SEE YOU IN COURT

By Mike Hirtle

Paladin LLC

And now for something completely different…

Instead of writing about inventing, pitching or reviewing concepts I will turn to another facet of my long career. Lawsuits. During my 42 years in the industry, I have been involved in about a dozen lawsuits relating to infringement, breach of contract and other matters.

As I ease into retirement, one of the things that I hope to continue doing for some time is acting as an expert witness in the toy and game field. I have been on the side of both inventors and companies, and always on the side that I believed to be right.

So let’s talk about lawsuits. In all forms of human interactions there are disagreements. In our business it’s: “You stole my idea!” “No, I didn’t”. “You infringed my patent.” “No, I didn’t and even if I did, your patent is not valid”. Our legal system allows for both sides to come into court, present their side of things and then get a judge or a jury to decide who is right. Simple.

At least it should be simple. Why can’t two parties having a disagreement take both sides into court without becoming mortal enemies? I guess there are two reasons. Cases usually only make it to court when there is a great deal at stake. The second reason is what we have allowed our court system to devolve into.

Imagine you are a struggling inventor and you think that the big ACME Toy company “stole” your idea. You go to court with a file of drawings and documents. ACME sends in their inventor relations guy, with whom you have always had a good working relationship. He has a file of documents too and you each show your stuff and make your arguments to Judge Judy who makes a decision in fifteen minutes. Then you and your inventor relations friend go have dinner together and you show him a few new concepts. Of course, if it worked that way, we wouldn’t need expensive expert witnesses.

When big companies are threatened, they don’t hesitate to spend a lot of money defending themselves. Lawyers have taken what should be a fairly simple process and turned it into a massive industry. Even a case as big and far-reaching as Apple vs. Samsung should be able to be reduced to a fairly simple exposition of opposing points and presented for adjudication. Instead there are thousands and thousands of hours churned out and millions of dollars spent in discovery, depositions, expert witnesses (well, that part is OK), filings, hearings, the actual trial and then appeal after appeal.

While it irritates me to see the wastefulness, I actually enjoy the process. Since I am being paid for my time regardless of how it comes out and I have nothing at stake personally, I can dispassionately play the game. And it is indeed a game. There are heavy discussions of strategy and tactics. How do we want our facts presented? How do we counter the way the other side presents their facts? Can we anticipate how the judge or jury will react?

My advice is to make sure that your contracts are well worded and, more importantly, clearly understood by both sides. Then, if there is a disagreement, spend a lot of time and effort in trying to work things out amicably. You can even specify in your contracts that arbitration will be used instead of litigation. Sadly, though, that can be more complicated and expensive than it should be too.

No one wants to be in court. I wouldn’t wish that on anyone. But if you are, give me a call. Maybe I can help out.

(November 2016)