Litigators

Beyond Biglaw: Picking A Side In The Patent Wars

Patent litigators: no matter whom you represent or what you are doing on that client’s behalf, expect vocal criticism of your actions from some quarter.

By Gaston Kroub on June 16, 2015 10:01 am

It is hard to be a patent litigator these days. There is perhaps no area of law that has been as impacted by economic, legislative, and judicial forces over the past few years. From the passage and implementation of the America Invents Act, to a flurry of Supreme Court decisions in critical areas of patent law, to a general shift in the public reckoning of the value of patents themselves, nearly every aspect of serving as a patent litigator has undergone tremendous change. Standard practices and strategies employed in patent cases just a few years ago would, if employed today by a patent litigator, be a recipe for disaster for that lawyer’s client.

Before I continue, I want to make clear that I do not intend to complain, or somehow rage against forces outside my control. I thoroughly relish being a patent lawyer, and embrace the challenge of forging ahead in a vibrant and ever-changing area of law. I know my partners feel the same way, and we all share a deep appreciation for the opportunity to practice in an area of law that allows for interaction with brilliant inventors, innovative companies, and fellow lawyers who have mastered the difficult task of melding a “science brain” with a federal-court litigator’s skills.

At the same time, it is important to think about what it is like to practice in a changing legal environment, and how best to respond to the challenges presented. As lawyers trained in the common-law tradition, we are generally comfortable with the idea that legal canons will evolve. So while the Supreme Court has been active in the area of patent law, on top of the typical activism of the Federal Circuit (the Court of Appeals for patent cases), changes in the patent laws are less challenging to deal with than some of the other factors that have contributed to making practicing patent litigation more difficult.

In fact, one of the greatest challenges facing patent litigators is dealing with the venom thrown one’s way depending on the client being represented. This phenomenon is most pronounced whenever a patent litigator chooses to represent a patent holder seeking to enforce their patent — which, considering that a patent grants exclusionary rights, is kind of the point of patents in the first place. Represent an individual inventor whose business failed for reasons outside of their control, but who retains some patent rights that could be monetized? Or even a university with some inventions that could be licensed? Or an entity that acquires patents to enforce because the original inventors lack the time or resources to do so? Prepare to be called a “troll” lawyer by a host of people, some of whom do not even have a stake in whatever case was actually brought. It is a given that the accused infringer will label you and your client as trolls, as will their outside counsel. But even your former colleagues (particularly if you practiced at a big firm whose coffers depend on the deep-pockets of accused infringers for their gilded linings) are likely to attempt to brand you with the moniker. Even some of your clients may join the party, and question whether or not you have somehow turned to some kind of Melisandre-ish “blood magic” in the hopes of earning a hefty contingency fee.

On the other hand, the same level of vitriol is often directed at lawyers defending companies accused of infringing patents. Especially in the tech community, there is a general backlash at the increasing power of large corporations that have used their lobbying might to pass anti-patent regulations that increase the likelihood that they could appropriate technology from startups and individual inventors with impunity. And even though everyone wants to eliminate “bad patents,” there is also a growing groundswell in certain industries arguing that making it too easy to invalidate patents will have negative effects on the economy as a whole. These are complicated issues with solutions that are not readily apparent. For patent litigators, however, even on the defense side there can be criticism with regards to the clients one represents.

Indeed, for a patent litigator, there is the growing sense that no matter whom you represent or what you are doing on that client’s behalf, there will be vocal criticism of your actions from some quarter. It is not easy to have to deal with attacks of such a personal nature, even though they are often made as a result of lazy thinking and delivered dismissively in pithy fashion. Perhaps this has always been the case, even though something feels different about the current climate, at least to me.

I am approaching fifteen years as a patent litigator, and I have been fortunate to represent everyone from the largest corporations to individual inventors in my career to date. Perhaps more importantly, I have negotiated against the same spectrum of players in patent litigation situations — on both sides of a case, whether as a plaintiff or defendant. And while my partners and I started out at large firms, we continue to have a balanced practice at our own firm — by design, and because we feel strongly that every client is entitled to the best representation possible. Part of that includes a frank assessment of the strength and weaknesses of our client’s patents (if we are on the plaintiff side) or their defenses (if we are on the defense side). Thankfully we are in a position that allows us to take on only matters that we feel are meritorious, regardless of whether we are representing a patent holder or accused infringer.

What I have learned as a result is that trying to “label” an opponent or a fellow practitioner is usually a waste of time at best. Better instead to focus on the merits of the dispute at hand. For patent litigators, as for any lawyer who hopes to actually enjoy what they do, the most important thing is to focus on advancing one set of interests — the client’s. Ultimately, doing so is what makes our practice so rewarding, and it will be the reason for us continuing in our chosen field, no matter what change may come. We pick one side — our client’s.

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. You can reach him at [email protected] or follow him on Twitter: @gkroub.