NOT so long ago Yahoo joined the Linux Foundation, whose head has just said that "Software Patents invite Trolls," based on Falk Metzler, who is a patent lawyer.
There may be only one place in America where Yahoo is outperforming Google: the Tyler, Texas, courtroom of federal district court judge Leonard Davis, where a patent holding company called Bedrock accused both companies of infringing a Linux software patent.On Tuesday Yahoo and its lawyers from McDermott Will & Emery won a jury verdict that Yahoo does not infringe Bedrock's patent, which involves code for removing expired records while the operating system performs other operations. On April 15, a separate Tyler jury reached a contrary conclusion in Bedrock's case against Google, finding that Google infringed the same patent and awarding Bedrock $5 million in damages.
To be fair, the Google verdict was hardly the windfall Bedrock and its lawyers at McKool Smith were hoping for. McKool lead trial counsel Douglas Cawley told jurors that Google had saved half a billion dollars as a result of its infringement of Bedrock's patent. He asked for an award of $183 million and got only $5 million. But given the success Quinn Emanuel Urquhart & Sullivan has had in East Texas litigation for Google, it's worth taking a look at why Yahoo got a flat-out defense win and Google didn't -- especially because McKool put on the same three Bedrock witnesses (the patent inventor, a damages expert, and a technical expert) in both trials.
First off, Bedrock had a stronger case against Google. Cawley put on evidence that Google used Bedrock's Linux code on its servers (although Google got rid of the code before trial). Yahoo, on the other hand, used a different form of Linux, and its lead trial lawyer, Yar Chaikovsky and Fay Morisseau of McDermott Will, were able to argue that Yahoo never executed the Bedrock code.
Yahoo also benefited mightily from going to trial second. Chaikovsky and local counsel Jennifer Doan of Haltom and Doan were in the teeming throng of defense lawyers who sat through the Google trial in April, along with lawyers for co-defendants Amazon, AOL, MySpace, and SoftLayer. They got to preview Bedrock's case and watch how Cawley of McKool Smith handled Google's experts and its corporate witness, software engineer Lucas Pereira. That undoubtedly helped Chaikovsky prepare his witnesses. (McDermott was also smart to call Yahoo co-founder David Filo as his corporate witness -- East Texas juries love hearing from top-level execs.)