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Finally, a bright spot. The faltering economy hasn’t brought much good news for big firms in recent months: Deal work has slowed to a crawl, and litigation, usually the backbone of firms during rough economic weather, hasn’t been the support it usually is. With one exception: intellectual property litigation. Washington firms are benefitting from big IP battles in the technology and pharmaceutical industries, including one of the largest between Google Inc. and Viacom Inc. Just a few months ago, Dickstein Shapiro helped client Dr. Bruce Saffran score a huge $500 million damage award against Boston Scientific Corp. Saffran alleged his patent on drug-coated stents had been infringed. Doubly sweet for Dickstein: It was a contingency case, which means it could collect $150 million or more in fees, assuming the standard 30 to 40 percent arrangement between Saffran and the firm. And because Boston Scientific continues to sell the product in question, damages could reach $1 billion by the time the case gets through appeal, the firm says. Recruiters may not be able to sell corporate or real estate lawyers, but IP litigators are still in high demand. Crowell & Moring’s D.C. office, for example, gained six IP lawyers from Buchanan Ingersoll & Rooney in January, including Teresa Stanek Rea, president-elect of the American Intellectual Property Law Association. And in February, Dickstein welcomed patent litigators Jeffrey Sherwood and Frank Cimino Jr. from Akin Gump Strauss Hauer & Feld. Washington legal recruiter Jeffrey Lowe says finding lawyers for “IP litigation is easily number one on every firm’s most-wanted list.” (Graduating law students, take note.) Lawyers who have practiced in the field for decades say that as competition intensifies in a tough market, companies get even more protective of their intellectual property. Consequently, they are more willing to fight for it in court. Firms stand to make serious money from the work. In 2007, patent litigation with more than $25 million in damages at stake netted a median of $5 million in fees, according to data collected by AIPLA. Trademark litigation with more than $25 million at stake resulted in a median of $1.25 million, and copyright litigation with more than $25 million at risk offered a median of $1 million in fees. THE APPEAL OF CLERKS At the moment, 350-lawyer Finnegan, Henderson, Farabow, Garrett & Dunner, which specializes in IP litigation, is focused on recruiting former law clerks from the U.S. Court of Appeals for the Federal Circuit. Managing partner Richard Racine says having these experts on staff is invaluable when figuring out how to position cases for appeal. An additional two former clerks will join the firm this fall in the upcoming first-year associate class. Five joined last year. Dickstein also expects to grow in IP work. IP practice leader Gary Hoffman says the firm, which by month’s end will have 85 IP lawyers, plans to grow the group to 100 lawyers by next year. Hoffman also represents Dr. Saffran in a case against Johnson & Johnson. Last week, he filed a patent infringement suit for SSL Services against Citrix Systems Inc. Eight years ago, there was essentially no IP presence in Hogan & Hartson’s D.C. office. That changed when Raymond Kurz joined the firm in 2000 from the IP boutique then known as Rothwell, Figg, Ernst & Kurz. Kurz, who co-chairs the IP litigation group, says today Hogan has about 120 lawyers firmwide focusing on IP matters, with up to 70 percent of the work coming from litigation. Hogan’s IP clients include Takeda Pharmaceuticals, Motorola, Sun Microsystems, Toshiba, and Kimberly-Clarke. One of the firm’s most recent wins was in March for Takeda. A Delaware federal court found that two of the company’s patents for the drug Prevacid were enforceable against a generic product. Though Kurz wouldn’t reveal how much money the firm stands to make from that matter, he says patent litigation can fetch anywhere from $2 million to $15 million in legal fees. McDermott Will & Emery’s IP group has roots similar to Hogan’s. Partner Brian Ferguson and 16 others started the practice when they joined McDermott 12 years ago from Chicago-based IP firm Brinks Hofer Gilson & Lione. Ferguson, who is the deputy head of the firm’s intellectual property, media, and technology department, says there are now 225 IP lawyers practicing at the firm. He successfully argued for the petitioner in In re Seagate Technology, which was decided by the Federal Circuit in August. The court’s ruling raised the standard for proving willful infringement in patent cases. The copyright dispute raging between Google and Viacom over video sharing on Google-owned YouTube shows just how massive IP cases can be. Fifty lawyers from Mayer Brown are in the throes of discovery for Google. One of the lead attorneys on the case, D.C. partner Richard Ben-Veniste, says the team is in the process of reviewing about 10 million documents. Discovery is scheduled to close in December, but Ben-Veniste says the deadline may not hold, given the incredible workload. Jenner & Block is representing Viacom, led by D.C. partners William Hohengarten and Donald Verrilli Jr. and New York partner Susan Kohlmann. GENERALLY SPEAKING In-house legal department consultant Rees Morrison says the sheer volume of work involved in IP litigation often requires the manpower that only a major general-service firm can supply. It often takes a seasoned general litigator to effectively break down a highly technical IP matter in terms that a judge or a jury can understand, he says. That’s part of the reason clients are often bypassing IP boutiques in pursuit of hard-core courtroom experience. Many cases are drawing from D.C.’s most prominent litigators. Wilmer Cutler Pickering Hale and Dorr partner Seth Waxman, for one, has handled a number of IP matters at the appellate level. At the beginning of this year, Waxman and fellow Wilmer partner Edward DuMont secured a Federal Circuit victory for TiVo Inc. against EchoStar Communications Corp. The court upheld a previous verdict that EchoStar had infringed a TiVo patent, and awarded damages of $74 million. On May 5, Waxman is set to argue another patent infringement matter for clients ArvinMeritor, Pressure Systems International, and Equalaire Systems in the Federal Circuit. Waxman, who first became familiar with patent litigation during his tenure as U.S. solicitor general, says he’s no expert, and is “a general litigator” by choice. “I’ve always made it a professional goal never to specialize in any particular substantive area of law.”
Marisa McQuilken can be contacted at [email protected].

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