An IT manager’s patent-infringement tale: 'Flash of Genius 2'

In my Editor's Note that will come out on Monday, I wrote about Bill Corcoran, an IT manager in suburban Philadelphia whose tale of perseverance in confronting corporate arrogance and greed is reminiscent of the David-and-Goliath story that inspired the film, Flash of Genius.

That film, you may recall, recounts the story of Robert Kearns, the inventor of the intermittent windshield wiper, who waged a seemingly hopeless patent-infringement battle against the Big Three automakers. Kearns, played by Greg Kinnear, was determined to do whatever it took to ensure that he was properly credited for his invention. Driven by principle and a quest for justice, he ultimately prevailed in legal judgments against Ford and Chrysler.

Kearns' story is remarkably similar to that of Corcoran, who since 1995 has served as MIS director at J.C. Taylor, a company in Upper Darby, Pa., that specializes in insuring antique automobiles. Corcoran's invention was an auxiliary computer cooling fan that would fit into the drive bay of most any computer without any retooling. He worked with his buddy Gary Smith, a design engineer, to create a prototype, and they received a patent for the device in 1999.

In 2003, Corcoran discovered that two retail chains, Best Buy and Micro Center, were selling a product marketed by Antec, a California-based computer peripherals wholesaler, that he was certain violated his patent. He enlisted the help of Steve Driscoll, the lawyer he'd worked with to secure the patent, to address the violation.

Driscoll, a patent attorney and partner at Saul Ewing LLP in Philadelphia, wanted and expected to settle the matter out of court. But Antec, Best Buy and Micro Electronics, Micro Center's parent company, wouldn't even come to the table. So on Sept. 13, 2006, the civil case of Comaper Corp., Plaintiff, v. Antec Inc., et al., Defendants, was filed in the U.S. District Court of Eastern Pennsylvania. (Comaper was just a company that Corcoran and Smith set up on paper to protect themselves from liability. Smith came up with the name, which is a contraction for "computers and peripherals.")

The case went to trial in October 2007, and as I wrote in my Editor's Note, it reads like a Hollywood screenplay. Unfortunately, space constraints prohibited me from telling as much of the story as I would have liked. I was able to mention the unbelievable display of arrogance by Otto Lee, a patent attorney and former mayor of Sunnyvale, Calif., who testified for Antec. He sat on the stand and had the gall to refer to a "cease and desist letter" as an "eat s--- and die letter." The court transcript is pretty comical.

Judge: I'm glad he said that quickly.

Antec's attorney: I'm not glad he said it at all.

Judge: Well, that's another story.

When Driscoll recounted the episode in a conversation we had last week, he was still incredulous.

"The decorum in federal court is such that that's just inappropriate. Our judge was a very nice person who didn't get upset, but there are a lot of judges who would have taken his head off for using that language in their courtroom," Driscoll said. "This was on direct [examination], not on cross [examination] - they self-destructed. The clear impression that [Otto Lee] gave was one of contempt - ignoring our patent, which is something we suspected all along. He really turned out to be our star witness."

I'd love to be able to tell you what the defendants had to say about all this, but Antec and Micro Electronics declined to speak with me, and Best Buy didn't even bother to return my phone calls.

A highlight that I wasn't able to include in my column had to do with one of the many obstacles that Driscoll confronted in pursuing the case. Just two months before trial, the Federal Circuit Court handed down a decision called In re Seagate Technology, LLC that would have a dramatic impact on patent infringement cases.

"It basically was a game changer. It now raised the level to prove willfulness from a negligence standard up to a recklessness standard, which is a considerable increase in the burden of proof," Driscoll said. "That took the wind out of our sails, and at that point I just wanted to stop."

It's hard to blame him. I'm reminded of a line from a review of Flash of Genius written by Peter Hartlaub of the San Francisco Chronicle: "It's hard to tell whether Kearns is being stupid or noble, and halfway through the movie, most sane people in the audience will be rooting for him to give up the fight."

But Driscoll was crazy enough to keep going.

"I probably would have stopped, if they had just been even remotely reasonable," he said. "On the eve of trial I made yet another offer, this one just basically to cover the out-of-pocket expenses. And again, the response that we got was unrealistic. It was a slap in the face. And at that point, it didn't make a difference. It was all sunk at that point, and we just went for broke."

There was one other highlight that I dearly wish I could have fit into the column. At one point during the trial, the defendants attempted to demonstrate that an IBM disk drive with a built-in fan was "prior art" that invalidated Corcoran's patent. But the dramatic demonstration failed when the drive wouldn't fit into the drive bay slot.

When Driscoll and a colleague, Mark Segal, were preparing Driscoll's closing argument, you can guess what happened. Playing off the famous glove line in the O.J. Simpson trial, they came up with this gem: "If the drive don't fit, the patent's legit!"

"It must have been around midnight, and I don't know if it was the fact that we'd been up five days straight or what, but we were hysterical," Driscoll said. "We were crying, we were laughing so hard. And then we'd go to start work, and again one of us would start to snicker, and we'd lose it again. It took us forever to get back on track."

Early the next morning, Driscoll woke his wife and told her what he was going to say. "She shook her head and said, 'You're just not that funny. Don't do it,'" he recounted.

But he did it anyway. "The reaction I got was almost, like, disbelief that I would actually try something like that," Driscoll said. "Everyone kind of laughed and shook their heads."

In the end, Comaper won the case - the jury returned a verdict of willful infringement. And despite the fact that attorneys' fees are almost never awarded in patent cases, the defendants were ordered to pay them, to the tune of nearly half a million dollars. Driscoll deserved it, if only for that line in his closing argument.