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Trial Pros: Knobbe Martens' Joseph Re

Law360, New York (March 11, 2016, 2:27 PM ET) --

Joseph R. Re has been a litigation partner at Knobbe Martens Olson & Bear LLP in Irvine, California, since 1990. Re joined the firm after completing his clerkship with the Honorable Howard T. Markey, Chief Judge of the United States Court of Appeals for the Federal Circuit. He has a very active patent trial and appellate practice, primarily in the medical device and health care areas, and has tried patent cases all over the country. His litigation success has led to numerous awards and honors, including being named by Law360 as an Icon of IP in 2016 and an IP MVP in 2014. Re has served as the president of the Federal Circuit Bar Association and on the Federal Circuit’s Advisory Council. He has also served on the board of directors for the American Intellectual Property Law Association and is an AIPLA Fellow. Q: What’s the most interesting trial you've worked on and why? A: It was a 2004 jury trial in a patent case where I represented a small local Orange County, California, company called Masimo Corp. against Tyco Healthcare-subsidiary Nellcor Puritan Bennet. Nellcor dominated the pulse-oximetry market for years and my client was breaking into that market with revolutionary technology. That new technology allowed these devices to measure blood oxygen saturation even during patient movement. My client had gotten the company off the ground and raised $90 million because of the patents on this technology. Now was the moment of truth for the company and its patents. We had an attentive jury and were confident of a favorable outcome because we were representing an amazing innovator who was trying to make his technology available to patients despite the actions of the infringer. The jury did uphold the patents, found infringement and awarded damages. (The Federal Circuit affirmed.) While my team continues to repeat the many war stories from this grueling but exhilarating trial, what made the case so memorable and interesting to me was how it showed the importance to the public of the patent system. The patent system was the only way for my client to protect the technology and bring it to market in the face of a corporate giant who had no interest in seeing the technology flourish. I had always been a big fan of the patent system, having served as a law clerk for a great patent lawyer named Chief Judge Markey at the Federal Circuit. But this was the case that firmly convinced me why our country so desperately needs a strong patent system. It was a shining example of how the patent system fosters revolutionary improvements in technology to all our benefit. My client’s technology was at risk of never making it to patients at all, but for the patents, the investments based on those patents

Joseph R. Re

and the court enforcement of those patents. As a result of the patent system, and my clients’ subsequent successes, this technology is now used to monitor over 100 million patients a year, with remarkable and even life-saving results. Q: What’s the most unexpected or amusing thing you've experienced while working on a trial? A: Something unexpected occurred in that same 2004 trial — and it was not amusing. After giving what I thought was a good closing argument, the court called for a recess because a juror had gotten ill. Seconds after the jury was excused, opposing counsel argued that I had made a mistake in my closing and now Nellcor should be given an opportunity to add some detail to the record by calling five witnesses the following day. Giving Nellcor every benefit of the doubt, the court allowed the additional testimony. The next day, Nellcor called only one witness. When Nellcor gave its closing argument, it became obvious to me what Nellcor really wanted — another day to prepare a new closing argument. Most of its power point slides contained various quotes from my closing and the whole closing was an attack on me personally. I then had to respond immediately with a rebuttal close. The jurors’ faces told me they saw through this ploy. This is the only case I know where the trial was reopened after one side had delivered its closing argument. Q: What does your trial prep routine consist of? A: Every jury trial requires thorough jury research. I need to learn how the jurors deliberate and what they retain and use in those deliberations. I also try to learn what confuses them. In complicated patent cases, that is so important. I work hard at trying to simplify my cases so jurors do not get overwhelmed with extraneous details. I love debating with my team members about how the case can be summed up thematically. Then I make sure the details fit within that theme, and if not, we continue to adjust the theme until it best captures the key facts. Q: If you could give just one piece of advice to a lawyer on the eve of their first trial, what would it be? A: Make sure you get enough sleep by relying on your team to do tasks while you are sleeping. I remember long ago when I crashed in the middle of a trial. Back then, I thought one could survive on adrenaline. I learned you cannot. Q: Name a trial attorney, outside your own firm, who has impressed you and tell us why. A: Fred Bartlit. No matter how crazy and stressful trials got, he always seemed so relaxed and calm, enjoying every minute of the trial. That is something everyone learns after they have tried a number of cases, but it is not so easy to do. The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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