For over 23 years, Mr. Payne’s practice has focused on the prosecution and defense of actions in Federal and State courts (at the trial and appellate levels) in the areas of patent infringement, unfair competition, trademark infringement, counterfeiting, copyright infringement, trade secret misappropriation, breach of contract, non-compete covenants, tortious interference, fraud and other areas. He has extensive experience in these areas, from the filing of a case through discovery, trial, verdict, and appeal.
Mr. Payne also has experience negotiating intellectual property contracts, including patent licenses, technology transfer agreements, and research and development agreements. In addition, Mr. Payne has represented clients in many reexamination proceedings at the U.S. Patent and Trademark Office. He has represented clients in many different engineering and science disciplines, including the mechanical, electrical, computer and chemical arts.
REPRESENTATIVE TRIALS AND APPEALS SINCE 2011
Trials and Appeals in 2015
- Dataquill Limited v. ZTE USA, Inc. (E.D. Tex): On June 19, 2015, a jury in Marshall returned a verdict in favor of Dataquill Limited on patent claims asserted against ZTE USA (the fourth largest smartphone manufacturer in the U.S.). (Other cases against Apple and Huawei were resolved before trial.) The Dataquill patents concern smartphone technology, and were asserted against ZTE’s Android smartphones. The jury found that all asserted claims were valid and infringed, and awarded $31.5 million. This was the sixth largest verdict in Texas for 2015 and the twenty-second largest nationally. The HPC team representing Dataquill included Les Payne, Nate Davis, and Blaine Larson. HPC’s team worked with attorneys from Susman Godfrey, including Parker C. Folse and Joseph S. Grinstein, as well as Johnny Ward of Ward & Smith Law Firm. Click Here To See The Jury Verdict.
- Commil USA, LLC v. Cisco Systems, Inc. (Supreme Court of the United States): On May 26, 2015, the Supreme Court issued a 6-2 decision in favor of Commil. The trial is described further below under Trials in 2011. In this landmark decision, the Supreme Court held that an accused infringer’s good faith belief in patent invalidity is not a defense to inducing infringement. Click Here To See The Supreme Court Opinion.
Appeals in 2014
- Two-Way Media, LLC v. AT&T Inc., et. al. (Federal Circuit Court of Appeals): On March 19, 2015, the Federal Circuit affirmed the $40 million Final Judgment in favor of Two-Way Media against AT&T, which is described further below under Trials in 2013. Mr. Payne argued for Two-Way Media before the Federal Circuit in December 2014. Click Here To See The Federal Circuit Opinion.
Trials in 2013
- Two-Way Media LLC v. AT&T Inc. et al. (W.D. Tex.): On March 20, 2013, a jury in San Antonio returned a verdict in favor of Two-Way Media LLC, a company based in Colorado, on patent claims asserted against several AT&T entities and its related regional carriers. The TWM patents concern audio and video streaming, and were asserted against AT&T’s U-verse television service (which employs Microsoft’s Mediaroom software). The jury found that AT&T infringed the patent claims under the doctrine of equivalents. The jury further found that AT&T had not proven the patent claims invalid, and awarded damages of $27.5 million. This was the seventh largest verdict in Texas for 2013. The Court entered a Final Judgment in favor of Two-Way Media of $40 million, after adding pre-judgment interest. The HPC team representing Two-Way Media included Mike Heim, Les Payne, and Micah Howe. The HPC team worked with attorneys from Susman Godfrey (including Parker Folse and Max Tribble). Click Here To See The Jury Verdict; Click Here To See The Final Judgment.
Trials in 2012
- PACT XPP technologies, AG v. Xilinx, Inc. and Avnet, Inc. (E.D. Tex.): On May 14, 2012, a jury in the Eastern District of Texas, Marshall Division, returned a verdict finding that two patents held by PACT were valid and were infringed by Xilinx and Avnet. The jury further found that Xilinx’s infringement was willful, and it awarded damages to PACT in the amount of $15,399,900.00. This was the eighteenth largest verdict in Texas for 2012. The District Court entered a Final Judgment of $43 million in favor of PACT after awarding prejudgment interest, enhanced damages and attorney’s fees. Click Here To See The Jury Verdict; Click Here To See The Final Judgment.
Trials in 2011
- Fractus, S.A. v. Samsung Electronics Co., Ltd. et al. (E.D. Tex.): On May 26, 2011, a jury in Tyler returned a verdict in favor of Fractus, S.A, an antenna company based in Barcelona, Spain, on all trial claims asserted against Samsung. The claims were spread across four related patents in Fractus’ Multilevel Patent family, generally covering multiband antennas used in portable communication devices, such as cell phones. The jury found that Samsung infringed the claims literally and under the doctrine of equivalents, as well as finding Samsung’s infringement willful. After finding that Samsung had not proven the patent claims invalid, the jury entered a verdict in excess of $23M, which amounts approximately to 35 cents per antenna. This was the tenth largest jury verdict in Texas for 2011. A final judgment was entered in favor of Fractus for approximately $42 million dollars, after damages were enhanced. The HPC team representing Fractus included Michael Heim, Les Payne, and Micah Howe. The HPC team worked seamlessly with attorneys from Susman Godfrey (including Max Tribble, Justin Nelson, and Victoria Cook) and Ward & Smith (Johnny Ward) to produce this result. Prior to trial, the Fractus legal team also assisted in licensing the Fractus patent portfolio to other third parties, resulting in licensing fees approaching $70 million. Click Here To See The Jury Verdict; Click Here To See The Final Judgment.
- Commil, USA v. Cisco Systems, Inc. (E.D. Tex.): On April 8, 2011, a jury in Marshall, Texas returned a verdict in favor of Commil USA, LLC on all infringement claims asserted against Cisco Systems, Inc. The jury, which deliberated less than two hours, decided Cisco induced infringement on a patent for wireless technology developed by three Israeli engineers and awarded Commil $63.8 million dollars. This was the seventh largest jury verdict in Texas for 2011. Commil had purchased the infringed patent in 2006 for $400,000.00. A final judgment was entered in favor of Commil for approximately $74 million dollars. Mr. Payne represented Commil at trial and worked with trial counsel from Sayles Werbner (Mark Werbner & Dick Sayles) to achieve this result. Click Here To See The Jury Verdict; Click Here To See The Final Judgment.
Other Representative Cases
- MicroUnity Systems Engineering, Inc. v. Intel & Dell: MicroUnity filed suit against Intel Corporation, alleging that Intel’s Pentium III, Pentium 4, and Pentium M processors infringed MicroUnity’s patents covering its “mediaprocessor” technology. MicroUnity also sued Dell, Inc. for Dell’s use of allegedly infringing Intel processors. In October 2005, one month before trial was to commence, MicroUnity, Intel, and Dell reached a settlement. Intel publicly disclosed the financial terms of the settlement as $300 million in its Third Quarter 2005 10-Q.
- Commonwealth Scientific and Industrial Research Organisation v. Lenovo (United States) Inc. et al: In 2011 and 2012, Mr. Payne and other attorneys from HPC represented the Commonwealth Scientific and Industrial Research Organisation, Australia’s national science agency, in a series of patent litigation suits involving wireless local area networking technology. These cases were settled shortly before trial on terms that were very favorable to CSIRO.
- Rock Bit International, Inc. v. Smith International, Inc.: Mr. Payne represented Smith International in its defense of Plaintiff’s claims of patent infringement. Plaintiff sought over $100 million in damages. After a Markman hearing, the court granted Smith’s summary judgment motion for patent invalidity. See Rock Bit Intern., Inc. v. Smith Intern., Inc., 82 F.Supp. 2d 667 (S.D. Tex. 1999). The court then granted Smith’s motion for attorney’s fees, awarding Smith over $2.7 million in attorneys fees and costs. See Rock Bit Intern., Inc. v. Smith Intern., Inc., 82 F.Supp. 2d 677 (S.D. Tex. 1999). The case was favorably settled while on appeal to the Federal Circuit.
- Two-Way Media vs. AOL (S.D. Tex.): Mr. Payne and other attorneys from HPC as well as attorneys from Susman Godfrey represented Two-Way Media in a patent suit against AOL on audio and video streaming patents. The case settled during trial, and after a successful Markman Ruling.
- Vasudevan Software, Inc. vs. IBM Corp. and Oracle Corp. (N.D. Cal.): Plaintiff Vasudevan Software Inc. (“VSi”) owns the rights to several database patents: U.S. Patent No. 6,877,006 B1(“the ‘006 Patent”), U.S. Patent No. 7,167,864 B1 (“the ‘864 Patent”) and U.S. Patent 7,720,861 (“the ‘861 Patent”). VSi alleged that IBM infringed the ‘006, ‘864 and ‘861 Patents by making, using, selling or importing InfoSphere Warehouse and Cognos Software products. VSi also alleged that Oracle infringed the ‘006, ‘864 and ‘861 Patents by making , using, selling or importing the Oracle Business Intelligence Enterprise Edition Plus, among other products. The case settled in the fall of 2011 after a Markman ruling.
Awards & Honors
- H Texas Magazine, Best Lawyers in Houston (2006, 2010-2011, 2013-2015)
- Super Lawyer (Thomson-Reuters) (2012-2015)