Intellectual Property

A Patent Story Worth Telling

All thanks to a pair of German producers and the magic of Netflix.

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It is time for a dramatic interlude to interrupt our all-angles coverage of the intersection between litigation finance and IP. If only because getting to watch a well-done dramatized mini-series about a real-world patent case is not something IP lawyers get to enjoy on a regular basis. But thanks to a pair of German producers and the magic of Netflix, I was recently transfixed by the adaptation of Art+Com’s unsuccessful patent assertion against Google, the well-reviewed four-episode “The Billion Dollar Code.” I am not a critic, but I have watched enough television to know when something is well done — and I can recommend the show to this audience without reservation. Moreover, I think that some of the depicted legal scenes — from the deposition prep of the main protagonists to the abbreviated cross-examinations of the technical experts at trial — are worthy of use in a training context for aspiring patent litigators. Perhaps most importantly, I think the show is a significant contribution to the greater goal of increasing IP literacy in a broad audience, capturing as it does the emotional and gripping dramatic elements underlying big-ticket patent litigation.

I would be the first to admit that my enjoyment of the show was enhanced by the concentric circles it drew around some of my own personal experiences. Like the trial team in the show, I stayed in Wilmington’s grand Hotel Dupont during my own first patent trial as a very junior associate. Similarly, I have also had witnesses walk out of the room during a heated deposition prep session. And even though I was not familiar with the Art+Com v. Google case from anything more than seeing the Federal Circuit decision a few years ago as part of my regular review of patent appeal decisions, I was not surprised to see post-viewing that I had personally worked on a different case with the (top-notch) appellate lawyer who argued on Google’s behalf in Art+Com. Nor was I unmoved by the discussion between the two lead plaintiff’s lawyers in the show about their need to succeed in the case for their personal professional advancement. A lot rang true, even as the show presented a fictionalized retelling of events.

After watching the show, with my curiosity about the actual case piqued, I did a little online sleuthing, with some interesting results. First, I reread the Federal Circuit’s decision in the case, which affirmed the finding that the asserted patent was invalid over anticipatory prior art and did not address the jury’s finding of non-infringement. A fairly typical result — and the show itself did dramatize the reading of the jury verdict finding for Google on both those grounds. At the same time, there really was little to no discussion of the prior art actually used to invalidate the patent during the show. Rather, for understandable reasons, the showrunners chose to suggest that the case was really only about whether Google infringed on the patent, or had independently developed Google Earth. As I think about it, perhaps the fact that obviously talented storytellers chose to avoid trying to tell a prior art story should be a hint to us patent lawyers about how difficult it is to sell a jury on invalidity arguments? At a minimum, the dramatic choice to focus on the Goliath-stealing-from-David angle underscores the dramatic import of such a narrative. In other words, if you can make that case in a real-life patent dispute, go for it.

Second, I wanted to see what came up when you search Google today for references to the show or Art+Com. Unsurprisingly, typing in “Billion Dollar Code” returns a lot of hits, from the link to Netflix to various reviews of the show. But when you type in “Art+Com patent” you have to scroll down to the seventh search result before you get a link to Art+Com’s 2014 press release announcing their infringement lawsuit against Google. And when you type in “Art+Com v. Google” the third result is an announcement of a Google patent win in a different lawsuit. Maybe someone else would find that curious, but I will leave that determination to someone with real expertise in how Google returns search results.

Finally, and most importantly, I want to reemphasize just how much “The Billion Dollar Code” gets right about patent litigation. From the bemusement of the witnesses at the preparation they are receiving from a jury consultant, to the techniques they demonstrate to wriggle out of difficulty questioning on cross, to how incremental victories like getting a line of questioning and exhibit excluded energize the trial team — the show simply gets it right more often than not. Add in the implicit recognition of the role of emotion in driving litigation decisions — from the decision to file the case in the first place on down — and viewers are in for an educational, entertaining, and engrossing four hours of viewing. The Art+Com inventors may not have gotten their hoped-for damages from Google, but their story is a fitting legacy to their effort and innovation. Here is hoping that the success of “The Billion Dollar Code” will inspire more IP dramas going forward, because these are stories worth telling.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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