3 Questions For A Patent Case Winner

Winning a patent case is never easy, even for companies that have done it before. For start-ups, which often lack the resources of more established companies, the risks of even deciding to litigate a patent case are substantial. Most start-ups are doomed to fail even without the added stress and expense of litigation brought by a third party, and it is understandable that many start-ups choose to settle patent cases filed against them quickly — even in the face of claims with dubious merit. While the IPR regime (see my last column for a discussion of the Supreme Court’s impending review of its constitutionality) has somewhat reduced the cost of defending a patent case, there are still numerous hard (e.g., legal fees, case expenses) and soft (e.g., business disruption, customer service problems) costs that can make litigating a patent case ruinous for a small company — even if the start-up emerges victorious.

Because of the fraught nature of patent litigation for start-up companies, it is interesting to hear from the head of a company who just endured the experience. To that end, I conducted a written interview with the CEO of a wearable technologies company called Sensoria Inc., Davide Vigano. I found Davide’s answers interesting, both for what was said and what was left unsaid.

As background, Sensoria was among a group of wearable technology apparel companies sued for patent infringement in early 2015 by a company called Sarvint Technologies; the asserted patents came out of research work done at Georgia Tech. The case was filed in the Northern District of Georgia, and Sensoria found itself a co-defendant alongside much larger and more prominent companies like Polo Ralph Lauren and Victoria’s Secret. An unfavorable claim construction for Sarvint eventually led to its counsel withdrawing in early 2017; with Sarvint having never found new counsel, the Court granted a motion to dismiss for lack of prosecution filed by Sensoria against Sarvint a week ago. It took two years, but Sensoria escaped with a clean win, and the company was quick to issue a press release touting both its win and the fact that it has patents of its own supporting the company’s innovative offerings.

Here are my written questions and Davide’s answers. I offer some brief reactions to his statements after his answers (contained in brackets).

GK: What gave you the resolve to fight off the case rather than try to settle it cheaply?

DV: We did not have a choice. We tried to reach out to the plaintiffs multiple times to find a way to settle this case. We were never able to meet with them or have a conversation before and after they filed a lawsuit against us. We have been investing for a number of years to create innovative solutions and a new market for smart garment and footwear technology. It is extremely important for us to maintain our full ability to innovate in all facets of our business.  We will continue to fight vigorously to maintain our full freedom to innovate.

[GK: It seems like the plaintiffs in the case took a very aggressive approach, and even though Sensoria did the sensible thing and tried to explore the possibility of settlement, any efforts at discussion were rebuffed. As such, it is not surprising to see that Sensoria litigated the matter vigorously, and took the first opportunity possible to dispose of the case completely.]

GK: Defending a patent infringement lawsuit is not a cheap endeavor. What concrete steps did you take to manage the legal fees?

DV: We worked incredibly hard to provide as much data and material to our team Squire Patton Boggs to make their work as streamlined as possible. We worked with an exceptionally talented and patient legal team that believed in us and the strength of our IP from the very beginning of this journey. We are more than pleased with the teamwork and collaboration that brought us to this important milestone.

[GK: Here, Davide provides a valuable tip to companies embroiled in patent litigation: namely, that the client should take ownership of its role in the relationship, and try to view themselves as teammates of outside counsel. This means being just as responsive to outside counsel’s requests as the client expects outside counsel to be to their requests, and helping provide the internal “data and material” that can help outside counsel mount an efficient defense. Even though Sensoria worked with a large firm (Squire Patton Boggs), it sounds like they were able to help control costs by taking a proactive approach in terms of providing discovery-related information to their outside counsel.]

GK: What lessons did this experience teach you that you feel would be helpful if Sensoria ever needed to assert its own patents against infringers?

DV: In the end, justice and our faith in the system prevailed. We will continue to focus on product innovation and customer value. Sensoria will also continue to take any means necessary to defend our name, our brand and our IP.

[GK: In my experience, companies like Sensoria that have been blooded and have undergone patent litigation can sometimes be more likely to take an aggressive approach to protecting their own IP. Having realized that they can navigate the legal process and come away with a win, they often focus even more on their own IP as a valuable asset of the company.]

My thanks to Davide for the insights and cooperation, and I wish Sensoria the best going forward. It is important to consider the perspectives of everyone involved in IP litigation, and I appreciate the opportunity to have heard from a start-up’s CEO on his experience with a patent case. Over time, I hope to do more interviews of this type with other IP personalities, so feel free to reach out if you have a compelling perspective to offer.

Please feel free to send comments or questions to me at [email protected] or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Win in Federal Patent Lawsuit Confirms Strength of Sensoria Intellectual Property [Nasdaq Global Newswire]

Earlier: Supreme Court, Patent Saviors?

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at [email protected] or follow him on Twitter: @gkroub.