by McKool Smith, saying the law firm for i4i likely didn’t object to Powers’ statements because of the “goose-gander rule.” Application of the rule would have barred his opponents’ references to Microsoft as “by far the biggest software company in the world,” the brief argues.

U.S. District Judge Leonard Davis had tacked $40 million onto the patent infringement award, partly because of Powers’ argument to jurors that suggested the suit by plaintiff i4i was equivalent to a banker seeking a government bailout. Davis said Powers had persisted in arguments that i4i was suing for the money rather than to protect a patent, even though the judge had warned him to stop.

The brief (PDF posted by the American Lawyer) also argued that Davis had failed in his “gatekeeper" role by allowing improper evidence at trial. “This case stands as a stark example of what can happen in a patent case when a judge abdicates those gatekeeping functions,” Powers wrote. “This is not justice.”

The American Lawyer begins its story on the brief this way: “Right back at ya, Judge Davis.”

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