McKool Smith Principal Steven Rizzi is an accomplished patent litigator who represents clients in complex disputes involving semiconductor, software, telecommunications, data storage, and other technologies. He regularly serves as lead counsel in jury and bench trials in federal courts nationwide and before the ITC, securing favorable settlements, pretrial rulings, and judgments. Steven also advises clients on litigation avoidance, licensing agreements, and intellectual property issues arising from technology-driven transactions.
Check out the Q&A below to learn more about Steven and why he’s ranked as a Chambers USA leading lawyer for Intellectual Property: Patent.
How do you build trust with clients?
It’s not enough to be a great lawyer. Clients need to know that we are trusted partners in every sense of the word. And that means taking the time to fully understand the client’s objectives, especially what constitutes a successful outcome. Every case and every client is unique, and more often than not it’s not about winning at trial. Some clients are more hands-on than others. Needless to say, communication is critical, and try hard to ensure the right level of communication with every client. This gives clients the comfort that I have their back. It’s also critical to involve the client in developing and executing on a case strategy as part of that communication.
Walk us through how you prepare for a major trial: from the moment you take the case to the moment you walk into the courtroom.
Here again the process starts with helping the client define their objectives, which of course differ depending on whether I am representing the plaintiff or defendant. As a plaintiff you start out the case in full control and have the benefit of planning. But then you are playing defense as the case proceeds, fending off whatever challenges are raised by the plaintiff. As a defendant you typically have no notice before the case is filed so you have to play catch-up. In either case the same adage holds true: the only thing predictable about litigation is how unpredictable it is. So as a case progresses toward trial it’s important to adapt and recalibrate, particularly at the usual inflection points in a patent case: claim construction, fact discovery cut-off, expert discovery cut-off and summary judgment. In this manner I can eliminate, or at least minimize, surprises at trial. Having been on both sides of the aisle throughout my career helps me better anticipate my adversary’s next move and be prepared for it.
What case changed how you practice, and what specifically do you do differently now because of it?
Every case I handle changes how I practice. Although I have been practicing for more than 30 years, I learn something new in every case, whether it be a nuance of the law I had not previously encountered or a strategic maneuver employed by my adversary. Every case adds to my knowledge base and bank of experience and makes me a better lawyer. The law has also evolved significantly since I began practicing, and every significant case law development presents strategic opportunities and risks. Early in my career the Supreme Court decided Markman v. Westview Instruments, which was the genesis of the now ubiquitous Markman hearing used in nearly every patent case to resolve disputed issues of patent claim construction as a matter of law. And for the first 20+ years of my career, Section 101 of the Patent Act was a non-issue and almost never raised as an invalidity defense. That changed after the Supreme Court’s decision in the Alice case in 2014, and patent challenges based on lack of subject matter eligibility are raised in nearly every case. This case has caused me to counsel clients against asserting vulnerable patents and to include allegations in the complaint that address the Alice framework when such patents are asserted. As a defendant Section 101 provides an opportunity to raise patent invalidity due to lack of subject matter eligibility at the outset of the case, which makes it unique among defenses to patent infringement.