Read our latest coverage of patent law issues, from Silicon Valley to the U.S. Supreme Court.
“I don’t know what’s driving the [court's] interest in patent cases, but I’ve never been this busy,” said the 39-year-old academic and of counsel at San Francisco’s Keker & Van Nest.
Lemley’s not alone. Law firms with a significant appellate practice are also benefiting from the court’s interest in patent cases. Joshua Rosenkranz, an appellate partner at Heller Ehrman White & McAuliffe in New York, said clients and their lawyers are “specially emboldened” to appeal cases now that the Supreme Court seems more inclined to grant cert.
“Before, the chances of the court taking a patent case were close to nonexistent, and lawyers were very hesitant to tell their clients to go for it and take their shot at the Supreme Court even though they think the Federal Circuit Court got it wrong or there’s an interesting gray area,” Rosenkranz said. “Lawyers are a little more bullish today about advising their clients to go all the way to the Supreme Court.”
As a result, Rosenkranz, who has handled more than 150 appeals across the country and has had five cases before the U.S. Supreme Court, expects to write more cert petitions and oppositions in the near future.
The high court’s interest in patent cases is also encouraging companies and trade associations that have a keen interest in the development of patent law to commission lawyers to write amicus briefs. Edward Reines, a partner at Weil, Gotshal & Manges, who sits on the amicus committee of the American Intellectual Property Law Association, confirms that requests for amicus support from his group are rising.
“There’s definitely a sharp uptick in amicus activity in the patent area,” Reines said. He has written or co-written at least half a dozen of those briefs on behalf of clients and various bar associations in just the last few months.
“I think companies are anxious to educate the Supreme Court on patent issues and how they affect their businesses,” he added.
LET’S ALL BE FRIENDS
Though writing amicus briefs is not as lucrative as patent litigation � a brief may fetch around $30,000 to $40,000 in legal fees compared with $5 million in patent litigation fees � attorneys view the work as an opportunity to show off expertise in the area, which often leads to referrals.
“Any single brief takes high-quality partner time, but lawyers oftentimes do it pro bono just for the opportunity to get their names out there,” said one attorney who didn’t want to be identified.
The increase in amicus work also reflects just how important and contentious the patent issues being raised in pending cases are.
One of Lemley’s cases has attracted 22 amici from groups as varied as the American Heart Association and IBM Corp.
The case, Laboratory Corp. of America Holdings v. Metabolite Laboratories Inc., 04607, could redefine the limits of what can be patented. Lemley represents two university professors who patented the invention in dispute, and he said that a finding against his clients would overturn 25 years of case law.
“It could mean DNA may no longer be patentable, or business method software in many cases may no longer be patentable,” Lemley said.
Another case that has been a subject of numerous and competing friend-of-the-court briefs is eBay Inc. v. MercExchange, 05-130. Lemley has written two briefs on the case, one urging the court to take the case and the other supporting eBay’s position that injunctions should not be automatic in findings of patent infringement.
EYE FROM ON HIGH
Theories abound as to why the Supreme Court, which did not take any patent case last year, suddenly has a strong interest in the topic this term.
Some litigators say the justices have finally realized just how important patents are to the U.S. economy and are now playing catch-up.
Others say the real reason is the perception that the U.S. patent system is out of whack, tilted too much in favor of patent owners. Another thought is that the justices have been unhappy with the Federal Circuit U.S. Court of Appeals, which for 20 years has reigned over the development of patent case law and has been the de facto court of last resort for most patent appeals.
“There’s more kicking and screaming than usual, and the children are fighting,” said patent litigator Ian Feinberg, a partner at Mayer, Brown, Rowe & Maw in Palo Alto. “There’s a lot more businesses speaking out and calling for patent reform. But there are competing interests here, and I think the Supreme Court has realized that it ought to speak on these issues from time to time.”
YOU’RE SOAKING IN IT
Regardless of the reasons, however, patent attorneys are basking in the attention. The Supreme Court cases have generated a lot of publicity that has underscored the importance of patent matters in the corporate world. And patent litigators, most of whom have toiled in near anonymity, are finally getting some name recognition or getting a chance to appear before the high court.
Stanford’s Lemley is a good example. A prolific legal scholar, he has written six books and more than 70 law review articles on intellectual property law. He also litigated a number of patent cases as of counsel in the Austin office of Fish & Richardson in the early 1990s. Yet prior to this term, Lemley had mostly been known among legal academics and patent practitioners.
Now he’s a bit of a hot commodity, with the luxury of turning away clients whose positions are incompatible with his scholarly work. It’s the credibility his expertise lends that attracts clients in the first place.
“Most appellate lawyers are general practice attorneys and have appeared before the Supreme Court a number of times, and that’s a real advantage,” he said. “But sometimes it is also hard not to have substantive grounding in patent law to argue a case, and you may see more patent people appearing before the court now.”
Other patent litigators may still get their chance to appear before the high court � a slew of patent cases are waiting in the wings for cert approval.
“I can think of at least four other cases out there that involve some pretty big patent issues,” Lemley said. “I wouldn’t be surprised if the trend continues.”