August 21, 2009 10:00 AM

Litigator of the Week: Matthew Powers of Weil, Gotshal & Manges

Posted by Andrew Longstreth

When you hop from one high-stakes patent infringement trial to the next, your wins and losses tend to be magnified. That's certainly the story for our Litigator of the Week: Weil, Gotshal & Manges IP star Matthew Powers. First came a big loss, when Tyler, Texas, federal district court judge Leonard Davis entered a $290 million judgment against his client, Microsoft, along with an injunction order that prevents Microsoft from selling some versions of Microsoft Word.

Judge Davis's August 13 ruling added insult to injury for Powers, taking him personally to task for making "improper" arguments at trial last spring. Specifically, Judge Davis found fault with Powers’s comparison of Microsoft’s opponent--a Canadian company called i4i--to a banker seeking a bailout. Moreover, Davis complained, despite his warning, "throughout the course of trial, Microsoft's trial counsel persisted in arguing that it was somehow improper for a nonpracticing patent owner to sue for money damages." Frankly, we've seen other lawyers lob that accusation in trial against patent trolls, but Judge Davis hit Microsoft with $40 million in enhanced damages, in part because of it.

Then came Powers's big win. On Wednesday, a Trenton federal district court judge issued an opinion upholding Merck's patent on its multibillion-dollar asthma and allergy drug Singulair. The ruling followed a four-day bench trial in February at which Powers teamed up with his colleague Nick Barzokas on Merck's behalf.

Given the huge stakes in both case--and the different outcomes for Powers--we called to ask what his week's been like. (Sort of like if the guy from the old "agony of defeat" commercial got up, put his skis back on, and proceeded to win the race.) Powers kept his cards close to the vest when we spoke to him Thursday. He said he was "pleased" with the Merck decision, but he declined to address Judge Davis's charge that he made improper arguments at the Microsoft trial.

He did, however, tell us that the U.S. Court of Appeals for the Federal Circuit has granted Microsoft's request for an expedited appellate briefing. The court has already set a really fast schedule for the appeal, with opening briefs due next week and oral argument scheduled for September 23.

We asked for a preview of how Powers intends to address Judge Davis's accusations. He again demurred. "It will all be addressed in the brief," Powers said.

We're looking forward to reading that one.Make a comment

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