Unrivaled 2025: Tom Melsheimer of Winston & Strawn

You successfully led the trial in February 2024 for Dallas-based Flyp in which a federal jury found Google infringed five US patents Flyp owned. Flyp asserted it invented a call connection solution using multiple phone numbers on a single mobile device. Google argued that it had launched a competing product prior to Flyp’s. The jury issued a $12 million royalty verdict for Flyp, finding infringement. Can you tell us about your trial strategy?

A winning patent case needs a winning invention story. We had one involving a small startup company that saw a need to utilize multiple phone numbers for a single mobile phone. From someone running a side business to someone seeking security in their social life, the idea of having multiple phone numbers on a single phone was something most people could relate to.

How it worked in the software code was complex and the infringement analysis was challenging to explain. We were up against one of the largest and most well-known technology companies in the world. Also, Google, in effect, claimed to have invented the multiple phone number concept first, so we had to combat the idea that three individual inventors from a small company no one had ever heard of could have beaten Google to the punch. So, it wasn’t just David v. Goliath. It was David versus the Goliath that claimed to have invented the sling shot. We told the simplest story we could, in the shortest amount of time. That approach held the jury’s interest and led to a successful verdict.

Can you describe a major hurdle that happened during the course of the trial, and how did you overcome it?

Google’s primary defense witness, who was blind, was tasked with explaining Google’s invention story. We provided him with the documents for cross-examination well in advance of the trial. During the trial, I had to show these documents to the jury and navigate his disability to draw out meaningful testimony without seeming unsympathetic. He had a “visual assistant” in court to read portions of documents to him. The examination could have been clumsy and awkward, as trial lawyers often rely on questions like “Do you see that?” or “Did I read that correctly?” However, by being patient and modest in our goals, we pointed out subtle but important distinctions between what Google claimed its invention to be and what we had patented. As a result, the jury rejected Google’s defense.

When did you first know you wanted to be a trial lawyer? What clicked for you?

I was a high school debater, and like many, I aspired to be a trial lawyer. However, by college, I wanted to teach Victorian novels and majored in English. The job market for English professors was tough, so I applied to law school. In my first year, I made the finals of an advocacy competition, and my path shifted. Dickens and Thackeray would have to wait. I started as an antitrust lawyer at a large firm but left after less than three years due to the lack of trials. I then became a federal prosecutor in Dallas, where I was assigned to the largest bank fraud trial in Texas history. I never looked back.

What are the major keys to winning over a jury or a judge?
Every trial is a race where the finish line is credibility. You have to put on a case that the jury believes in, and they have to believe you above all. Lose credibility and you’ve lost the jury and the case. Being credible doesn’t guarantee victory, of course, but you can’t win unless you are also believed.

What is the best advice you give young trial lawyers?
“Arrogance is a burden. Anxiety with humility is a gift. Use it to work harder and longer than the opposition. This effort will make you a better lawyer, win or lose.”