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Kutak Rock Wins $46.7 Million Award For Client in Patent Infringement Suit 6/30/16  06/30/16 9:02:43 AM Printer Friendly VersionPrinter Friendly Version

Arctic Cat holds patents for its off-throttle steering technology. The court found that BRP committed substantial acts of infringement with its Sea-Doo personal watercraft, shown here, on the intellectual property of Arctic Cat. 
– Photo courtesy of BRP
Kutak Rock Wins $46.7 Million Award
For Client in Patent Infringement Suit

By Andy Roberts
The Daily Record

You could say this verdict made a splash.
On June 1, a federal court jury in Florida found in favor of Arctic Cat Inc., a Kutak Rock client, on Arctic Cat’s complaint for patent infringement against Bombardier Recreational Products Inc. and BRP U.S. Inc. (BRP).
United States District Court Judge Beth Bloom awarded Arctic Cat a final judgment of almost $46.7 million.

The verdict ended a case that began in October of 2014, according to Aaron Myers, a partner at Kutak Rocks Minneapolis office and member of the team that represented Arctic Cat in court.
“There were multiple patent cases pending between these companies,” Myers said.
Mediation efforts that were aimed at resolving the cases went unresolved, he said. “We went to trial.”
Other cases, involving different patents, are pending. A couple of those cases are in federal court in Minnesota, where Arctic Cat is based, with more in Canada, home to BRP.
Myers said the case was filed in Florida for “a handful of reasons” including the probability of finding people who would appreciate the technology, which related to personal watercraft.
“I think it was nine days of actual jury trial,” Myers recalled, with the courtroom proceedings beginning on May 16.
The jury found the defendants had willfully infringed on two Arctic Cat patents related to the steering technology for personal watercraft (PWC). That was based on the sale of Sea-Doo PWC models. The jury’s finding of willfulness qualified the verdict for an enhanced award of treble damages – an amount up to three times the original reward – to Arctic Cat.
Myers said the case was not without its challenges. He noted that patent lawsuits are typically “extremely hard-fought cases” and frequently expensive for companies to litigate. Patent cases also present the challenge of presenting complex technical subject matter in a limited period of time to a jury that is typically made up of people without a background in the area of technology that is in dispute.
“That’s always a hard thing to do,” Myers said, adding the attorneys hope to find folks who will put in the time and work to understand what is being presented.   
“We were blessed to get a jury of those types of people.”
Arctic Cat’s claims centered on two patents based on “controlled-thrust steering” systems that steer jet skis or personal watercrafts (PWC) that cannot be steered without thrust. Myers said that by the late 1990s the federal government had released studies that discussed the safety issues presented by the inability of PWCs to steer in “off-throttle” situations.  
Controlled-thrust steering, Myers said, was developed by Arctic Cat, which applied for a patent in 1999. The innovation improved the ability of the craft to steer in an off-throttle situation or to avoid collisions.
“It’s a life-saving technology” that helped avoid an industry problem, and Arctic Cat ultimately received seven patents on its controlled-thrust steering technology.
The jury found BRP knew the patents were out there and infringed anyway. At trial, evidence was presented that BRP had hired an agent to try to buy the patents from Arctic Cat without disclosing that BRP was the intended buyer.
“That was a compelling fact at trial,” Myers said.
BRP could have approached Arctic Cat about licensing the patents, Myers said, instead of surreptitiously trying to buy them. Getting the right people on the jury was a real key to winning the case.
“You’re trying to get a sense for somebody who’s going to take their civic duty real seriously,” Myers said. “Sometimes you get a great jury and sometimes you don’t. We couldn’t be happier.
“They took their work very seriously,” he added. “I think that every lawyer  … involved in this trial can appreciate that.”
Myers said he simply believes the jurors saw that Arctic Cat’s patents were in place and that BRP continued to infringe on them.
The case came to trial and a verdict was found in roughly a year and a half, Myers said, “Which, for a patent case, is remarkably fast, … as efficient as any case I’ve been involved with.”
He also praised the rest of his litigation team. Myers was joined by Kutak Rock colleagues Niall MacLeod and Diane Peterson from the firm’s Minneapolis office, plus Nicholas Boebel, a former co-worker, from Seattle-based Hagens Berman. 
“For me, I think it made it even more special to team up with him [Boebel],” Myers said.
Patent law does not allow an attorney to handle a large number of cases at the same time, Myers said, due largely to the amount of work needed to prepare for them.
“Sometimes you only have one of these going on at a time,” he said. “It’s not like the type of practice where you have 20 cases.”
A former newspaper reporter in Brookings, S.D., Myers said he is “kind of the rare lawyer who does this.” Each case provides him an opportunity to learn new things he finds really fascinating in an interesting way.”
This case, also, was extremely satisfying.
“We appreciate the time and attention the court and the jury gave to this case,” Myers said. “We’re really humbled by that. … We’re very happy that Arctic Cat’s intellectual property rights were respected in this case.”
Kutak Rock LLP has 500 lawyers across the nation who conduct a diversified practice in corporate law and corporate finance, litigation, public finance, employment and employee benefits law, real estate, health care, securitization, banking, bankruptcy, insurance, intellectual property and technology law, tax, tax credits, antitrust, and environmental law.
Founded in Omaha, the firm has offices in Atlanta; Chicago; Denver; Fayetteville, Ark.; Irvine, Calif.; Kansas City, Mo.; Little Rock, Ark.; Los Angeles; Minneapolis; Oklahoma City, Philadelphia; Richmond, Va.; Rogers, Ark.; Scottsdale, Ariz.; Spokane, Wash.; Washington, D.C.; and Wichita, Kan.
For more information regarding Kutak Rock LLP, please go to the firm’s website at: www.kutakrock.com.

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