Intellectual Property

Popping Bubbles...

Litigation activity is going to take a while to get back to normal, including for IP disputes.

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(Image via Getty)

Much of what follows was drafted before I heard the soul-wrenching news of David Lat’s medical condition. David gave me this gig, was my first editor, and has long been a shining example of how entrepreneurial lawyers can contribute to society and our profession in manifold ways. My sincere hope is that he and all other victims of this virus be blessed with immediate and full recoveries.

To say these are strange times would be an understatement. My four children have been home for school for over a week, attending classes over Zoom. (My oldest son had his SAT canceled, and every indication is that his AP exams may also be canceled or delayed as well.) Their social interactions have been limited to talking to friends over FaceTime or while playing squads in FortNite. We have to remind everyone in the house to get outside for some fresh air. Life has shrunk to a radius of a few blocks, as I am sure it has for many of my fellow New Yorkers. Stores are rationing everything from toilet paper to chicken. The busy streets of Brooklyn look like they do when a blizzard is raging. Except there is no snow. Or wind. And the air was just starting to smell like spring.

We are lucky. We have a house, access to both private and public transportation if needed, and somewhere more spread out to run to if things get worse in the city. This is normally a slow time for my wife’s home-based business, selling educational toys, but she has seen increased demand from parents coping with schools closed and kids home all day. For now, she has the inventory to meet that demand. But with the tightening of the movement restrictions, there is no way for her to deliver her goods. So she arranges porch-pickups, like a reverse milkman. As for my law practice, I have long been comfortable getting work done from home, dating back to my days as a Biglaw associate when I would work on briefs at midnight or later, so that my time in the office would be less constrained. Our professional lives continue, even as things become more surreal with each passing day.

Since starting our firm in 2013, leading to even more control over my personal schedule, I have become even more practiced staying productive at home. Whether that means late-night phone calls with clients in Asia, or early morning consultations with investors looking for guidance on patent litigation situations, work gets done no matter where I am. But the amount and timing of when that work needs to get done remains somewhat outside my control, as I am sure it is for nearly all readers of this column.

In fact, because of the number of matters I have been handling involving Asian parties lately, the issues caused by the virus have been on my mind for months. In those cases where I am working with patent owners pursuing licensing discussions with Chinese companies, or even where US-based licensing targets are seeking indemnification from Chinese suppliers, communication and progress has been more difficult for a while. Likewise, litigating against Chinese-based companies has led to delays in active cases, including some that have required court intervention to address in terms of adjusting previously agreed to schedules. Now, of course, anything litigation-related seems to have been suspended in time, as court access becomes restricted nationwide and discovery becomes impossible to conduct.

Despite the court closures — and in the early days of this unprecedented societal disruption — some of the biggest news last week in the IP world centered on a new case filing, where an investor-backed litigation vehicle wielding former Theranos (of all things) patents had the misfortune of filing a new case against a company that had just announced that it was knee-deep in the critical work of deploying coronavirus tests. Condemnation was swift, including statements calling the filing “tone-deaf” and a prime example of why patent assertion should essentially be criminalized. Reports that the lawyers involved in filing the case had received death threats soon followed, along with a commitment from the plaintiff that it would grant a royalty-free license for anything related to coronavirus testing.

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Originally, my thought was that this filing was a prime example of prestigious IP lawyers living in the Biglaw bubble failing to anticipate the public outcry that would ensue from such an ill-timed filing. But even though I can understand why something like that could happen — and think that someone on either the client or lawyer side should always be tasked with raising the question of whether a particular filing is advisable (e.g. the US Soccer debacle recently that led to female players covering their crest as they took the field for their country) from a PR perspective — it actually turns out that the plaintiff had no idea of the coronavirus tests when it filed its suit. Whether the truth will ultimately matter in the public narrative of this case is unclear. Even after that information came out, there were still calls for the plaintiff to drop the case, for one. While antipatent animus may inform the public outcry to a certain extent, it is also true that everyone has been very quick to take sides on this issue.

Ultimately, this situation confirms that tensions still run high in the patent debate — and that the current crisis could serve to inflame those tensions. There are those who think all patent assertions are trollish, just as there are defenders of what most of us would consider overly aggressive or even tone-deaf behavior by patent plaintiffs. Of course, these are minor concerns considering the public health crisis that has overwhelmed life around the world. There is much we don’t know — and the uncertainties pile up with each passing day. One thing that is for sure is that litigation activity is going to take a while to get back to normal, including for IP disputes. And who knows when normal life will return nationwide. For now we are all in bubbles. Yet we are also more dependent on each other than ever. Maybe the experience will make us a little more measured and less quick to pop someone else’s bubble.

Please feel free to send comments or questions to me at [email protected] or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’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.

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