Influential Appellate: Rudy Telscher | Harness Dickey

Rudolph A. Telscher never planned to be an attorney. Nor a patent attorney. And certainly not one of the best patent attorneys in the country.

The University of Missouri electrical engineering student was working one summer at the McDonnell Douglas plant, now Boeing Co., when a man he didn’t know wearing a black suit “who was looking cool” asked him about his plans after he completed his degree. Telscher said his plans were to get a master’s degree in electrical engineering or an MBA. The black suit said, “you ought to get a law degree, and if you get a law degree you should be a patent attorney.”

And so goes the story of what led Telscher to where he sits today, the winner of a 9-0 decision by the U.S. Supreme Court last April. The ruling in Octane Fitness LLC v. Icon Health & Fitness Inc., lowered the threshold for awarding attorneys’ fees to the winner of what is considered a “patent trolling” lawsuit.

“I hadn’t had that conversation, I wouldn’t have ended up in patent law,” Telscher, 50, said. He completed his engineering degree at University of Missouri and graduated with distinction from the University of Iowa law school.

The case began as a result of “patent trolling,” often considered frivolous litigation by the plaintiff against a deep-pocketed defendant.

Prior to the ruling, from 2005 to 2011, there were no attorneys’ fees awarded in such cases, Telscher said, but since the ruling nearly 10 months ago, 20 attorneys’ fees have been awarded.

“The Octane decision has already had a considerable impact on patent litigation,” Telscher said. “District court judges have much more discretion to award attorneys’ fees if a plaintiff brings a weak patent case or the defendant advances unreasonable defenses. The decision also allows district court judges to factor in unreasonable litigation misconduct when it is present.”

The Supreme Court win is big, but Telscher might have had a bigger win in the popular mind.

Many a player in fantasy league baseball and football can thank Telscher for making their statistics easier to calculate individually and for each team’s commissioner. C.B.C. Distribution & Marketing v. Major League Baseball Advanced Media, an 8th Circuit ruling from 2007, protects the use of online fantasy baseball products after the MLB objected to the use of the players’ names and statistics. The Supreme Court denied certiorari, giving Telscher’s client the victory.

The case, which turned into a landmark First Amendment argument, “is in the textbooks now,” he said.

A principal in Harness Dickey, he and his litigation team have not lost a summary judgment or other dispositive motion, arbitration or trial in more than 10 years. He doesn’t claim all the glory.

“You are so privileged to have these people around you.” These legal victories “do not happen without them.”

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