Matt Powers Slinks Back Into Texas for Microsoft

[Zusha Elinson]

You might think that Matt Powers would be as welcome as skunk at a lawn party down in the Texas courtroom of Judge Leonard Davis, after Davis tacked on an extra $40 million in damages against Powers’ client Microsoft in part because of his “improper arguments” and then Powers very pointedly called out Davis in his appellate brief in October.

But the celebrated patent lawyer is back in front of Davis for a trial starting Monday. Once again he’s representing Microsoft, this time against Virnetx.

Last time it was against i4i and Microsoft lost at trial, was ordered to pay $290 million in damages and got hit with an injunction that bars it from selling some versions of Microsoft Word 2007. (Joe Mullin wrote an excellent piece in which he interviewed the jurors on the case.) And the Federal Circuit agreed with Davis in December.

I speculated back in October that it might be hard for Powers to go back to Texas in front of Judge Davis. Especially after Powers wrote in his brief: “This case stands as a stark example of what can happen in a patent case when a judge abdicates those gatekeeping functions."

But it appears that both Microsoft and Powers don’t think that

Texas patent litigator Michael Smith said he thinks Judge Davis will preside over the case fairly. However, Smith said he would never have attacked a judge like Powers did in his appellate brief. “I wouldn’t have done it because I don’t think it’s appropriate to address the conduct of judges in that kind of tone.”

Comments

[Wendy Boone]

I have no doubt that Judge Davis will be fair and not allow any litigant's or lawyer's prior remarks about him impact his rulings: If anything, I think Judge Davis will go out of his way to avoid any appearance that he is less than judicial in his demeanor. Lawyers who become judges give up a lot of earning capacity and freedom, resources otherwise available to practitioners, and open themselves up to criticism on a regular basis: All Federal Judges know and appreciate the difficulty and sacrifices they each make for the system. While it is appropriate to attack the ruling, the Judge should be respected in his Court -- as he is and will be in the appellate courts. Criticizing judges earns no brownie points anywhere and is typically counterproductive.

[cerebritis]

However, Smith said he would never have attacked a judge like Powers did in his appellate brief.