Using Computer Animation in Intellectual Property Litigation
In our company's experience, computer animation is used by intellectual property litigators more so than any other type of attorney. The exact reason for this correlation is unclear. However, it is likely due to the technical background of most IP attorneys and the complex nature of their cases, especially patent litigation. Whatever the reason, if you have not used computer animation in your practice yet, you have probably considered it. This article should help you determine whether computer animation is right for you, your firm or your business. If you are already using it, the experiences of other IP litigators related herein should prove helpful when you use it again.
Gary Hoffman, of Washington, D.C.'s Dickstein, Shapiro, Morin and Oshinsky, L.L.P. recently commented on computer animation that "if a picture is worth a thousand words, a moving picture is worth ten thousand words. It can truly bring the story to life." He should know since he has made repeated use of the medium in patent litigation both as a teaching tool and for cross examination. In a recent arbitration, Mr. Hoffman integrated computer animation and video taped tests of a patented device into a single presentation. By combining the two, he achieved a more persuasive presentation and enabled the viewer to see details of the device not readily viewable by the naked eye. He credits the animation with forcing his opponent's expert, during cross examination, to back away from some of his opinions stated in direct testimony.
Patrick J. Coyne, of Washington, D.C.'s Collier, Shannon, Rill and Scott P.L.L.C. believes that he "would never try an intellectual property case without graphics. Juries are expecting them. Moreover, you need to do anything you can to simplify the case." He cautions, however, that "they should be very direct, simple, and contain only a limited amount of information. They must always be fair and accurately depict the evidence. Otherwise you damage your credibility . . . particularly, when the presentation is too slick."
Others have used computer animation to achieve similarly successful results in patent litigation. In Vornado Air Circulation Systems, Inc. v. Duracraft Corp., animation was used to show the air flow emanating from a household fan in a patent/trade dress dispute. Computer animation was used to educate the jury in a complex patent litigation matter involving a magnetic resonance imaging device (MRI) in Fonar v. General Electric Corp. In Perma Research & Development Co. v. Singer Co., it was used to show the operation of an anti-skid device. In Rockwell Graphic Systems, Inc. v. DEV Industries, the operation of machinery allegedly designed with misappropriated trade secrets was illustrated.
Although the bulk of computer animation presentations occur in patent litigation, a savvy IP attorney recognizes that opportunity abounds to use this trial technology in both trademark and copyright cases. In trademark litigation, one can easily imagine a situation where marks could be laid over one another (similar to using transparencies) to illustrate the infringing nature of a mark. Unlike transparencies, however, limitless combinations of marks could be compared in very little time. The marks could be shown on real or imagined objects and their size, color and shape infinitely varied.
In the copyright area, computer interfaces can be visualized as could any other informational content that could benefit from being conveyed in an interactive or animated format. That is, animation need not always depict an object, rather it can be effectively used to create a presentation that is only meant to convey information in a visually stimulating manner. Given the complexity of most IP cases, any device that encourages memory retention by the fact finder while making issues easier to understand is a valuable tool.
With the costs of using computer animation easily a tenth of what they were five years ago, the arguments against using it are few. Cost have fallen because the hardware and software required to create quality computer animation and interactive presentations are now priced in the tens rather than the hundreds of thousands. It is expected that these costs will continue to fall over the next several years. Given the increasingly competitive nature of the computer animation industry, the costs of computer animation should similarly fall.
Even in a low cost computer animation, massive amounts of complex information can be conveyed in an easily understood medium. The variety of cases that it can be used in is limited only by the imagination of the litigator. Whether patent litigation, trademark or copyright, most intellectual property cases lend themselves well to either computer animation or an interactive presentation. Not only can these devices keep the fact finder interested in the subject matter, but sometimes they can help you win your case.