© 2015 The Texas Lawbook.
By Natalie Posgate
(Nov. 3) – A team of Norton Rose Fulbright lawyers led by Brett Govett scored a take-nothing verdict late last week in Texas’s Eastern District for a patent infringement case involving reflective insulation products.
The plaintiff, Promethean Insulation Technology, tried to convince a Marshall, Texas federal jury that Indiana-based Reflectix Inc. induced patent infringement of technology that Promethean’s owner had allegedly invented by selling its own products, which had the same technology, through distributors such as Home Depot.
After hearing four days of evidence, the jury deliberated for about three hours and ruled unanimously late Thursday night that Reflectix had violated no such patents and that the patent claims were invalid.
Had Promethean prevailed, Reflectix would have faced the possibility of paying $4.4 million in damages – or even triple that amount if the jury had found Reflectix willfully infringed on patents – and future royalties for the patents, which aren’t set to expire until 2026, Govett said.
But on a broader scope, the verdict could have had long-term repercussions for the core business of Reflectix and other players in the reflective insulation products industry, including the possibility of a re-design of its products – products that Reflectix’s customers have grown to know and love, Govett said.
“It was good for the industry to stand and fight for the patents,” said Govett, a partner in Norton Rose Fulbright’s Dallas office. “We didn’t like that another member of our industry was trying to monopolize the solution and stick it to the rest of his fellow industry members. We’d rather compete on price and product quality versus [patent disputes].”
Promethean turned to the Houston patent boutique law firm Williams Morgan to try its side of the case. Shareholder Brian Buss, one of Promethean’s attorneys, declined to comment on the outcome.
Govett said the case is just one of multiple in the industry that the inventor, Furio Orologio of Canada, has chased after in hopes of recovering royalties. He said Promethean is currently in a pending lawsuit with Soprema, another major player in the insulation products industry.
Govett explained that the patent in question derived from an industry-wide phenomenon close to 10 years ago that forced Reflectix and other reflective insulation companies to develop new technology in order for their products to pass tests for fire resistance. Because of this, he argued simultaneous invention had occurred among all the reflective insulation companies, including Oroglogio’s.
“There were a number of industry participants in our group [working on this technology],” Govett said. “We felt [Oroglogio] took our stuff and ran to the patent office to get a patent on it.”
After Oroglogio obtained the patent, he sold it to the giant patent enforcing giant, Acacia Research Corporation. Acacia then formed a subsidiary, Promethean, in order to pursue this case and others, Govett said.
“We didn’t think it was right what he had done, so we fought it,” he said. “Fortunately the jury agreed with our side of the story.”
In addition to Govett, the Norton Rose Fulbright trial team included Dallas partner Jon Skidmore and associates James Leito, Nick Hendrix and Nathan Rees; Houston partner Warren Huang; and Austin counsel Marwan Elrakabawy.
Marshall attorney Jennifer Truelove of McKool Smith served as Reflectix’s local counsel.
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