Skip to content


Can Your Patent Lawyer Be Too Aggressive?

Brett Trout

In a word, yes. In the intricate realm of patent litigation, the choice of legal representation can significantly influence the outcome of a case. While you want your patent lawyer to zealously represent your interests in court, having a lawyer who is too aggressive can backfire… spectacularly. A recent court order in the case of Symbology Innovations LLC v. Valve Corporation underscores the critical importance of choosing a patent litigator who is tough, but not unreasonably tough.

Case Overview

In Symbology Innovations, LLC v Valve Corp., the Eastern District of Texas (EDT) examined the propriety of Symbology filing a Third Amended Complaint (“TAC”). In this case, the plaintiff argued EDT was the proper venue for its federal patent infringement lawsuit, relying on certain tenuous connections Valve had with the district. 

Improper Delay

In response to Symbology filing a Second Amended Complaint, Valve moved to dismiss the case, based on what it argued were Symbology’s frivolous venue allegations. Before the response was due to Valve’s Motion to Dismiss, Symbology filed its TAC, adding additional venue allegations. 

While amended complaints are not normally the stuff of Rule 11 sanctions, the court found Symbology filed this particular TAC to delay having to respond to Valve’s outstanding Motion to Dismiss, needlessly increasing costs incurred by the parties and wasting judicial resources. The court found that Symbology violated Federal Rules of Civil Procedure Rule 11(b)(1) and should have included its expanded venue allegations in its response to the Motion to Dismiss, noting another court had already cautioned Symbology’s counsel to that effect. 

Legal Contentions That Contradict Existing Precedent

In addition to the improper delay, the court found that Symbology made improper venue arguments to the court. Symbology’s attorney argued that the sale of gift cards in the district were relevant to the venue question and argued venue was proper under 28 USC 1391. Stretching the venue provisions to try to cover a particular set of facts does not normally result in Rule 11 sanctions, but in this case the attorney made these arguments to the court four separate times, despite opposing counsel providing clear case law explaining why these allegations were legally frivolous. While it is allowable to make an argument for extending, modifying, or reversing existing case law, Symbology’s attorney made no such argument. For these reasons, the court found Symbology’s attorney in violation of Rule 11(b)(2). 

False Factual Allegations

In its TAC, Symbology argued that Valve had agency over employees who reside in the district. This was despite Symbology’s attorney receiving sworn testimony from Valve that it had no employees living in Texas. The court also found Symbology lacked evidentiary support for claims in its TAC relating to Valve allegedly waiving venue objections in a prior Settlement Agreement. The court found that the Settlement Agreement did not involve the patents at issue, Symbology was not a party to the Settlement Agreement, and Valve was not asserting a license defense. For asserting factual contentions they knew, or should have known were false, the court found both in violation of Rule 11(b)(3).

Punishment

While a client may be responsible for a Rule 11 violation, they are only responsible if they knew, or should have known, that the filing was wrongful. In this case Symbology’s attorney took full responsibility for the Rule 11 violation and the court took no action against his client. In determining the appropriate sanction for Symbology’s attorney, the court, having wide discretion in Rule 11 cases, looked at: (1) whether the conduct was willful or negligent; (2) whether the activity was isolated or part of a pattern of activity; (3) whether the conduct affected only a single event within the case or the entire litigation; (4) any previous similar conduct by the attorney; (5) whether the conduct was intended to cause injury; (6) the effect of the conduct on the litigation in terms of time and expense; (7) whether the responsible party was trained in the law; and (8) what sanction, given the financial resources of the responsible person, is needed to deter similar activity by other litigants. Upon review of these factors the court ordered a public admonition and the requirement the attorney to attend thirty hours of courses covering legal ethics and another thirty covering the Federal Rules of Civil Procedure. 

Lessons for Patent Owners

This case highlights the necessity for patent owners to ensure their legal counsel possesses a comprehensive understanding of venue laws and corporate structures. An attorney’s expertise in these areas is crucial for effectively navigating the complexities of patent litigation.

Key Considerations When Selecting a Patent Litigator

  1. Expertise in Patent Law: Ensure the attorney has a robust background in patent litigation, with a track record of handling cases similar to yours.
  2. Expertise in Federal Court: As all patent infringement is a federal matter, ensure the attorney has a detailed knowledge of the applicability of the Federal Rules of Civil Procedure and the Local Rules to patent cases.
  3. Understanding of Jurisdiction and Venue Laws: As venue rules are different for patent cases, the attorney should be well-versed in the nuances of patent litigation jurisdiction and venue selection.
  4. Reputation and Ethics: Research the attorney’s professional standing. Recent incidents, such as attorneys facing sanctions for overstepping the bounds of decorum, presenting unverified facts or unsupported legal arguments to the court highlight the importance of ethical practices and diligence. This is especially important as more patent attorneys incorporate artificial intelligence into their trial practice. 
  5. Communication Skills: Effective communication is essential. Your attorney should be able to clearly explain factual analyses and legal strategies and keep you informed throughout the litigation process. Your attorney should never encourage you to bend the truth or forget details. 

Conclusion

The Symbology Innovations case serves as an important reminder of the criticality of picking the right lawyer to argue your patent infringement case in federal court. Patent litigation is much more complex and very different than most types of state and federal litigation. Meticulously vetting potential litigators is crucial to better positioning yourself for a favorable outcome. Choosing an attorney with the right expertise, ethical standards, and resources is paramount to successfully navigating the inherently challenging landscape that is patent infringement litigation.

Related posts

Posted in Choosing the Best Lawyer, Litigation, Patent Law, Patent Lawyer. Tagged with , , , , , , , , , , , , .