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The Gemstar patent brawl was so intense that lawyers filled eight counsel tables in a Washington, D.C., courtroom and took up most of the public seating to boot. Like most patent trials, it was a largely male affair, so packed with testosterone that even a seasoned litigator like Rachel Krevans felt a little odd as she stepped to the front of the courtroom. The Morrison & Foerster partner was the only woman putting on a witness and the only one speaking in court — save for the female lawyer whose job was to track exhibits that were being presented. Krevans was representing a pair of companies being sued by Gemstar-TV Guide International Inc. over allegations that they had infringed the television listings giant’s cable TV programming technology. As she scanned the Gemstar team, she said she saw “a sea of men in dark suits, table after table and row after row. If you took a black and white photo of the other side you couldn’t say whether it was 1940, 1950, 1960, 1970 or 1980. You wouldn’t have been able to date the picture.” Krevans wasn’t the only one struck by the scene. She had talked to a woman on Gemstar’s legal team who had been very active in the case but when the trial started wasn’t allowed to examine witnesses or sit at the counsel table. Instead, she was relegated to the back of the room with the spectators. “She was very unhappy about it,” Krevans said. “She was more active in the case than a number of lawyers who examined witnesses.” Patent litigation is one of the hottest — and most lucrative — practice areas in the legal profession. It’s studded with high-stakes cases that can drag on for years — Gemstar’s case, for example, has been in the courts since 1993. In other words, it’s a billing bonanza for law firms and can turn a lawyer into a marquee name. For women, though, getting a starring role in a patent trial is rare and difficult. A review of 13 firms with top patent litigation practices shows that of 512 partners, 80 are women. And even fewer women — 42 — have been in a lead role on a case that went to trial. Part of the problem is simple history. For decades, only lawyers with engineering degrees handled patent cases — and with rare exceptions they were men. That pushed women into intellectual property practices that didn’t require technical backgrounds, like trademark and copyright. The emergence of general practice firms as players in IP has helped women crack the patent litigation bar. And more women are seeking technical degrees. Still, women who have worked to break into patent litigation say firms haven’t done enough to get them into court, promote their work to clients, or to adapt the practice to family demands. “It’s like there is this blind spot,” said Shelley Wessels, a partner at Fish & Richardson’s Redwood City, Calif., office. “They are not keeping us down intentionally. But apathy is the worst enemy we have.” A PIONEER’S PROBLEMS Deborah Bailey-Wells was one of the first women to break into a job at an IP firm. And she had to wage a fierce campaign to get it. Back in 1984, Bailey-Wells was clerking at Limbach & Limbach as she attended law school at the University of San Francisco. She desperately wanted a job at the firm. But Limbach only hired lawyers with technical degrees — and for the most part, that meant only men. Limbach wasn’t an anomaly. Most IP boutiques at the time were male bastions. “Patent firms required an engineering degree and not many women went into engineering in the early days,” said William Anthony Jr., head of Orrick, Herrington & Sutcliffe’s IP group. Anthony began his legal career in 1969 at an all-male patent boutique in Detroit. As Bailey-Wells finished school, she remembers glancing back at the Ferry Building where Limbach had its offices and vowing to herself that she’d be back. But the firm hadn’t even considered her for a job, and Bailey-Wells took a position at an insurance defense firm. She hated it. “I’d go home every night and be crying,” Bailey-Wells said. “I was so despondent.” A few weeks later, though, she heard through the grapevine Limbach was looking for a lawyer, and a technical background was not a requirement. Angry that Limbach’s management hadn’t sought her out, Bailey-Wells sent in her resume with Limbach attorneys listed as references and called every partner to lobby for the position. She convinced them to hire her, and they put her to work in a copyright and trademark practice. In the late ’80s, the firm was looking for a lawyer with trial experience to help out its patent litigation practice. At that point, Bailey-Wells had done four or five trials in her practice area. “That’s how I got into patent litigation,” Bailey-Wells said. She was helped by the fact that she had “done tons of document research and was surrounded only by IP lawyers.” And she said, “I was so damn pushy — when I said I wanted to be a patent litigator they knew how obnoxious and tenacious I could be,” she said. Limbach has since folded, and Bailey-Wells is now a partner at Pittsburgh-based Kirkpatrick & Lockhart, which hired her in March to build an IP practice for the firm in San Francisco. Tenacity hasn’t been the only factor that’s helped women inch into patent litigation. Women have increasingly pursued science degrees before going to law school. According to the National Science Foundation, women held 2.1 percent of engineering bachelor’s degrees in 1975. By 2000, the number had climbed to 20.5 percent. The emergence of biotechnology as a patent issue has also helped matters for women, Orrick’s Anthony said. Of bachelor’s degrees awarded in biological and agricultural science in 2000, 55.8 percent were held by women, the National Science Foundation said. But it wasn’t until general practice firms started doing IP litigation in the 1990s that more women were able to get a shot at IP cases. Big firms came on the scene when patent disputes became profitable, and that occurred following the creation of the U.S. Court of Appeals for the Federal Circuit in 1982. The Federal Circuit — the exclusive venue for patent appeals — was “more likely to rule in favor of patent holders,” said Patricia Thayer, a partner at Heller Ehrman White & McAuliffe. And damages climbed from awards ranging below a couple of hundred thousand into the millions of dollars. With so much at stake, companies wanted lawyers with lots of trial experience rather than those with technical degrees that didn’t have experience trying a case to a jury. And that gave women litigators at general practice firms a chance at patent cases. MoFo’s Krevans is among the women who made that leap. A one-time tax lawyer, she got her first patent case in 1994 when MoFo partner Harold McElhinny asked her to take over a biotech case for Chiron Corp. The dispute settled the midnight before trial and by then she had become an IP specialist. “I thought of it as litigation,” Krevans said. “I didn’t think of it as IP.” SIZE MATTERS While big firms opened the door for more women to enter the field, they still don’t have many women running patent trials. MoFo has six women partners who serve as first or second chair on a case that’s gone all the way to trial, Orrick has three, and Weil, Gotshal & Manges has one. IP boutiques also don’t have many women on the front lines. Washington, D.C.’s Finnegan, Henderson, Farabow, Garrett & Dunner has 12 women partners who’ve been first or second chair in a patent case. Three have been in the lead role on a case that went to trial. Boston’s Fish & Richardson has 11 women who’ve led a patent case — seven have gone to trial. Susan Spaeth is managing partner of operations at Townsend and Townsend and Crew, one of the most prominent IP firms in the country. Although she’s a 14-year veteran of the firm and one of its top leaders, she has never served as first chair on a trial. When hundreds of millions of dollars are at stake, “you have to have a lot of tenure to rise to second chair, let alone first,” Spaeth said. “Since most patent cases settle, getting experience is hard.” Prominent patent litigator Leora Ben-Ami, a partner at Clifford Chance’s New York office, said the size of patent cases has kept women from getting necessary experience. “Cases that go to trial are either bet the company or bet the product line cases,” she said. “So there is not an opportunity [for women] to start on a smaller case and work their way up” as can be done in commercial litigation. Ben-Ami, who began practicing in 1985 and has been first or second chair in about 20 cases, said women’s experience also depends on the attitudes of senior partners and clients. In addition to being mentored by Clifford Chance partner John Kidd, Ben-Ami said clients allowed her to take a leading role. Pfizer Inc. let her handle half a patent trial when she was a fourth-year associate, she said, and clients Genentech Inc. and E.I. du Pont de Nemours and Co. let her first-chair at a relatively young age. Clients also helped Lois Abraham, one of the first women to handle IP litigation in Silicon Valley, get her first technology case in 1975 representing IBM Corp. in antitrust litigation with the Justice Department. “IBM was willing to teach lawyers like myself who were not engineers about computer products and how they worked,” said Abraham, who retired from Phoenix-based Brown & Bain in the mid-1990s and now serves as an arbitrator with the American Arbitration Association. But clients are generally reluctant to hand over cases to women, female litigators say. They want to hire big-name trial lawyers, and women generally don’t yet have the name recognition of male colleagues. Men usually are the ones that get listed in articles about top patent trial lawyers. Women partners say firms also are at fault for not promoting their female partners. Senior male partners sometimes neglect to introduce a female colleague to a client or to promote a woman’s role on a case, said a woman litigation partner who spoke on the condition of anonymity. All these factors “have to be aligned before we can get in there,” she said. “Whereas for the guys all this stuff seems to happen automatically.” Laura Peter, IP director at Alviso, Calif.-based Foundry Networks Inc., said it’s even harder to be an IP lawyer in-house. “Silicon Valley is very much a boys’ club,” said Peter, who started her career as a patent litigator at Townsend. “That’s something you have to deal with.” Women also face the age-old issue of trying to balance work and family — a task that seems even more daunting in patent litigation with its lengthy, far-flung trials. “I think there is a perception that trial work — involving big cases is less hospitable to women with families and a part-time schedule,” said Keker & Van Nest partner Daralyn Durie. “It continues to be a real issue, and there is a certain amount of complacency around it.” ENCOURAGING SIGNS Although men still dominate patent litigation, women say they are encouraged by the numbers of their female colleagues who have reached the partnership ranks and by the growing number of female associates. “It’s still better than it was,” Thayer said. “I remember going to court and never seeing another woman.” But now, she said, there are many fifth-, sixth- and seventh-year women associates that go to court. And in one case she is working on with Clifford Chance’s Ben-Ami, the team at the counsel table is often entirely female. Some firms also have been making moves to change the gender imbalance. Weil Gotshal has set up a task force to evaluate how it can attract, retain and promote women in all practices. “Because we believe there are a lot of reasons why many women will be great patent trial lawyers, we are working very hard in this area, both because it is the right thing to do and we will gain a competitive advantage,” Matthew Powers, the head of Weil Gotshal’s global patent litigation practice, said in an e-mail. And MoFo has been trying to encourage women in the firm’s litigation ranks to move into the patent arena. “It is a difficult problem to address on a short horizon,” MoFo’s McElhinny said. “One, because it’s difficult for people to have experience to be a first chair trial lawyer in cases of these magnitude … and there is a natural resistance that any reasonable person feels when asked to focus on technologically complex issues.” Firms also say that moving women into lead positions also benefits the firm and its clients. They can play well to a jury pool that’s now more than 50 percent women, as well as to the many women judges now hearing patent disputes. “If you’re looking to be persuasive to a judge and jury you have to take demographics in mind,” said McElhinny. “The notion the jury will pay attention to old white guys is goofy. They want to see someone who looks like that jury panel.” Male and female IP litigators say it is only a matter of time until the makeup of patent trial teams changes but that it will take the commitment of clients and senior partners. “Once clients see that [other companies are hiring women as lead attorneys] it will become more commonplace,” Ben-Ami said. “It also takes someone who is a good trial lawyer to mentor women and say, ‘I’m going to make it happen.’”

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