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Legal Ethics

Microsoft Judge Chastises Weil Lawyer for ‘Bailout’ Dig

Posted Aug 18, 2009 11:30 AM CDT
By Debra Cassens Weiss

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The Texas judge who ordered Microsoft to pay $290 million for infringing a patent included a $40 million enhancement that he said was partly justified because of alleged trial misconduct by a lawyer from Weil, Gotshal & Manges.

U.S. District Judge Leonard Davis tacked on the $40 million penalty because of evidence of willful infringement. But also “favoring enhancement,” he said in an opinion, was trial conduct by lawyer Matthew Douglas Powers, a Weil Gotshal partner.

Davis chastised Powers, saying he misrepresented the law, according to Information Week and the Seattle Post Intelligencer’s Microsoft Blog. Davis ruled last week in the infringement suit by i4i Limited Partnership.

The problem began when Powers asked jurors during voir dire about their reaction to a scenario in which a company sues, not to protect a patented product, but just to get money, according to Davis’ opinion (PDF). The judge warned Powers outside the presence of the jurors that “I think you're sort of misstating the law, and I don't want to embarrass you in front of the jury. But I would appreciate it if you would clean that up.”

But the warning was not heeded, the opinion says. “Throughout the course of trial Microsoft’s trial counsel persisted in arguing that it was somehow improper for a nonpracticing patent owner to sue for money damages. He further persisted in improperly trying to equate i4i’s infringement case with the current national banking crisis implying that i4i was a banker seeking a ‘bailout.’ ”

Powers refused to comment, saying in an e-mail to the ABA Journal that the law firm’s response will be in its appellate brief and any statements should come from Microsoft. Microsoft issued a statement by spokesman Kevin Kutz that did not address the allegations against Powers.

“We are disappointed by the court’s ruling," the statement said. "We believe the evidence clearly demonstrated that we do not infringe and that the i4i patent is invalid. We will appeal the verdict.”

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