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When former Stanford Law School Dean Kathleen Sullivan rose to argue on behalf of Independent Ink Inc. in a high-stakes intellectual property and antitrust case at the Supreme Court on Nov. 29, it seemed like a natural fit. The ink company is based in California, and Sullivan, by affiliating herself with the California firm Quinn Emanuel Urquhart Oliver & Hedges last year, has catapulted quickly to the ranks of top Supreme Court advocates, where few other West Coast attorneys can be found. But there is more to the story, according to Independent Ink President Barry Brucker. Brucker says that Sullivan is “a brilliant Supreme Court litigator who did an amazing job” at oral argument. But in the months leading up to the argument, Brucker says, he was stunned by how hard it was to find a D.C. Supreme Court practitioner willing to take on his case and thereby go up against an intellectual property community solidly arrayed against him. Brucker’s company sells ink that can be used with printheads made by Illinois Tool’s Trident division. He accused Trident of illegal “tying” under the Sherman Act, because the company requires customers to buy its unpatented ink along with its patented printhead. The U.S. Court of Appeals for the Federal Circuit sided with Independent Ink, reluctantly invoking a Supreme Court precedent under which a patent is presumed to give its owner the “market power” that makes it vulnerable to an antitrust claim. As amicus curiae briefs flowed in, Brucker estimated that companies worth more than $1 trillion, from Pfizer to Verizon, were lined up against him, trying to kill off the presumption because it makes patent holders easy targets. Brucker realized he needed a Supreme Court specialist. “You don’t go to a general surgeon for brain surgery,” says Brucker, who is also a member of the Beverly Hills, Calif., City Council. He first made contact with Jeffrey Lamken, head of Baker Botts’ Supreme Court and appellate practice in Washington. Lamken was conflicted out because his firm represents a company related to Illinois Tool, but he gave Brucker the names of other specialists — about 20 in all. “I called every one of them,” says Brucker. But he was turned down by almost all — some because of a direct conflict, but most because of what he says turned into “a broken record of paranoia.” Lawyer after lawyer told him that opposing the patent holders’ position “would not be looked on favorably by my client base,” Brucker quotes them as saying. Eventually, he looked elsewhere and found an enthusiastic Sullivan, who was willing to represent his “little train that could” for a reduced rate. Lawyers knowledgeable about the case and about intellectual property law were divided over Brucker’s claims. Jonathan Rubin, a D.C. solo practitioner who wrote a brief on Brucker’s side for the American Antitrust Institute, agrees that “there’s a kind of absolutism in the IP community these days” that would leave many law firms reluctant to cross patent holders by representing Brucker. Another lawyer familiar with the case, who did not want to be named, counters that there is no such orthodoxy in the IP legal community, especially at large firms that can represent a spectrum of clients without fear of reprisal. But another lawyer says that large D.C. firms are in fact intimidated by increasingly powerful IP clients. “There is a fear that a client can punish you, especially at the mega-firms where it is hard to move in any direction without stepping on somebody’s toes,” says this lawyer. “That’s not how it’s supposed to work.”

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