The legal Geek Squad — Brad Engdahl, Bill Manning, Eric Jackson and Matt Woods — built a courtroom replica to prepare for trial

As Seen in the June/July 2005 issue of Minnesota Law & Politics

0 SPECIAL FOCUS: VTELLECTUAL PROPERTY

A (COMPUTER) CHIP ON THEIR SHOULDERS

Robins Kaplan lawyers go to school to learn

computer engineering — and end up with a land-

mark patent-infringement settlement on behalf of

Intergraph Corp. By Rebecca Boever

Photography by Larry Marcus

Every morning millions of people arrive at their offices, cup of coffee in hand, and turn on their computers. Few, if any, think about the process that takes place within the computer enabling them to search the Internet, write a paper or

download music. The speed with which computers can perform these functions is remarkable. But technology hasn't always been this fast. It took years and years of innovative thinking by computer scientists to enable the speed of today's machines. Just what was this process? Does anyone really understand the technology behind today's high-performing desktops?

The litigation team from Robins, Kaplan, Miller & Ciresi (RKMC) that represented Intergraph Corp. in a patent

SPECIAL FOCUS: 'V TEL L EC TUA L PROPERTY

infringement case against Hewlett-Packard does. In fact, the team of A. James Anderson, Brad Engdahl, Eric Jackson, William Manning and Matthew Woods not only learned the minute details of computer engineering, but learned it well enough to teach it to a jury — people with no technical knowledge about computers. And the team members learned it so well that last January they secured a $141 million settlement from HP for Intergraph.

But the litigation team never had the chance to show off its newfound computer knowledge in court. "This case settled before there was any trial and before there were any appeals," says Manning, lead attorney on the team. "Many times in patent cases, a settlement of this size would not occur before there was at least an appeal of some ruling by the court." The team was ready to go to court, but because of its intense prepara-tion, that never happened.

The patent infringement dispute involved technology contained in Intergraph Corp.'s Clipper Chip that was being used in the Pentium processors sold by Hewlett-Packard. The technolo-gy allows computers to function at a rapid pace by managing the flow of data between the various memory sys-tems and the comput-er's central processing unit. Prior to the inven-tion of the Clipper Chip technology, a computer would have to wait for data to process between three different memory loca-tions. Only one piece of memory could process at a time, but the chip allowed for simultaneous information processing.

The result? A much faster, more effi-cient computer. "We take so much for granted when we push that button and boot up our computers, and we do it so casually nowadays and it has become a staple of our lives," says Woods, who worked on proving liability and infringe-ment. "So much about this case was his-torical, about turning back to a time when most things weren't standard. We're deal-

ing with a lot of people who really creat-ed the landscape upon which we all now rely and take for granted."

The creators of the technology within the Clipper Chip are Howard Sachs and James Cho, and it was from them that the litigation team from Robins Kaplan gleaned much of its knowledge. "Working with people like Howard Sachs and James Cho, who are such wonderful people and so brilliant, and trying to convey some of that brilliance — it's exciting and a lot of fun," says Woods.

But before they could convey the bril-liance of the inventors, the litigation team had to learn the invention. That translat-ed into a three-year exhaustive process learning computer engineering. "What we did is what we as a firm do with complex-ity. We very respectfully hire the best peo-ple in the country and start asking a lot of simple questions," says Manning. "You read a lot of books, a lot of things about computer micro-architecture."

So they learned about the work-ings of a computer. But learning something and being able to commu-

nicate it are two different things. After their years of learning, they had to turn around and teach a jury the intricacies of the three patents in question. Simplifying the invention was a grueling process, and even the simplified statement would require a lot of detailed explanation to the jury. When handling a case like this, the patents can become quite intricate. "All three [patents] are 40 pages long," says Manning. "They're enor-

mously complicated, involving algo-rithms and things that are, frankly, hard for the common person — meaning us — to read. But that's what we need to do is explain them to the jurors."

In preparation for the case, they built a replica, with precise dimensions, of the courtroom in which their trial would take place. "We usually do things like that on more of an informal basis. This one was a little bit more formal," says Manning. "Because of all the technology and all of what we were going to have to do in a small space, we were going to get it right beforehand."

The courtroom reproduction was com-plete with a jury box, witness stand, judge's bench and council tables. "I think one of the real strengths of this law firm in general is that we prepare cases for trial, not for settlement, which is a very different attitude," says Manning. "We always expect it to go to trial and always think toward the trial, then if the settle-ment happens, it happens. But it happens because you are ready for trial."

Their preparation paid off, as it has before for Intergraph. With this settlement, the total that Robins Kaplan has achieved for Intergraph Corp. is $396 million. Prior settlements were reached with Dell Inc. and Intel Corp. for $225 million, with Gateway Inc. for $10 mil-lion and future royalties on Gateway Inc. and eMachines Computer Systems sales, with IBM for $10 million and a cross license, and with Advanced Micro Devices Inc. for $10 mil-lion plus up to $5 million per year for three years.

The settlement with Hewlett-Packard happened just two weeks before the scheduled trial date. "In my mind, what was the most fun about it was to take enor-mous complexity and tell a

simple story," says Manning. "That may look easy from where we're sit-ting today, but I can tell you that we had many a moment when we were wringing our hands, trying to get from the complexity that was difficult to understand to get to a place where we can tell a story. Ultimately, everything can be reduced to a simple story, it just takes time." L&P

Reprinted from the June/July 2005 issue of Minnesota Law & Politics magazine. 102005 Key Professional Media, Inc. Reprinted with permission. All Rights Reserved.

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BUSINESS

Bill Manning, a lawyer honored and hired by an old adversaryBy NEAL ST. ANTHONY, STAR TRIBUNE nstanthony@startribune.com

Bill Manning, a Minneapolis patent and personal injury lawyer, is kind of the legal-wars embodiment of that adage: “If you can’t beat ‘em, join 'em.”

Manning’s been named one of the dozen best intellectual property lawyers in the land, based on research and surveys of Fortune 500 general counsels by BTI Consulting Group, creator of the annual “BTI Client Service All­Stars” ranking. He is also one of Robins, Kaplan, Miller & Ciresi’s top revenue producers, say senior partners.

Manning was nominated by the in-house lawyers at Advanced Micro Devices (AMD).

The irony is that Manning’s side thumped AMD and the titanic likes of Dell, Intel, IBM and Toshiba in a celebrated patent infringement case that brought hundreds of millions in awards to Manning’s smaller client, Intergraph Corp, of Alabama, in 2004.

After Manning made a compelling case that the larger company had unfairly copied Intergraph’s microprocessing-system design, AMD engaged in settlement talks led by AMD General Counsel Harry Wolin that resulted in licensing-related payments of $25 million over several years.

“Bill, whom I had never met until we were sitting across from each other when we settled that [Integraph] case, came across as a man of integrity,” Wolin said in an interview this week. “I was impressed with him and the results he got in that case and other cases in which he was involved.

“I felt that he was the kind of lawyer who, if your case was good, he would tell you. If not, he would tell you that. I thought he was the kind of outside counsel that I would want to hire.”

Over five years, Manning-related cases led to recovery of about $500 million against AMD and the other technology companies that Intergraph accused of ripping off its patented “Clipper” memory-cache design that boosted PC speed and functionality.

Today, Manning represents AMD in defending its patents against Samsung in federal court in San Francisco. Manning also successfully defended AMD recently against

alleged infringement by Silicon Graphics in a case brought in Milwaukee.

The 59-year-old Manning, who served as an assistant state attorney general in the 1980s, has engaged in more than 300 lawsuits over the past 30 years representing the taxpayers, corporations and injured individuals in a rare practice that has settled at the confluence of intellectual property and personal injury.

Manning, a basketball player and psychology major out of Creighton University, started out as a medical products salesman in New York before he returned home to the Twin Cities 35 years ago to emoll in law school at Hamline University.

Manning is happy to delve into the mind- numbing technical minutiae of his patent cases. But he says the trick is to present a cogent, understandable and appealing case to jurors. Research shows that jurors make decisions based on less than half of the evidence and testimony. And the simpler you can make the case, the better, in most cases.

“Sometimes lawyers get too close to their cases,” said Manning, who sometimes rehearses before citizens who are brought into the firm’s mock courtroom. “Jurors make decisions at a ninth- or lOth-grade level [of understanding], I try not to stand up here and present a lot of legalese.”

A pretty measured guy by most accounts, Manning gets most passionate when he talks about the other dimension of his practice— personal injury work.

‘Theii one chance at justice’One that got national attention was an $8.5

million jury award, upheld by the Wisconsin Supreme Court in 1999. Steven Sharp, an Oregon teenager, lost both arms when the power takeoff mechanism on a Case tractor started up on its own, thanks to a design failure that Manning said Case has yet to address.

An award-winning book about the case was written by retired University of Minnesota professor William Mishler: “A Measure of Endurance: The Unlikely Triumph of Steven Sharp.”

Manning also won a confidential, seven­figure settlement prior to trial for former Minneapolis Police Officer David Holm, whose wife died in an accident in which Holm

Bill Maiming

was severely burned after their minivan burst into flames thanks to a well-documented fuel­leak defect that Chrysler Corp, had failed to warn about or correct.

“Telling the corporate story can be a challenge because it requires deep listening to come to know the story that needs to be told,” Manning said. “It is frequently not apparent in the beginning of a case. Representing an individual who is seriously injured is a qualitatively different experience ... standing in that person’s shoes and attempting to give them voice is an awesome responsibility. It is their one chance at justice.”

Despite some high-profile cases and attendant notoriety in the legal and computer­industry trade press, Manning has avoided most publicity. He said he is humbled by the plight of his personal injury clients, and grateful for the technical experts who school him and the colleagues with whom he develops cases.

“No one accomplishes anything alone,” said Manning. “It is my style to let actions speak for themselves and let the results speak as they occur.”

Manning’s legal hero is Nelson Mandela, the onetime political prisoner and lawyer who emerged from prison to be elected the first black president of South Africa. Manning endowed a scholarship fund at Hamline Law School in Mandela’s name instead of his own.

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StarTribuneMAY 2 9. 2 0 1 1 • STARTRIBUNB.COM MINNESOTA'S TOP NEWS CHOICE • MINNEAPOLIS • ST. PAUL

Being ready for trial can avoid court

StarTribuneThe litigation team of Sam Walling, Aaron Fahrenkrog, Bill Manning and Jake Zimmerman engineered a $283 million

settlement in a patent-infringement lawsuit by client Advanced Micro Devices against Samsung Electronics.

• Jurors and judges in patent cases can be unpredictable, so Bill Manning tries to avoid the courtroom.

By NEAL ST. ANTHONY, STAR TRIBUNE nstanthony@startribune.com

When a litigator whips an adversary on a big case, that feels good. When the adversary subsequently hires the same litigator to go after another corporate target, well, that feels even better.

Huge Advanced Micro Devices (AMD) recently won a $283 million settlement in its case against electronics titan Samsung over charges that the Korean manufacturer infringed on seven of AMD’s patented semiconductor products. The settlement was quietly disclosed in an AMD regulatory filing earlier this year.

That settlement marked another favorable pretrial resolution for Bill Manning’s intellectual property litigation team at Minneapolis-based Robins, Kaplan, Miller & Ciresi. The Manning crew has achieved settlements totalling nearly $1 billion for a variety of technology clients over the last decade.

“We are pleased with the settlement we got and with Bill and his team,” Harry Wolin, general counsel of AMD, said in an interview earlier this month. “They set out a nice strategy and they were able to present a compelling case. I’m pretty sure that Samsung didn’t want to write that check. But it was a lot less than the $1 billion that we were going to ask for in court. And [Manning’s team] has always been more prepared than the other side.”

Wolin found that out the hard way. Several years ago, Manning won several hundred million bucks’ worth of favorable settlements against AMD, Dell, Intel, Hewlett-Packard, IBM and others on behalf of smaller, Alabama­based Intergraph’s microprocessing system, including the “Clipper” memory-cache technology.

The device dramatically increased speed, memory and data flow for desktop computers.

Wolin, at a settlement conference with Intergraph and Manning, called him a good lawyer and a “man of integrity.” Then Wolin hired Manning to sue Samsung.

Manning, a former assistant Minnesota attorney general, also has proven to be one of the Robins firm’s top revenue producers over the last two decades in a practice focused at the intersection of personal injury and patent­infringement law.

The veteran lawyer said his approach is rooted in meticulous preparation, breaking down complex technology to simple concepts that can be understood by laypeople and

presented multiple times by Manning and younger associate lawyers and expert witnesses to “jurors” at the firm’s mock courtroom. Sometimes, they even invite the other side to show them what they’ve got.

Manning, 60, said he increasingly calls on his team of three 30-something associates to not only research, but to argue up to half the pretrial motions, a departure in practice for most high-profile litigators. They’re smart and deeper into the technology than the old warrior.

Filing carts = computer chipsFor example, to explain how Pearl Cheng,

an AMD scientist, 15 years ago innovated a patented memory chip with dedicated circuitry from each of its subarrays that enhanced the performance of memory through a “continuous burst mode,” Manning hired a design team to construct a physical model that resembles filing carts containing color-coded files and papers. That helped jurors understand what distinguished the “Cheng 990” patented invention that AMD said Samsung had copied.

“It helps overcome that level of complexity that the jurors may not understand,” said Sam Walling, a Robins associate who helped make the AMD case.

Manning’s two other young guns are Jacob Zimmerman and Aaron Fahrenkrog. Their backgrounds include economics, chemistry and anthropology.

Most companies don’t set out to steal patented innovations, Manning said.

“People use the latest idea to stay current,”

Manning said, explaining how “patent creep” begins. “It’s no different than hunting on our property. If you are going to hunt on our property, you are going to pay me.”

The Manning team on the AMD litigation totaled about 60 lawyers, scientists, economists, prop builders and others who spent a few hours to months. The case, which never went to trial, lasted three years.

The Manning doctrine attempts to “drive the process” to a favorable settlement, including maintaining cordial relationships with the other side’s lawyers and regular settlement overtures as the opponents learn what’s planned for at trial, including sharing expert witness testimony and exhibits.

There’s a lot of risk once a trial starts —what with confused jurors, impatient judges, tough opposing counsel and other variables. And even if you get a verdict, about 50 percent of patent cases are reversed by a special federal appellate court that reviews the cases in Washington, D.C. Better to present the most compelling case prior to trial.

Years ago, Manning was disappointed in the resolution of a case brought by his client, Xerox, against Hewlett-Packard. There was a summary judgment against Xerox in the patent case.

“I saw some things from the other side that conveyed to me the importance of meticulous pretrial preparation,” Manning said. “We love trial. But it’s been all [pretrial] settlements since then.”

Manning said his team has produced about $10 in settlement proceeds for every dollar his clients have invested in their cases.

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