Craig Scott is an attorney with the firm Duffy Sweeney & Scott, which has offices in Providence and Boston. He concentrates his practice in complex business litigation with a focus on intellectual property law.
Scott recently made headlines as one of the lawyers in a patent case against the Rhode Island toy company Hasbro Inc. After a week-long trial, a jury found Hasbro’s use of crystal-shaped dice in a premium edition of the board game Monopoly infringed on a patent held by Arizona inventor Michael Bowling, and returned a verdict of $446,182.
Last March, Scott and attorney Christine Bush, also of Duffy Sweeney & Scott, scored another courtroom victory defending Emissive Energy Corporation of North Kingstown. They called forensic experts to the stand to testify that the plaintiff had submitted fraudulent documents as evidence. As a result, the plaintiff was ordered to pay more than $4 million to Emissive and other defendants to cover litigation costs.
PBN: Can you tell us anything about the Hasbro case?
SCOTT: Not really. Our client, the plaintiff, does not want us talking about the case to the press until we know for certain there will be no appeal.
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PBN: Tell us what happened with your case involving Emissive Energy Corporation.
SCOTT: Emissive Energy Corporation, a Rhode Island company, along with a number of other companies, including Radio Shack and Target department stores, were sued by a Wisconsin company, Armament Systems and Procedures, alleging patent infringement.
We argued the plaintiff – the patent holder – committed ‘inequitable conduct.’ We established the patent holder had committed fraud by submitting a fraudulent document – a conception sketch – to the patent office. Compounding that, they produced at trial another document, this time computer generated, that was found to be fraudulent. The court declared the patent was unenforceable, and Emissive was awarded $1.4 million to cover the company’s cost of defending against the case. Altogether, the patent holder was ordered to pay in excess of $4 million in judgments to the various defendants. Each of the companies accused of patent infringement was awarded 100 percent of their litigation costs.
Emissive Energy is a local company, located at Quonset Point, that designs and manufactures premium LED lighting products. … They had to redirect resources from other areas – perhaps research, or marketing – to defend against this claim. They had to litigate for seven years, including a trial. Many companies don’t have the wherewithal to uncover fraudulent documents. Emissive Energy stood their ground, whereas many companies would have paid a king’s ransom to get out of the case.
PBN: Some of the issues in this case almost sound like something from CSI or one of the other current TV cop shows that focus on forensic evidence. Tell us something about that.
SCOTT: One of the documents the patent holder submitted was a conception sketch, and our forensic expert was able to show that it was not created on the date claimed. The conception sketch was done on graph paper with a pencil, and pencil marks can be very hard to date. But our examiner was able to find impressions on the paper, and those became very important in the case.
This is a simplification, but it was something like what you’d see on a detective show like Colombo, where he rubs a paper with a pencil and it reveals an impression left when someone wrote on another paper in the same pad. Our expert – who was formerly with the FBI’s document lab – was able to determine that the impressions were made at more recent dates.
PBN: Were there other documents discussed in the trial, beyond the hand drawings?
SCOTT: During the trial Armament Systems also submitted a … document to back up their claim [that] was generated by computer and had a 1999 date. But our forensic expert found some things that were anachronistic, and by examining the computer equipment, he was able to prove it was actually created years later.
PBN: What should a company due to avoid infringing on someone’s patent when they are preparing to introduce a new product?
SCOTT: Companies often do a patent search when they are preparing to put a product on the market, and there are different types of searches they can do. They’ll hire a law firm that specializes in that area.
PBN: And that also applies to trademarks and copyrights?
SCOTT: A trademark infringement – that would involve a name or a logo … is of the same magnitude, and once again, a search can be done. There are computer technologies available, and law firms that can review results. Sophisticated companies will rely on lawyers to ensure their investment and good will won’t be harmed by someone stepping forward with a claim.
Copyrights are not as easily searched, but some effort can be made.
PBN: There are critics of patent and copyright laws, such as software genius Richard Stallman, who argue that protections go too far, that they stifle creativity.
SCOTT: There is some truth to that, particularly with patents that should not have been issued. There are patents with respect to business models, for example, that are very weak and obvious. There was a recent decision by the U.S. Supreme Court that makes it much more difficult for obvious patents to find their way through to registration. •
