Beyond Biglaw: Software Patent Wars
What are the implications of a major patent law case, soon to be argued before the U.S. Supreme Court, for law firms and lawyers that practice patent litigation?
The patent world can at times seem very small. The same firms, representing the same group of technology companies, pursuing the same strategies, both to maximize profits for their firms and to deliver results for their clients. Sure people move around, but the players in the larger sense are pretty static. Most patent cases are of limited importance to everyone but the parties involved as well. Sometimes a case has a broader scope, and becomes of interest to industry competitors or even investors. Every once in a while a patent case captures the public fancy, as Apple v. Samsung undoubtedly has, usually because of the nature of the parties involved or the ubiquity of the technology at issue. When that happens, the patent world can seem very big — global in scope, even.
Sometimes a little case can actually turn into a huge deal. When the Supreme Court gets involved, for example. Especially when the issue in the case has far-reaching economic implications for society at large, and not just for the litigants involved. I have seen a number of “big” patent cases during my career, but none has the disruptive potential of a case that is set for oral argument next week in the Supreme Court. From humble beginnings as a declaratory judgment action filed in an unusual forum for patent cases (District of D.C.,) the dispute between Alice Corp. and CLS Bank has grown into one of the most closely-watched and debated patent cases — ever. And deservedly so, because the viability of software patents is on the line. With major ramifications possible: for technology companies of all sizes, IP firms and lawyers, the courts, and the good old global economy as well….
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Everyone will relate to this case differently, of course. Amicus briefs have poured into the Supreme Court from all kinds of companies and organizations. Everyone has their angle and desired result. While the issues in the case are interesting, I have no desire to rehash them here. Or even provide my own opinion, other than to hope that all the hoopla leads to some clarity. There is plenty of worthy coverage of the case available, from SCOTUSblog to Patently-O. What is interesting to me, at least in the context of this column, is the potential disruptive effect this case can have on firms that practice patent litigation, whether they be Biglaw firms, large IP boutiques, or smaller boutiques like mine.
Like many patent litigators whose careers started in Biglaw in the 2000’s, I spent a large chunk of my time on software patent cases. My first software case was quite a large one, involving anti-virus software. As the years went by, I have litigated everything from data mining software to various e-commerce features to data encryption and more. Even now, our firm is constantly pitching for defense work related to software matters, evaluating software patents brought to us by inventors, or monitoring cases with a software component for investors. All these matters have been predicated on the idea that software was patentable. Litigating these kinds of cases is second nature to my partners and me, and software-related patent work is undoubtedly a significant revenue generator for a whole host of firms.
Since our firm has started from scratch just under four months ago, it is easy for us to consider the impact on our business if the Supreme Court takes the (unexpected but possible) step of declaring software patents as a class unpatentable. The hit would be significant, since a number of existing and potential matters we are working on involve software patents. But many other firms would be hit even harder, and considering my Biglaw experience, I doubt that many firms have even tried to analyze the potential impact of such a decision on their patent practices. Biglaw practice groups tend to be ponderous and reactive things, both by design and nature.
As stated above, I am not rooting for anything other than clarity in the upcoming Supreme Court decision. I am a service provider, and if my clients no longer have the need for my software-patent litigation skills, I will need to adapt. Perhaps there would be an opportunity in “clean-up” work on a lot of already-filed cases to go after, in the form of crafting summary judgment motions and pursuing dismissals for those cases involving software patents. Maybe clients will realize that paying top rates to a Biglaw general-practice firm or a large IP firm for that kind of work is not necessary. Or maybe the Supreme Court’s decision strengthens software patents, and we get contacted by more inventors hoping to license their patents to larger technology companies. Either way, I am glad that I am in a position to be flexible, and not partner no. 17 in some faceless Biglaw IP group.
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Of course, I am also glad that my partners and I have varied technical backgrounds, and more importantly, significant litigation and counseling experience across a wide range of technologies. When I started practicing, there was a tendency for Biglaw and IP firms to group their patent lawyers by technical background. As a result, many people got pigeonholed into handling only pharma cases, for example, or working only on software matters. While I am sure that even the latter will find a way to adapt to any decision reached by the Supreme Court, I am personally glad that I resisted such pigeonholing. How I did that is probably the subject for a future column. In the meantime, I know that I, and many others, will be watching the Supreme Court’s treatment of Alice Corp. v. CLS Bank closely. The ever-changing nature of the law is one of our profession’s greatest attributes. When a decision with such potential impact looms, we need to take interest and think critically about the ramifications for our professional lives.
Please feel free to send comments or questions to me at [email protected]. Any topic suggestions or thoughts are most welcome.
P.S. Together with Professor Dan Ravicher of PubPat.org fame, my partners and I will be presenting a “Symposium on Trading Patent Litigation Events” at the Benjamin A. Cardozo School of Law on April 1st at 6 p.m. The event is free, and registration is available at http://www.markmanadvisors.com/symposium.html.
Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. He can be reached at [email protected].
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