Posts Tagged: "ip litigation"

Although these charts do not represent a rigorous analysis, they do show two things. First, patent activity appears to have a relatively consistent correlation to economic activity. Whether Lincoln was correct that there is a cause relationship or whether this is simply an effect relationship can be debated, but the existence of a relationship seems to be well-established. Second, patent litigation also appears to be following the longer-term trend of the relationship between patent activity and economic activity. The recent jump in the number of patent lawsuits filed, while significant in the short term, does not appear to represent a significant deviation from what would be expected based on longer-term historical trends.

Anybody who has any involvement with Intellectual Property (“IP”) knows full well that protecting IP means a multi-step process. Obviously, step one is the conception of the invention, idea, trademark, trade name, or other innovation where protection might be necessary. Step two is the decision about what to do with the “new” idea, etc. in terms of the need to try for exclusivity on it –or not. Many “new” things do not need IP protection – and other “new” things may not qualify for it. If the “new” idea fits into the area where protection is desirable and it qualifies, then the next step is to seek legal protection. Of course, such protection will have a cost – whether or not the protection is sought by the inventor/conceptualizer himself/herself or itself (in the case of an organization) or assistance of counsel is required.

Wilson Sonsini Goodrich & Rosati announced last week that it was significantly expanding its patent litigation practice by hiring a team of IP litigators away from Sidley Austin. Poplawski is not just any lateral hire, which requires one to take a moment to ponder what might be going on here and what prompted the move. You see, Poplawski was the head of the Sidley Austin’s West Coast Intellectual Property and Technology Practice and Global Co-Chair of the Firm’s Intellectual Property Litigation Practice. Poplawski was also a member of Sidley Austin’s Executive Committee.

I don’t know what is going on at Chadbourne & Parke, but I do know I know that Walt and John were both at Morgan & Finnegan and left for Chadbourne over 7 years ago. Morgan & Finnegan subsequently filed for bankruptcy ?several years later. Over time the best attorneys were slowly bled from Morgan & Finnegan, and virtually all of the rainmakers left. There were obviously internal problems of one kind or another, likely of a structural nature compounded by top earners and rainmakers leaving. Now I see top level attorneys leaving Chadbourne & Parke, one of them my friend who had enough sense to get out of Morgan & Finnegan years before they went bankrupt. Could this be a sign of what may become over the next several years for Chadbourne & Parke?

In the last decade, a substantial market has begun to develop for contingent fee representation in patent litigation. Wiley Rein — a traditional general practice law firm with hundreds of attorneys practicing all areas of law — represented a small company, NTP, Inc., in its patent infringement lawsuit against Research in Motion, the manufacturer of the Blackberry line of devices. The lawsuit famously settled in 2006 for $612.5 million, and the press reported Wiley Rein received over $200 million because it handled the lawsuit on a contingent fee basis. And Wiley Rein is not alone in doing so. Many patent litigators around the country have migrated toward handling patent cases on a contingent fee basis.

When copying has occurred, much of the code may have changed by the time it’s examined due to the normal development process or to disguise the copying. For example identifiers may have been renamed, code reordered, instructions replaced with similar instructions, and so forth. However, perhaps one comment remains the same and it’s an unusual comment. Or a small sequence of critical instructions is identical. Correlation is designed to produce a relatively high value based on that comment or that sequence, to direct the detective toward that similarity. If correlation were simply a percentage of copied lines, the number could be small and thus missed entirely among the noise of normal similarities that occur in all programs.

Of course, these lists never give any love to the small or mid-size firms that provide high quality legal work at a reasonable cost to clients. But that is only one of the things that will raise some eyebrows. U.S. News included Howrey LLP in the top tier for intellectual property litigation and the firm dissolved on March 15, 2011, hardly 10 weeks into 2011. So how exactly does that qualify Howrey, a firm that no longer exists, for top tier ranking? That alone will cause some to scratch their heads and wonder exactly what U.S. New was thinking.

As a general rule, a copyright lasts for the life of the creator PLUS another 70 years. So your grandchildren and great-grandchildren can benefit from your creation well after you have left this earth. For the price the rights you obtain with a federal registration are a true bargain! File early and often my friends! You can never have too many copyrights, and invariably if you pick and choose when to file you will wish you had applied for a copyright sooner once someone is infringing. By then it will be too late for statutory damages and attorneys fees, which is unfortunate. The early bird gets the worm, and those quick to file a copyright application reap the most rewards.

Many clients are unaware that the commercial general liability insurance (CGL) policy they hold is not fully protecting their most valuable assets, the ability to sell their products. And, most IP attorneys do not know that IP insurance is available to help fund their client’s IP litigation risks. If a client’s IP becomes involved in litigation, specialized IP Insurance products will help ensure that there are funds available to pay the associated legal expenses. Without specific IP Insurance in place, the client may be left with a less desirable way of protecting their IP assets.