There’s a reason that Law and Order has been on the air for decades – trials can provide fascinating stories. While not every case contains TV-worthy drama, the process of trying a case in court calls for crafting a compelling narrative that both educates and persuades a jury. Laurel M. Gilbert, partner in the Litigation group, uses her prior experience in public relations and marketing along with her legal expertise to build cases that deliver the right results for her clients. Here she explains why patent litigation is so important for businesses and how the Hinckley Allen team works collaboratively to construct strong cases for every client.
How does your background serve as an asset to your clients?
I worked at a PR agency for two years before I went to law school. Although it is a different type of background for a lawyer, I have found that it works well for me as a trial attorney, especially when it comes to speaking in court. Trials are all about communication and learning how to communicate abstract concepts.
Though my background is a bit unconventional, it has been one of the best things I could have done. I double majored and graduated with a BA in communications and BS in marketing. As a litigation attorney, writing and oral advocacy is the core of my work because not everything goes to trial.
What does your practice focus on?
My practice focuses on intellectual property litigation, though I also work on general commercial litigation. Within intellectual property, most of my litigation is patent litigation. I represent both plaintiffs and defendants, so my cases revolve around either our client alleging someone is infringing its patent or a patentee accusing one of our clients of infringing its patent. When we are the defendant, there can be both non-infringement and invalidity defenses. Essentially, we would both be saying, “we don’t infringe the patent and here’s why. But also, the patents are invalid, so even if we did infringe, you can’t enforce them.” That’s really the bread and butter of patent litigation.
Why is patent litigation so important to businesses?
Enforcing intellectual property rights or defending a product or process against intellectual property infringement allegations can be truly a central concern for a business. The stakes are high when it comes to patent litigation. There are huge revenue ramifications for businesses on both sides, and permanent injunctions are also often sought. Because of this, I’ve found that clients take these cases to trial more than other types of commercial disputes.
How do you prepare to defend an intellectual property litigation case?
The first step to a successful defense in a case involving a consumer product is a strong understanding of a client’s business, how the product works and is manufactured, and what the claims of the patent mean.
I spend a lot of time talking with our clients to understand their business and our team works closely with them to gain first-hand knowledge, including going to their facilities to see the processes that are involved. In a recent case for our Lacerta client, we went to their facility to see how their plastic products were made and what thermoforming looked like. We needed to see the actual extrusion process happening because we needed to be able to explain it clearly to a jury.
We also usually have a technical expert in those cases, and they will get involved before claim construction to help with developing the strategy for the case, which is unique to patent litigation. Most other types of litigation do not utilize experts until you are all the way through fact discovery. In patent cases, technical experts are much more of a strategic partner than they might be in other cases.
How do you create a compelling case that the jury can understand?
I enjoy patent litigation and IP litigation because it is complex and there is so much that goes into every case. You need to have a persuasive story, and that’s an area where our team at Hinckley Allen excels. We explain the technical aspects of the case in a way the jury can understand. I use a lot of analogies and metaphors. Both patent trials that I’ve worked on had well developed analogies for the case. We use analogies and metaphors to demonstrate the concept of what the patent says, but also give examples of how that might work in the real world with a concept that the jury is familiar with.
What do you enjoy about being a trial attorney?
You learn so much about how to be good at other aspects of litigation from being part of a trial team. As a part of a trial team, you get to see how the processes of discovery really matter and how they provide context during the trial. When it comes to trying the case in court, there’s nothing else like it. It’s the ultimate on-your-feet experience. Things change all the time during a trial, and you need to be nimble and responsive. Trials are wild and they can be completely unpredictable. You have to know the case well, so that you can deal with an unexpected witness or an unexpected argument that the other party has never made before. It comes down to preparation and understanding the case, which our team does well.
