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To read comments to this article, go here
A New Litigator on the Novell Team
Saturday, August 04 2007 @ 12:27 AM EDT

And what a litigator. Novell has added Eric M. Acker to the team. That tells me that they are seriously preparing for trial, and they are making sure their heavy guns are in place. He's a former prosecutor with, as Martindale.com puts it, extensive litigation experience. That's exactly what you want in a litigator. That and you want him to have won over and over, and this guy has, as his bio at Morrison & Foerster tells us:
Eric M. Acker is a former federal prosecutor with extensive trial experience. His practice focuses on intellectual property litigation, including patent, trade secret and related licensing disputes. In the past two years, Mr. Acker tried to verdict four patent cases. These trials led to favorable results for Morrison & Foerster clients, including a jury verdict of patent invalidity, a jury verdict of no willfulness, and a court finding of patent unenforceability based on inequitable conduct. In addition, Mr. Acker has obtained multi-million dollar jury verdicts for firm clients in trials in both state and federal court.

Prior to joining Morrison & Foerster in 1999, Mr. Acker was an Assistant United States Attorney in the United States Attorney's Offices for the District of Columbia and the Southern District of California. Mr. Acker tried over 45 jury trials as a federal prosecutor. He currently is the head of litigation for the firmís San Diego office.

He won patent litigation for defendants, in other words, before KSR made it easier, and afterward, he won a case that you may have read about, one of the rulings reflecting the new climate post KSR, McKesson v. Bridge Medical. Winning four patent infringement cases for defendants in two years. I'm impressed, I have to say. And 45 trials is a lot. It means he's used to working in front of juries. He has another area of practice, securities fraud, also one of Morrison & Foerster's specialties. Here's Boies Schiller's blurb in Martindale's. And David Boies', which doesn't mention intellectual property law.

I'd say Acker's just the guy you want defending you if you've fudged any SEC rules. The opposite is that you'd rather he not be against you if you have. That's what would keep me awake nights if I were a SCO executive or board member. I'd be asking myself, why did they add him to the team? There are no patents in this picture. You'll notice though that he does IP law, period, including trade secrets and licensing disputes. That should come in handy in this fact pattern.

This doesn't mean the other lawyers on Novell's team are now shoved aside by any means. Litigation is a team sport. And there are specialties. You might assign a guy who is an expert in appeals, for example, to sit quietly through the trial taking notes and making sure you don't miss anything. If you attended a trial every day, you might think he was doing nothing.

Or he might be coming in to do a lot. We'll find out at trial. Some litigators like to be involved from day one in building the case, so they can keep track of all the details. Others like to swoop in after discovery. This addition could mean the latter. He's the head of litigation in the San Diego office, after all. Chris Brown told me the other day, though, that he can't wait to see the trial and watch Michael Jacobs in action. He says he's like a suave Columbo. One thing is for sure, the trial will be interesting. If any of you are thinking of attending this historic event, do email me, so we can coordinate. It'd be sad to have three of you there one day and nobody the next. And the day we have no one will naturally be the day Maureen O'Gara breaks down on the stand and confesses.... nah. I'm getting carried away. But all jokes aside, I do want to cover as many days as we can.

Here's the PACER entry:

371 - Filed & Entered: 08/03/2007
Motion for Admission Pro Hac Vice
Docket Text: MOTION for Admission Pro Hac Vice of Eric M. Acker, Registration fee $ 15, receipt number 548982, filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit A # (2) Exhibit B # (3) Exhibit C - Text of Proposed Order)(Sneddon, Heather)


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