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The debate over patent trolls is dividing the intellectual property bar. In one of the most overt examples of choosing sides, litigation firm Howrey provocatively proclaims in a new brochure for clients that it absolutely won’t represent trolls � and criticizes firms that do. “As a firm policy, Howrey does not litigate for ‘patent trolls,’ ” the page blares underneath a picture of a crossed-out cartoon troll. “ Why support firms that are helping perpetuate this scourge on legitimate businesses everywhere?” Companies that hold patents for the sole purpose of licensing � and suing � have raised the ire of big business and been derogatorily labeled as trolls. Historically, big law firms shied away from representing patent holding companies � which often sue entire industries with a single set of patents � because of the potential conflict with important clients. But as these IP outfits have become financially successful, some big defense firms have taken on cases. Firms such as Fish & Richardson and Cooley Godward Kronish represent some of the more high-profile patent holding companies. Fish works for Rembrandt Technologies and Palo Alto, Calif.-based Cooley represents Acacia Technologies Group. Washington-based Howrey used to represent some IP holding companies but decided late last year that it was time to pick sides, said Henry Bunsow, an IP veteran who heads the firm’s Northern California offices. “It became apparent that we were going to be running into some conflicts down the road,” Bunsow said. “We decided it was madness to work both sides of the street.” Howrey is not alone Howrey isn’t the only firm to swear off patent holding companies � although few broadcast it in the same way. Charlene Morrow, head of IP litigation at Fenwick & West, said her Mountain View, Calif., firm steered away from representing such companies a few years ago. Large technology clients, she said, had begun to note that they’d prefer that Fenwick didn’t help holding companies do their business. Other big firms say it’s not a problem to do a few well-chosen cases for holding companies. Michael Rhodes, the head of Cooley’s litigation department, said his firm takes the occasional case, but only if there isn’t a conflict with a company or industry that Cooley represents. Rhodes said that’s what happened when the firm decided to represent an Acacia subsidiary that is suing more than a dozen blue-chip tech companies, from Dell Inc. to Hewlett-Packard Co., for allegedly infringing patents related to controlling printers remotely. International Printer Corp. v. Brother International Corp , No. 07-0036 (E.D. Texas). Even though the head of Cooley’s IP practice told The Recorder, an affiliate of The National Law Journal, in 2006 that he wanted to do work for IP holding companies, Rhodes said Monday it’s actually a rare exception and not the rule. “More often than not the answer will probably be ‘no’ in the area of patent holding companies,” he said. At Morrison & Foerster, IP veteran Harold McElhinny said that, given his firm’s clients, it would be difficult to represent someone suing an entire industry without a conflict arising. But the firm judges opportunities on a case-by-case basis, McElhinny said. For example, Morrison is currently working in the Eastern District of Texas representing an inventor suing a laundry list of car companies � from Nissan to Porsche � over a patent for monitoring tires electronically. MHL Tek LLC v. Nissan Motor Co., No. 07-00289. “We expect clients to hire us because of our expertise,” McElhinny said. “We haven’t found it necessary to take any pledges.” Cooley’s Rhodes said he didn’t think Howrey’s brochure would help it get any clients. “Clients want to know what your experience is, what your trial record is,” Rhodes said. “I’m not sure that it adds anything to demonize a whole class of litigants.” A big problem for a firm trying to draw a line in the sand is that a patent troll is often in the eye of the beholder. Some large companies, like International Business Machines Corp. and Qualcomm Inc., have aggressive licensing programs, which throws some water on the perception that it’s just the province of shell corporations. In other cases, inventors have legitimate claims against a number of large companies. “To some extent, the definition of troll can be ambiguous,” said Neil Smith, an IP lawyer in Los Angeles-based Sheppard, Mullin, Richter & Hampton’s San Francisco office. “Licensing is a legitimate use of your patents � if you’re licensing, does that mean you’re a troll, or does that mean you’re not a troll?” In dividing the IP universe, Howrey defines a patent troll as “an individual or company whose sole business is acquiring patents for the purpose of forcing legitimate companies to take licenses or otherwise pay money � usually through threat of litigation.” Howrey does represent some companies that others label as trolls, such as chip maker Rambus Inc. Even though Rambus gets most of its revenue from licensing and will sue for infringement, Bunsow groups it with research institutions because it develops its own IP.

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