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March/April 2006


Patent Infringement Litigation: A Step-by-Step Guide from Dispute through Trial for Executives, Witnesses, and In-House Counsel

By Lester L. Hewitt
Aspatore Books, 2005, 256 pages

Reviewed by Benjamin K. Sanchez

Statistically, Due to the complex nature of IP litigation, outside counsel are often left to wonder how they can impart knowledge about the process in a clear and meaningful manner. Whether you are dealing with in-house counsel or the company’s executives or other witnesses (fact and expert alike), Lester Hewitt’s Patent Infringement Litigation is a resource that you can share to enlighten your clients and witnesses on the mystery that is patent litigation. I am not sure that witnesses per se would want to read the entire book, but it will be helpful to client executives and in-house counsel, especially if IP is one of your client’s major assets.
The real question is whether your clients will want to read a 256-page book. More importantly, will they be annoyed with you for suggesting they should read an entire book on the matter, when you may be able to get an overview of IP litigation in a much shorter article? If it is any consolation, the substantive meat of the book is contained in the first 103 pages, with the remainder of the book as appendices containing reports, sample pleadings and court charge, and other reference material. Furthermore, the author is a partner in the law firm of Akin Gump Stauss Hauer & Feld LLP who co-chairs both the IP Section and the Patent Litigation Section firmwide, and who formerly worked as an examiner at the United States Patent and Trademark Office. Hewitt is a patent litigation specialist who is consistently honored as a top attorney both nationwide and in Texas.
As a non-IP litigator, I wasn’t sure what to expect from the book. Generally, I wasn’t looking forward to reading a book about a field of law that some consider lackluster. Having read the book, I can now tell you that I appreciated reading material by a person who knows his stuff and is passionate enough about his specialty to write a book for non-litigators and laymen alike. The book covers each step of the process in a chapter that is as minimal as possible. Chapters discuss, among other issues, how a patent dispute might arise, the dynamics of a typical patent litigation -- including the standards by which disputes are decided, -- the discovery and procedural aspects of the litigation, alternative dispute resolution, depositions, summary judgment, trial and post-trial matters. What is especially good for your client is that he or she can read a chapter in a single sitting, and thus learn the basics of each topic without refocusing after stopping midway through a chapter. Additionally, Hewitt provides sample scenarios to better help the readers identify with the material.
Attorneys expecting a treatise on patent litigation should look elsewhere. Hewitt’s book is not meant to be a treatise for attorneys but rather a broad review (with some commentary thrown in for good measure) of IP litigation primarily for non-attorneys. Having briefly discussed this book with me, Hewitt candidly admits that this book was meant to be a broad overview for non-IP attorneys who may find themselves ensnarled in IP litigation.
To be frank, although I am not an IP attorney, I took several IP courses while attending University of Houston Law Center. Thus, I didn’t come into this material with a totally blank slate on patent litigation. Overall, I recommend this book, not necessarily because I think each of your clients and witnesses will be enthused enough to read an entire book on patent infringement litigation, but rather each chapter is a valuable resource in its own right, allowing specific topic areas to be digested as needed.

Benjamin K. Sanchez practices with the firm of
Leyh & Payne LLP. He is a member of The Houston
Lawyer editorial board.


The Color of Law

By Mark Gimenez
Doubleday, 2005, 401 pages

Reviewed by Benjamin K. Sanchez

John Grisham meets Texas! The Color of Law is Mark Gimenez’s entry into the publishing phenomenon of legal thrillers. Gimenez is touted as having grown up in Galveston County and having been a former big-firm partner in Dallas before opening up his own practice in the Dallas-Fort Worth metroplex. While The Color of Law is a valiant first effort, Gimenez doesn’t seem to quite settle down in his narrative. Throughout the book, readers clearly see John Grisham, while also seeing Harper Lee’s To Kill a Mockingbird. It is hard to miss that, as the lead character is named Atticus Scott Fenney, rather than Atticus Finch. Furthermore, Fenney’s daughter calls Fenney “A. Scott” rather than “father” or “dad” (sound familiar?).
Mr. A. Scott Fenney is a prototypical big-firm Dallas lawyer whose world is just about perfect. He lives in Highland Park, drives a Ferrari, has a beautiful wife, a smart daughter, and is second-in-command in his firm. Like many of Grisham’s books, wherein the lead character overcomes a life-shattering event only to dismiss his former life, so too does Fenney fall from grace only to lead to a life different from where he began. Fenney, a white attorney, is appointed by Judge Samuel Buford, the senior judge on the federal bench for the Northern District of Texas, to represent a black, crack-addict hooker accused of murdering a Texas Senator’s son, whose sexual escapades are both embarrassing to his father and dangerous to his father’s ambition to run for President of the United States. We learn later that the Senator’s personal attorney happens to be the owner of the law firm at which Fenny works. Fenney must make a decision between his perfect world at the sacrifice of his indigent client, or his client at the sacrifice of his perfect world. Fenney, in the face of great odds, chooses the latter.
Viewing this book from the perspective of a lay reader, I could appreciate its drama. As a Texas attorney, I was quite upset by the blatant sellout of our profession found in the book. In a world where attorneys must constantly strive to correct the wrong impressions that our clients and others have about the legal profession, Gimenez’ black-and-white world, full of extremes with little gray in the middle, does a disservice to us. The facts are so farcical that I couldn’t help but wonder if the book’s underpinning came from the author’s midnight dream. For example, Fenney rationalizes his over-billing of rich clients as follows: “[rich clients are] creatures of lesser intelligence who, by the grace of God, have inherited, stolen, swindled, connived, cheated, or simply lucked their way into enormous wealth. So, to restore balance to the natural order, the lawyers are duty bound to relieve their clients of much of their wealth in legal fees.” Before his conversion, Fenney settles one of a string of sexual harassment suits against his rich client for one million dollars in one telephone conversation, for which Fenney feels “duty bound to bill his best client $50,000.” Of course, the practice of over-billing does not address Fenney’s deliberate cover-up of poisoned land on behalf of the same client, by hiring an expert directly and then protecting the report as attorney work product privilege.
Having lived and practiced law in Dallas for three years, I must give Gimenez his due as an author. He knows the Dallas culture and is masterful at detail. Rarely do Texas attorneys get to see legal thrillers taking place in Texas (I’m excluding the biggest Texas thriller of all, the Texaco-Pennzoil case). It was nice to read a legal thriller set in Texas, even if its over-the-top style is such a disservice to our profession. In a sense, you cannot blame Gimenez. He certainly didn’t begin the fairy tale genre known as legal thrillers -- who can forget Grisham’s fanciful tale of a Harvard associate taking a position in a law firm in Memphis, Tennessee, only to later find out that the firm’s biggest client is the mob! Though I would not recommend this book to non-attorneys because of its extreme portrayal of the legal profession, I think attorneys would find this book entertaining. At the very least, you should read this book simply to know what your clients, families and friends are reading about our profession.

Benjamin K. Sanchez practices with the firm of Leyh & Payne LLP. He is a member of The Houston Lawyer editorial board.

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