Jamie McDole

You have garnered praise for your ability to "develop creative strategies for success in litigation". What makes your strategies so unique?

I am a firm believer in three main concepts for successful litigation:

• A firm and early understanding of the key issues;
• Attention to detail; and 
• Always acting with the intention of trying the case. 

For example, I prepare for key depositions by drafting pseudo-summary judgment motions.

These are useful not only for the key facts and admissions I want to obtain but also for controlling the case law that will govern the issues at hand. Understanding the facts and the law early in a case allows me to tailor discovery to meet clear objectives. Litigation is a game of three-dimensional chess; if I have better initial information than the opposing party, I can strategically position our litigation theories for success. Second, the little things matter, so attention to detail is paramount. Digging into the specifics gives our litigation team an in-depth knowledge of the record, while our ability to accurately recite detailed facts gives the court and jury the confidence to trust our clients. Third, my team and I do not litigate cases to settle – we always litigate with an aim towards trial.

The expectation of settlement can lead to apathy, while the expectation of trial leads to strength and success. We are trial attorneys who like to win, so from the outset, we approach every case as if we are going to try the case before a jury. Much of my work involves translating and simplifying complicated technology into understandable concepts. By thinking through these presentation issues early, I can develop themes in discovery that the jury will comprehend.

What are the biggest challenges facing clients when it comes to patent enforcement in the United States at present, and what advice are you giving to help them overcome these?

The uncertainty in the law at the Federal Circuit level is the current biggest challenge for clients in the United States. Unfortunately, there are several issues that have become panel-dependent. For example, patent eligibility is a hot-button issue at the Federal Circuit, the outcome of which is highly dependent on the court panel receiving the case. This uncertainty is difficult to manage, making it hard to fully advise clients – they invest millions of dollars in attorneys' fees and costs during litigation, only to end up at the Federal Circuit on the patent-eligibility roulette wheel. So far, the Supreme Court and Congress have not stepped in to clarify the test or rules for patent eligibility, leaving the law adrift. To overcome these issues, we create the best record possible for appeal, especially when patent eligibility is at issue.

This type of uncertainty is also making it harder for smaller clients to obtain litigation funding for good cases. Litigation funders are sophisticated and evaluate case risk on a daily basis, and patent eligibility tends to be a threshold issue that they consider when considering such risk. Often, they will decline otherwise good cases where there is a patent-eligibility concern. Most larger companies do not require litigation funding, hence this uncertainty in the law only hurts the small innovative companies.  

Winstead is fairly new to patent litigation. What do you want people to know about the firm and your team?

Winstead is a leading Texas-based law firm with national practices serving clients across the country. While we are new to patent infringement litigation specifically, we have a solid track record in litigation and trial work. Most clients hire attorneys, not firms, and although the firm's reputation is important, our focus is on the quality and success of the attorneys.

Our patent litigators boast experience from large firms such as Kirkland & Ellis, and we have successfully gone toe-to-toe with some of the largest firms in the world. We have tried cases in virtually every district in the State of Texas, have received numerous accolades, and have built a team that rivals any litigation and trial team in the country.

Winstead’s name will continue to gain prominence in the industry, and the driving factor behind this will be our clients’ word of mouth in recognising our successes.