Intellectual Property Litigation

Washington, D.C.-based Intellectual Property Group partner and director with C&M International, Terry Rea, was acknowledged in Managing Intellectual Property for her role as a moderator at a recent panel discussion. The panel Rea moderated discussed the impact of the Supreme Court on Section 101 and featured panelists David Kappos and Laurie Self.

Washington, D.C.-based Intellectual Property Group partner and director with C&M International, Terry Rea, made the Washington Business Journal’s inaugural list of Legal Champions in the "New Additions" category. Rea, who recently came back to work in the private sector after spending time at the United States Patent and Trademark Office (USPTO) as the first female acting and deputy director, touched on why she became a lawyer as well as the changes she has seen in the patent law arena along the way. Additionally, Rea was highlighted in three videos where she provided her thoughts on the misconceptions about lawyers, how the legal profession has changed, and the toughest part about being a lawyer.

San Francisco-based partner and co-chair of the firm's Litigation Group, Gregory D. Call, discusses with Law360 the importance of preparing lawyers for trial, and the ways Crowell & Moring is able to provide this crucial experience, given that the percentage of federal court cases being resolved through trial has plummeted to less than two percent. To help prepare attorneys, Crowell & Moring conducts a one-week trial academy at which young attorneys across the firm are brought together to work with experienced trial lawyers and play different roles in a mock trial. "The young attorneys participate in direct and cross-examinations, openings, closings, voir dire and all the things that happen at trial," Call said. "It's valuable for lawyers to get an opportunity to stand up and do a cross-examination, and then hear what people think about what they did well and what they could have done better." Continuing to drive home the importance of trial readiness, Call adds, "By having a real role on a case, associates can see how what they are doing is relevant to the outcome of a possible trial, and when a trial happens, they are part of it."

"The Federal Circuit doesn't have jurisdiction over contempt orders until sanctions are entered; Bosch applies to infringement cases only." Washington D.C. -based, Intellectual Property Group partner Kathryn L. Clune represented Arlington Industries in the case.

The Federal Circuit dismissed an appeal from Bridgeport Fittings Inc. over a lower court's finding of contempt before sanctions had been awarded for lack of jurisdiction as the lower court had merely interpreted, rather than modified, a 2004 agreement enjoining Bridgeport from producing electrical connectors that allegedly infringed on Arlington Industries Inc. when it entered a contempt order against the company in 2013. The case is Arlington Industries, Inc. v. Bridgeport Fittings Inc. Washington D.C. -based, Intellectual Property Group partner Kathryn L. Clune represented Arlington Industries in the matter.

The U.S. Supreme Court on June 25 ruled that online television streaming service Aereo Inc. violates copyright law by retransmitting over-the-air programming without authorization. John Stewart, IP partner in the firm's Washington, D.C., office and co-head of the firm's member of the firm's global TLD and Domain Name Practice, tells Law360 why the decision in American Broadcasting Companies Inc. v. Aereo Inc. is significant. "America's unique system of free broadcasting provides unparalleled programming service. The Copyright Act carefully balanced the interests of creators, distributors and viewers to sustain this service. The court's decision was plainly driven by the transparency of Aereo's attempts to evade Congress's balance. Even the dissent agrees it 'ought not to be allowed.' The court's opinion reinforces the balance, without impinging on new methods of program delivery developed in cooperation with content owners. The court's analysis of the Transmit Clause and users' prior rights in stored content may affect the remand on Aereo's delayed-transmission services, notwithstanding prior court of appeals decisions."

San Francisco-based partner and co-chair of the firm's Litigation Group, Greg Call, shares best practices for delivering effective direct examinations at trial. Based on his extensive experience in the courtroom, Call offers strategic tactics for engaging with jurors. Among other notable advice, Call suggests, "If you get the reputation that you do your job and do it quickly, jurors are likely to pay attention to what your witnesses say. You don't want jurors thinking, 'This is going to take forever,' every time you call a witness. You want to earn the reputation of the lawyer who gets to the point."

Chair of Crowell & Moring's Intellectual Property Group, Mark Supko, talks to Law360 about intellectual property legislation to watch in 2014. He notes that the Innovation Act, "would be a pretty fundamental sea change in patent litigation." The House of Representatives passed the Innovation Act in December 2013, which according to Law360, "includes many significant changes to patent law, such as requiring more detail in patent complaints and limiting discovery, but the real fight in 2014 will take place in the Senate."

Brussels-based attorney and member of the firm's Intellectual Property and Trade Secrets groups, Jan-Diederik Lindemans, shares his views on the EU Commission's proposal to stem an increase in theft of trade secrets across Europe with a new proposal to harmonize the definition of the practice and block imports of products arising from such theft. Lindemans notes that a patchwork of different definitions of trade secrets and remedies across the EU's 28 jurisdictions complicates the issue and makes enforcement tricky. "The principle behind this move is right because litigating trade secrets is difficult because it requires an understanding of 28 different legal regimes," stated Lindemans.

Advertising & Product Risk Management (APRM) Group partners and Group co-chairs Chris Cole and Cheri Falvey are profiled in the Washington Post's Capital Business section for their leadership and growth of the practice. The article highlights the strengths they each bring to the firm, and the unique ability of the APRM Group; "Now the group advises on the entire life cycle of consumer products, from their creation to safety testing, advertising campaigns, product recalls and designing consumer tests to back up marketing claims — which is almost like a science," Cole states. Additionally, Falvey highlights, "part of the reason she joined Crowell was because the firm's leaders understood that the science that must be conducted to back up marketing claims is the same science that federal regulators look at when evaluating the safety of products."

In the National Law Journal (NLJ) special report "Washington Litigation Departments of the Year," Crowell & Moring was named "Department of the Year" in the "General Civil Litigation" category. For this report, the NLJ editorial team evaluated litigation departments in the nation's capital based on several criteria including biggest wins, revenues, headcounts, and operations. As a result of their research and findings, the team selected six "excellent firms" in this first-ever, Washington, D.C.-based contest. When asked about the firm's key to success, firm chairman and Washington, D.C.-based partner, Kent Gardiner, remarked, "Clients bet on us because we bet on ourselves to win for them, and we collaborate to structure our fees around our ability to achieve success as they define it."

Washington, D.C.-based partner and chair of the firm's Intellectual Property Group, Mark Supko tells Law360 in their "Practice Leader Q&A" series about areas of the intellectual property industry that he thinks need to be reformed, and about a good life lesson learned when he was just beginning his legal career.

The U.S. District Court for Eastern Virginia found that Kolon Industries failed to prove that Crowell & Moring client DuPont monopolized the market for the material, or used its contracts with customers to shut out rivals. Crowell & Moring chairman and Antitrust Group partner Kent A. Gardiner told Global Competition Review, "Discovery proved that not a single customer complained about business practices of DuPont, or sided with Kolon in support of its claims. The court rightly found that DuPont neither was a monopolist in the market nor engaged in any anti-competitive conduct."

A Virginia federal judge dismissed an antitrust suit brought by Kolon Industries Inc. against Crowell & Moring client DuPont over a synthetic fiber used in body armor, finding there was no evidence of a monopoly by DuPont. U.S. District Judge Robert E. Payne granted DuPont's motion for summary judgment, ruling that the DuPont did not monopolize or attempt to monopolize the para-aramid fiber market and held that competition in the industry is thriving. Speaking to Competition Law360, Kent A. Gardiner, Crowell & Moring chairman and Antitrust Group partner, said, "The ruling fully vindicates business practices of DuPont in this critical sector of the economy. The court rightly found that DuPont neither was a monopolist in the market nor engaged in any anti-competitive conduct."

Crowell & Moring is listed among 17 firms that received praise from corporate counsel for improving their client focus in the BTI Client Service A-Team 2012 report by the BTI Consulting Group Inc.

According to the article, “While many firms have been increasing their emphasis on client service to remain competitive, a few made strong pushes toward more in-person meetings, satisfaction surveys and follow-up calls this year, earning them the designation of most improved in a new survey of corporate counsel.”

Washington, D.C.-based Litigation Group partner and Trade Secrets team member Michael J. Songer speaks to Intellectual Property Law360 about the successful trial strategy that secured a $920 million jury verdict for Crowell & Moring client DuPont in a heated trade secret case with rival Kolon Industries Inc. over DuPont's Kevlar brand body armor product. The joint efforts between McGuireWoods and Crowell & Moring resulted in one of the largest jury verdicts ever reached in the Eastern District of Virginia.

According to Songer, "We chose the unjust enrichment theory, that Kolon had avoided the expense of doing their own research and development. Then we had to demonstrate the amount of research that had gone into DuPont's technology over the years."

Crowell & Moring’s Trade Secrets Group is highlighted in IP Law360 as co-counsel for DuPont in their $919 million win against Kolon Industries.

According to DuPont Senior Vice President and general counsel Thomas L. Sager, “The size of this award is one of the largest in defense of business processes and technologies.”

Crowell & Moring LLP is highlighted for its corporate plaintiff's recovery practice in this story about how in-house counsel are turning their legal departments into profit centers.  Major companies, such as DuPont Co., Ford Motor Co., Tyco International Ltd., and Michelin SCA, among others, say their lawyers are devoting more time and effort to bringing in extra cash by thinking like plaintiffs.

Crowell & Moring chairman Kent A. Gardiner told The Wall Street Journal that the firm’s docket of such cases has doubled over the past five years.  The firm’s recovery efforts for clients include a full suite of practice areas, ranging from tax and customs to intellectual property and antitrust.

Intellectual Property Group partner and co-head of the firm's TLD (Top-Level Domain) and Domain Name practice, John I. Stewart, is featured for his thoughts in a story about 2011 trends in trademark and domain name protection litigation. According to the article, "The Internet Corporation for Assigned Names and Numbers, or ICANN, will finalize a program in 2011 that will allow companies to register new brand-specific, top-level domains, otherwise known as the part of the URL that comes after the dot, commonly .com or .net." Due to potential trademark disputes as a result of this new registry program, Stewart comments that this is, "a brand-new regime, one that affects a lot of brand owners."

Crowell & Moring LLP Antitrust Group partner and co-chair Robert A. Lipstein talks about the international implications that lawyers should consider when drafting IP licenses for clients. One important consideration for IP licenses is the jurisdiction where the license will be in effect. According to Lipstein, "If you structure the license to comply only with the most lenient antitrust environment, you're likely to run into issues where enforcement is less lenient."