The plaintiff, Ultravision, has sued nearly 40 LED display companies in the past three years. LED display panels are used to build video walls in places like sports stadiums and concert venues, as well as on roadside digital billboards. Absen was sued by Ultravision in March of 2018. Absen first litigated with Ultravision at the International Trade Commission (ITC) through expert discovery before Ultravision dropped its case in November 2018, a victory also secured by the Goodwin team.
Shortly after the ITC case ended, however, Ultravision sought to expand the dispute in co-pending district court case in the Eastern District of Texas by increasing the number of asserted patents from two in the ITC to eight in the district court. Although the case was consolidated for discovery purposes with six other defendants, each of those defendants settled with Ultravision before trial. Absen did not settle. Absen continued to trial, becoming the first Ultravision target to have the case decided on the merits. By the time of trial, Absen had eliminated five patents, including by proving one was invalid for indefiniteness and moving for summary judgment of non-infringement on others. Thus, there were only three patents left to try.
The centerpiece of Goodwin’s theory of the case was that the sole inventor of the asserted patents was not the true inventor. Rather, the Goodwin trial team asserted that he simply took information obtained from two China-based LED panel suppliers and passed it off to the PTO as his own. The team had put together a meticulous record to map out this fatal problem to the jury. The evidence was obtained not only through third party discovery, but also successful motion practice. The team used trial testimony and pre-admitted exhibits to weave together the complicated storyline in a way that was digestible for the East Texas jury.
PJ McCarthy kicked off the taking of evidence with a 2.5-hour cross-examination of the sole inventor. This set the tone for the rest of the case. To emphasize the inventors inconsistencies in his testimony, the trial team would later call a former Ultravision executive to testify live to facts that directly contradicted the inventor’s testimony. McCarthy also presented the former to the jury. In addition, Goodwin called nine other fact witnesses and three experts that each presented testimony disproving nearly every material substantive statement or allegation made by the inventor during his direct examination.
In addition to its inventorship defense, Goodwin also presented strong non-infringement and prior art invalidity defenses. Srikanth Reddy presented Absen’s non-infringement expert and cross-examined Ultravision’s infringement expert. Reddy objected to certain key questions during Ultravision’s case-in-chief, which sought to solicit new opinions to make up for shortcomings. As a result, Ultravision was precluded from presenting a complete infringement case.
Naomi Birbach presented Absen’s invalidity expert. Naomi deftly handled a technical snafu (hot seat operator had the wrong slide deck loaded) and presented a strong redirect that sealed the invalidity case for Absen. Highlighting the strength of the invalidity case and the record that the team had managed to put together over the last three years, the plaintiff decided at the last minute to pull its expert that was expected to rebut the testimony that Naomi had solicited. Cross-comparing the expert’s prior testimony to what he would have needed to say at trial, the trial team had aptly predicted that it would be difficult for the expert to testify given his prior testimony on infringement.
The team’s success stories go on. Louis Lobel delivered a strong cross-examination of Ultravision’s damages expert which confirmed, among other things, that every license Ultravision has obtained was procured through litigation. The team would not have been successful without the critical and valuable assistance of Kevin Martin who both handled the Rule 50 proceedings, assisted with witness preparation, and took lead on the jury instructions with support from Birbach, Lobel, and Kelly Grossheusch, each of whom argued portions of the disputed instructions at the informal charge conference. The team was supported remotely by Lucas Dahlin, who spent many hours preparing Absen’s first-time testifying non-infringement expert remotely; Charles Li, who worked all hours of the night preparing our China-based third party fact witnesses who testified by video trial depositions taken in Macau in the last month; and Madeline DiLascia, whose work getting the case ready for trial made it possible for the Goodwin team to present the defense it did.
The trial team was incredibly well-supported on site by paralegals Nancy Cunningham and Alex Shaw, utility player and miracle worker Carlos Guerrero and secretary Kristy Wright.
The Goodwin team also represents five defendants in follow-on cases that were administratively closed pending disposition of the Absen trial. The team’s expectation is that the Absen case will act as a bellwether that will allow for disposition of the other cases without trial.
Meanwhile, Absen’s inter partes review proceedings, where every petition for review filed by Absen was granted by the Patent Trial and Appeal Board, continue apace. Linnea Cipriano, Monte Cooper, and Suhrid Wadekar have been leading the charge and final hearings are scheduled for later this year.
Ultravision v. Absen marks Goodwin's second patent litigation win before a jury in the Eastern District of Texas so far this year. In March, Goodwin achieved a total victory in Personalized Media Communications, LLC v. Apple, Inc., resulting in a unanimous jury verdict in PMC’s favor awarding PMC $308.5 million in past damages for Apple’s infringement.