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Intellectual Property Today
RFC Express - New IP Lawsuits

Trial Lawyer's Notebook:
Settlement Is Not A Four-Letter Word

By Tony Zeuli of Merchant & Gould

Tony Zeuli is a trial lawyer specializing in patent and trademark litigation with the IP firm Merchant & Gould. He also has considerable experience before the Court of Appeals for the Federal Circuit. Tony has given several presentations and published numerous articles on intellectual property litigation, especially patent claim construction. His articles have also appeared in The Federal Lawyer and Bench & Bar. Prior to joining Merchant & Gould, Tony was a physics engineer at Argonne National Laboratory, where he was involved in the study of nuclear physics. Mr. Zeuli can be reached at 612.371.5208, or by email at, or by visiting his web site at

Settlement has ten letters, not four. However, many IP lawyers and clients cringe at the mere mention of discussing settlement with the other side. Don't get me wrong, I enjoy a good knock-down, drag-out IP battle like the next brief-bag wielding trial lawyer. But lawyers too bold or too timid to call opposing counsel and ask what it will take to resolve a matter are missing out on a lot of good information and potentially a great outcome for their client. This is true of lawyers who represent plaintiffs and defendants alike.

I began my career doing plaintiff's personal injury cases. In addition to a lot of great experience early in my career, I interacted regularly with insurance adjusters and the lawyers that represented, indirectly, the insurance companies. Unlike most IP lawyers, the lawyers and adjusters involved in injury cases typically start with non-combative discussions about the value of the case. The plaintiff's lawyer considers the range of damages that might be recovered from a jury, the probability of success and the costs of getting those monies. Defense counsel considers much the same information. The lawyers then discuss the facts that are known that may push the outcome toward one side's range or the other. Many times I would put together a detailed booklet with the best evidence I had early in the case and send it to the other side. A detailed demand letter would be included. Sometimes a settlement would ...

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