Robert A. Van Nest

Van Nest has had some significant victories in the last couple of years, including one this past September defeating one of the largest consumer class actions ever filed. It sought as much as $5 billion from chipmaker Qualcomm Inc. for as many as 250 million cell phone purchasers.

The class plaintiffs claimed Qualcomm had a “no-license, no-chips” policy that gave it a monopoly over the chips, allowing it to improperly inflate prices to phone purchasers. The 9th U.S. Circuit Court of Appeals ruled that a nationwide class was improper. Stromberg v. Qualcomm Inc., 21 DJDAR 10215 (9th Cir., Sept. 29, 2021).

That appellate victory followed a similar one the year before against the Federal Trade Commission about the same alleged Qualcomm policy. FTC v. Qualcomm Inc., 2020 DJDAR 8430 (9th Cir., Aug. 11, 2020).

Perhaps most significant was his firm’s victory four months earlier at the U.S. Supreme Court, which finally ended an $8 billion patent infringement lawsuit Van Nest had been fighting for more than a decade. In a 6-2 decision, the court ruled that Google’s use of Oracle’s Java API code in the Android operating system was fair use.

Supreme Court specialist Tom Goldstein argued the appeal, as he had the FTC case. But Van Nest said the ruling reflected all the evidence he and his team proved at trial. “I’m very proud of the fact that our trial record was the basis for Justice [Stephen] Breyer’s opinion,” he said. Google LLC v Oracle America Inc. 140 S.Ct. 520 (2021).

Van Nest was less successful with a trial he concluded in February in Waco, Tex. A company whose software analyzes data from smart thermostats accused the Google Nest thermostat of infringing four of its patents. Only two reached the jury, which found that just one claim of one patent did infringe. It awarded the plaintiff $20 million. EcoFactor Inc. v. Google LLC, 20-cv-00075 (W.D. Tex., filed Jan. 31, 2020).

It could have been worse. The plaintiff had asked for $30 million in past damages for each patent plus $100 million more in future royalties.

Van Nest said the verdict is important for patent litigators generally. It provides the patent bar a little more information about the court and the jury pool in Waco, where U.S. District Judge Alan Albright has amassed a docket of about 800 patent cases since late 2018.

“It’s hard for people to understand what the results are going to be down there. They’ve been wide-ranging,” Van Nest said. There have been defense verdicts and a $2 billion verdict, he noted. “The jury’s out, so to speak, on juror attitudes in Waco.”

But his February verdict is not an outlier. “The thing that I learned from this verdict is it’s possible to get a fairly well-educated jury in Waco.”

– Don DeBenedictis