How to Get More Business When Patent Litigation Filings are Down

By Bernard Knight
July 19, 2017

Lawyers often wonder how to enhance their marketability and in the process, generate more revenue or improve their image.   After all, success at a firm is about “revenue generation.”  Success in a corporation or in the government also depends on your credibility and your ability to be a “go-to” person within the company or government agency.   To be a successful lawyer, you need to have a brand.  I explain below 6 easy ways to make your mark.

IP is More Competitive

When I was the AIPLA general counsel, I would have many opportunities to talk to senior patent attorneys from many firms.   What they each consistently told me was that “in the old days” clients could not find patent attorneys who were not conflicted.   As a result, there was plenty of work and at full billable rates.

That has changed.   In 2016, there was a reduction of about 20% in filed patent district court cases.  On top of that, prosecution work is becoming commoditized and must be done in high volume and at lower rates.   As an example, Ropes and Gray spun off its patent prosecution business to a new firm that can charge lower rates and presumably pay lower compensation.

Law firms are fighting for a smaller pool of work and as a result, are required to compete for that work at more competitive rates.  If you want to get the work and charge higher rates, there must be a reason for the client to hire you.  In other words, it’s your brand that counts.

I Learned First-Hand How to Develop a Brand

In 2010, when Dave Kappos called upon me to return to the USPTO as general counsel, I was a bit concerned because I had not established a reputation in patent and trademark law.   I had worked at the USPTO, but mostly on administrative legal matters.   I told Dave that I would be delighted to take the position, but that I was not an expert in patent or trademark law.   Dave said, “Don’t worry about it, I’ll give you a lesson a week.”

I never got the lesson a week.   Instead, I got continual lessons working on the America Invents Act (AIA).   I had to learn the old law and then also appreciate the effect of the changes that the AIA would make on the patent system.   I love challenges, so this was fun.

However, I knew that I needed to somehow develop a brand if I was to be successful as the USPTO general counsel.   My challenge was to develop a new career and to be respected by the patent and trademark bars.  I share with you below how I developed my IP reputation and created a new career.

I am confident that each of you can do the same and likely more to strengthen your careers.   It requires you to put yourself out there, but the old saying “nothing ventured, nothing gained” has never been more applicable.

We All Need a Brand

It is not fun being at a firm as a partner who must work for other partners for most of your billable time.   That type of scenario causes the partner to work like a senior associate having little control over their time or career.

You are also at the mercy of the senior partner and his or her continued ability to obtain more work and have some sort of connection to you.   This may be a good place for an associate or a very junior partner, but it is not a way to develop independence and control over your work life and career.

We all want to be marketable and be able to find new jobs.   Creating a strong reputation or brand also will help you to attract a new job or promotion.

If you are like me and not married to a wealthy spouse or palling around with wealthy friends who run Fortune 500 companies, you should be thinking about other ways to develop your own client base.   One way is to work on developing a “brand” or reputation as an expert in your field.

Six Easy Ways to Develop Your Brand

Here are some easy methods to help you develop your brand:

Get Published

The quickest way to enhance your brand is to get published on a topic that is impactful.   What I mean by “impactful” is don’t just write about a recent Supreme Court case and synopsize the opinion.   A first-year law student can do that and probably will.

You might think about the industry or technology that you are interested in developing a larger portfolio and write about how some change in the law, whether a court case, regulation or Congressional action will affect that industry.   Show how your insights can improve the quality of legal advice currently being provided by others.

Add something new to the discussion and put something in the article worth reading and remembering.   Practice tips or predictions about areas of unsettled law with reasoned analysis is helpful.

You don’t have to write a law review article; about 1500 to 2000 words is perfect.   If you cite a company by name, make certain that you have cleared any conflicts.   It’s best to stay away from criticizing a company or its strategy.

There are many publications that would love to publish your article.   Most publications are looking for content.   You might submit an article to IPWatchdog.

Get to Know the Press

It is important that the press think of you when they need a quote about a new development.  Most firms have press offices that coordinate with news organizations.  Get to know the people in your press office and let them know that you are interested in helping.

Remember, the press deals with tight deadlines and they want to be the first to comment on a new development.   Many times, busy lawyers don’t call the press back right away.   That is a mistake.

If your firm doesn’t have a media/press office, get your firm to invest in press coverage.  There are many independent press firms or consultants that can assist.  For example, my firm hired Elizabeth Lamphert and she did a great job getting us mentioned with solid quotes in several publications.

Teach a Class

There is no better way to learn an area of the law than teaching it.   Teaching requires you to gain a good understanding of the area and answer student questions on your feet.  This requires a thorough understanding of the subject.   It also will give you added credibility with clients.   Again, teaching allows you to be an expert.

If you are interested, I would write a syllabus for the course that you would like to teach.   The syllabus serves as your proposal.   Next, you can shop it to the various law schools.

Join a Bar Association and Network, Network, Network

Get known among your colleagues and industry.  Figure out the best bar associations to join.   For intellectual property law, it’s the American Intellectual Property Law Association, the Federal Circuit Bar Association, International Trademark Association, the American Bar Association and the PTAB Bar Association.

I was the General Counsel of the American Intellectual Property Law Association.   My photo was posted on the Association’s website, which gave me and my firm greater name recognition in IP circles.   My firm donated my time.

Don’t worry about attending the dinners, but don’t miss a reception.   That is your opportunity to meet people and a lot of them in a short period of time.   It’s like professional “speed dating.”

Make sure that you figure out who the luminaries are in your field and make sure that you meet them.   Spend your own money to attend these events, if your firm or company will not pay.   It’s a business deduction on your taxes and the conferences are usually in great locations.

Speak at Conferences

If potential clients see you on a panel at a conference, they will assume that you are an expert on the topic.   Joining and being active in an association is the best way to obtain a speaking engagement.

Associations are always looking for content on timely issues.   Submit a proposal for a panel discussion staring “YOU.”

Publishing on a topic also sets you up nicely to be asked to speak.   Don’t be bashful, find out the identities of the conference organizers and reach out to them about your interest in speaking.   The worst that happens is nothing and you are in no worse place.   The best that happens is that you are on a panel and attracting new business.

Develop a proposal on a timely topic and get other people to participate on your panel.   Put together a well thought out package for a panel and then shop it to the various organizations.

Be Nice to People

Being nice and helpful to people will get you far.  Return calls from reporters.   If you cannot help them with a quote because of a conflict or other reason, tell them why.   Be considerate, it pays off.

When you attend a conference, tell the speakers that they did a good job and that you appreciated the talk.  Be positive and show your interest.   Also, don’t talk to someone at a conference and then ditch them when someone more important walks by.

Have a few interactions with people who work for potential clients before you start with the hard sell.   Show an interest in a potential client and their work first.   Take some time to develop a relationship.

People want to help people who are nice to them.  However, they never forget someone who is rude.

Think About How You Want to Position Yourself

Think about your future and what you want it to look like.  Once you have your goal in mind, you can target your brand development toward those topics.  For example, if you want to be known as an outstanding trademark lawyer, you would want to get involved in the International Trademark Association and seek speaking engagements at their conferences.   You also will want to write about trademark law developments.   If you would like more information on how to establish your brand, check out my website on Attorney Executive Coaching.

The Author

Bernard Knight

Bernard Knight is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C., office. He focuses his practice on complex patent litigation. Prior to joining McDermott, Bernie served as General Counsel for the U.S. Patent and Trademark Office (USPTO) from 2010 to 2013. As General Counsel of the USPTO, he led the development and legal review of the regulations implementing the new Inter Partes review, post grant review, business method review and derivation proceedings, as well as the regulations changing the United States to a first-inventor-to-file system. Bernie previously served as Acting General Counsel of the U.S. Treasury at the height of the financial crisis. From 2001 to 2006, he was Deputy General Counsel for the USPTO. Bernie began his government career in 1991 at the Department of Justice, Tax Division, where he served for 10 years. CLICK HERE for Bernie's firm profile page.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 23 Comments comments.

  1. Benny July 20, 2017 7:37 am

    “…generate more revenue or improve their image.”
    I love the honest implication that you can do one OR the other. Choose.

  2. Anon July 20, 2017 8:29 am

    Benny,

    Your comment says more about you than you may realize.

    And that’s not a good thing.

  3. Benny July 20, 2017 8:36 am

    Anon,
    As usual, you have trouble converting your ideas into coherent sentences (which is probably why you make a good attorney). I have no idea what you are on about.

  4. Night Writer July 20, 2017 9:13 am

    Great article. A bit simplistic I think, but a good article.

  5. Night Writer July 20, 2017 9:15 am

    Benny Anon is right. And, you try to make more of a contribution than ridiculous snide comments.

  6. Jon Schlaifer July 20, 2017 9:18 am

    I think these are excellent suggestions. There are a huge number of patent practitioners, and differentiating yourself is quite important. The article is helpful because it summarizes some effective ideas in a clear manner and specifies practical suggestions.

  7. Benny July 20, 2017 9:27 am

    Night,
    I’ll spell it out for you. Any attorneys who prioritize their revenue stream over their client’s corporate efficiency are not doing their reputation any good.

  8. Night Writer July 20, 2017 10:36 am

    >>Lawyers often wonder how to enhance their marketability and in the process, generate more revenue or improve their image.

    Benny I will spell it out for you. You intentionally misrepresented the meaning of the sentence.

  9. Benny July 20, 2017 10:55 am

    Night,
    You want street cred, you want to be a partner to your client’s success, not just milk your client’s IP budget. What that means in terms of the article, is that you need to network with potential clients, not your peers, and publish articles on sites your clients read, and speak at your client’s professional seminars, and not be afraid to actually talk to your client’s CEO on unbilled time.

  10. Anon July 20, 2017 10:55 am

    And it was the intentional misrepresentation (in order for Benny to try to “make his point”) that was telling.

    As for you not understanding my comment Benny, such simply does not mean that “I” am the one having trouble “converting your ideas into coherent sentences.”

    You don’t understand and turn around and blame the other person….

    A habit of yours.

  11. Anon July 20, 2017 10:57 am

    I will add this, you make solid and helpful comments with your suggestions at 8.

    If you were only not mired in your anti-attorney rhetoric….

  12. angry dude July 20, 2017 3:40 pm

    Benny is a known efficient infringer and polluter of US patent system so what do you want from him ?

  13. Benny July 20, 2017 4:04 pm

    Angry,
    Please specify the patents I am infringing.
    No evidence ? Who needs evidence to backup accusations?

  14. angry dude July 20, 2017 9:42 pm

    Benny,

    I don’t even know your real name and the name of your company supposedly in Israel doing robotics or whatever and supposedly holding some US patents..

    BUT, your attitude is all too familiar to me… very well familiar

    It’s an attitude of a wealthy industrialist aka efficient infringer and patent system polluter…

    Nothing personal

  15. Benny July 21, 2017 1:01 am

    Angry,
    you got some of the facts wrong but I’ll let it pass.
    Good luck bringing a lawsuit based on nothing more than attitude.

  16. Anon July 21, 2017 8:15 am

    angry dude,

    I would have phrased your comment as:

    Benny’s position’s on a wide variety of patent topics falls directly in line with those positions pushed by known efficient infringers and those who would pollute (eviscerate/denigrate/weaken) a strong US patent system.”

    This is an objective and factual observation, and one that does not need any more “evidence” than what Benny himself has provided.

    Benny,

    as to your last reply, who said anything about “bringing a lawsuit,” much less doing so with “nothing more than attitude?”

  17. Benny July 21, 2017 8:47 am

    Anon,
    nailed it.

  18. Eric Berend July 21, 2017 8:57 am

    No comments for the 2000 pound gorilla in the room: inventors are fleeing the U.S. patent domain in droves; and increasingly, corporate “behemoth” work, is the only patent practice work left.

    Your can hard work and redouble efforts on existing wells on a ranch, but if someone drained the aquifer, there’s really not much that can do, in the end.

    The IP pirates – ermm – ‘efficient infringers’, have won – for now. Denial and escapism as to this reality, does little but delay the inevitable capitulation.

    Better to acknowledge the truth of the matter; than to sell oneself on fumes and false hopes. Last one to leave, turn out the lights.

  19. Anon July 21, 2017 11:03 am

    Eric,

    https://www.youtube.com/watch?v=9K30e9O3Nng

    ’nuff said.

  20. Night Writer July 21, 2017 11:27 am

    >>The IP pirates – ermm – ‘efficient infringers’, have won – for now. Denial and escapism as to this reality, does little but delay the inevitable capitulation.

    I get the feeling we are near a tipping point where patent applications from the US are going to drop by 25%. Just a feeling from all the people I talk to about budget cuts and inventors saying they don’t really won’t to disclose how their invention works.

    Thanks Obama.

  21. angry dude July 21, 2017 2:18 pm

    Night Writer @20

    There is a long long list of folks to thank for that .. such a long list that if you try to thank them all in person by shaking their hands (or punching their heads) you will be physically ruined

  22. start-up July 25, 2017 11:02 am

    Very good article. Question: Aside from IPWatchdog, can you suggest a few other places to publish articles related to IP issues as you recommended? Something more meaningful and authoritative than blog posts but also not law review either. Something in between. Thanks!

  23. Bernie Knight July 31, 2017 2:03 pm

    Hello Start-Up. Blog posts are great. I wouldn’t discredit them. They are widely read by corporate counsel and provide a great way to obtain information quickly. I agree that law review articles take too much time to write and clients don’t have the time to read many of them. Not much bang for the buck there. I have found industry publications a good way to focus on your industry niche. For example, the BNA Pharmaceutical Law & Industry Report is great if you want to target pharmaceutical clients. There are many others as well. Good luck!