Kevin P.B. Johnson

It was Jan. 29, 2020—for Johnson, a day to remember: a Central District jury came back with a $1.1 billion patent infringement verdict for his client, The California Institute of Technology, in its suit against Apple Inc. and Broadcom Ltd.

And as Johnson was absorbing that triumph, his phone rang with the further good news that a judge overseeing a bench trial in Delaware had issued a complete defense verdict for his client C3.ai, an artificial intelligence software platform, and its CEO Thomas Siebel, in shareholder litigation over the value of software and other intellectual property in an acquisition.

“I almost hung up my cleats,” Johnson recalled of his immediate reaction to the twin wins. “Two of the biggest cases I’ve had, one on offense and one on defense. I told my wife, ‘I think I’m done.’”

That was hyperbole. Johnson continues to litigate cases for clients including Samsung Electronics Co. Ltd., Salesforce.com Inc., Twist Bioscience, Natera Inc., Juniper Networks Inc., Bio-Rad Laboratories Inc., MediaTek Inc., Sony Corp. and others.

As lead counsel for Caltech, Johnson persuaded jurors that Apple and Broadcom infringed three patents relating to error correction technology used in the defendants’ Wi-Fi devices.

The trial win followed successful summary judgment motions on some claims, including the elimination of the defendants’ invalidity and inequitable conduct defenses.

During post-trial motions, U.S. District Judge George Wu affirmed the verdict and awarded additional relief including pre-judgment interest. The California Institute of Technology v. Broadcom Ltd., 16-CV03714 (C.D. Cal., filed May 26, 2016).

Johnson gave the closing argument for Caltech.

“The case came down to credibility,” he said. “The defense advanced new non-infringement theories during their close. That left their flank exposed. I said, ‘Ask yourself, isn’t this just a last-ditch effort that defies credibility?’”

He and the trial team also showed that Apple’s expert witness testimony had problems, Johnson said.

“We established that their ‘independent’ expert had worked for Apple on lawsuits for 10 years. That made ‘dependent’ expert a more appropriate term,” he said.

“And their reports on non-infringement used word-for-word identical language” that Johnson showed had been written by a lawyer. “That also cut into their credibility.”

Johnson said the win for Siebel’s company was deeply satisfying. “Tom Siebel is a Silicon Valley legend, and we’d tried another case for him earlier,” he said.

The shareholder claims were “nonsense,” he added, “but when you have these allegations hanging over your head, they can end careers.”

The win included an award of fees and costs that Johnson estimated at more than $10 million. Blattman v. Siebel, 15-CV00530 (D. Del., filed June 24, 2015).

The heart of litigation is connecting in court with sympathetic narratives, Johnson said. “My grandfather was a great storyteller, and I inherited that. It’s one reason I got into law. Every trial is a story, and you win with a coherent, strong bringing of facts.”

— John Roemer