Saving Money in Patent Litigation: Hiring the Best Law Firm

Patent litigation is a high stakes game.  Potential damages can be astronomical and the cost of litigation alone can bankrupt a startup.

When you engage in patent litigation, whether as the plaintiff (the party suing) or as the defendant (the party being sued), you want to win.

To win, most companies want to hire the best law firm.  And many companies believe the hype and think that the best law firm is the biggest and brightest—the flashy law firm with the big marketing budget, hundreds of lawyers from the top schools, and slick, well-dressed litigators.

In reality, to win a patent case, you want to hire the best team of lawyers — lawyers who understand both patent law, technology, and litigation strategy.  And those patent litigation lawyers may or may not be in the mega law firms with the opulent offices. The best lawyers for your case may not have flashy personalities or wear expensive suits. they may be nerdy and stutter, but the best lawyers will understand patent law in all of its ugly complexity.

Patent law is a difficult specialty.  Patent law concepts can be obtuse, fuzzy and difficult to translate and apply.  Frequently, patents involve devices and processes that are complicated and highly technical.  Consequently, to prosecute patents before the US Patent and Trademark Office (the PTO), a person must have a science degree or a minimum number of college credits in physics and chemistry and take a test about patent law and the complex PTO rules (the patent bar).

If an attorney passes the patent bar, they can become a registered patent attorney.  In the old days when I took the test, the pass rate for the patent bar was less than 50%.  In my exam room, there were many people who were taking the test for the second or third time.  I passed the first time I took the test, but it was hard to pass precisely because patent law is so convoluted and complicated. Registered patent lawyers have demonstrated that they understand patent law.

Attorneys who specialize in patent litigation — litigation involving patent infringement or patent validity — may or may not be registered patent attorneys.

I’ve done patent litigation for over a decade and I’ve worked with and against hundreds of patent litigators in a range of law firms from the flashy to the plain.  You can find amazing patent litigators in many types of law firms.

There are two primary types of law firms who do patent litigation:  big, general firms and intellectual property (IP) specialty firms, which may or may not be large.

The Law Firm Hierarchy and Big General Law Firms

Here is how general law firm prestige and hierarchy works and how it gives companies a perception of value.

The core worth of lawyers is their intelligence, knowledge, and experience.  Big, general law firms who pay big salaries want to hire and train the lawyers that they deem to be the best and the brightest.  This means that they usually hire people who graduate from the top law schools.  A law firm’s prestige is based in part on the prestige of the law schools attended by its lawyers.  (A lawyer explained this to me before I went to law school, which is part of the reason that I went to an expensive top law school instead of a cheap, lower-ranked, local one.)

Law schools admit students primarily based on their grades in college and their law school entrance exam (LSAT) scores. Thus, big law firms end up full of lawyers who went to top schools.  Consequently, these firms are supposed to have the smartest and therefore best lawyers.

In the context of patent litigation, the problem with some big law firms is that they end up full of English, political science, and history majors who know squat about technology or patent law.  It is far easier to get good grades in English than chemistry and get into a top law school.  Consequently, at big, general law firms, there can be a dearth of attorneys with science backgrounds who can understand complex technology — the type of technology that is frequently at issue in a patent case.  This is why these types of law firms frequently allow non-patent lawyers to litigate patent cases:  the attorneys may have graduated from a top law school but they are not qualified to take the patent bar.  Some of these top grads are still great at patent litigation and some are not.  In large part it depends on the lawyer’s general curiosity level and interest in technology.

Many technical people with science degrees work while they go to law school and therefore attend local law schools at night.  Many of these attorneys couldn’t even get an interview with a top, general law firm because of the ranking of their law school.  I think this is far more a reflection on the law firm than the person.

Intellectual Property Specialty Law Firms

In contrast to big general law firms, intellectual property firms that specialize in patent law care most about a lawyer’s technical background rather than the ranking of their law school.  An IP specialty firm understands that intelligence and competence doesn’t necessarily correlate with the prestige of a top law school.  Understanding technology is critical for patent specialists.  These firms are full of people with technical degrees, many with PhDs, some of whom went to less than stellar law schools.  At these types of firms, usually only registered patent attorneys do patent litigation.

Some large general law firms have tried to address this technical gap by swallowing small IP specialty firms whole, thus increasing the numbers of technical lawyers and registered patent attorneys in their ranks and improving their ability to do patent litigation.

What type of law firm has the best patent litigators?

These two general types of law firms, the big law generalists and the IP specialists, compete for patent cases.  Some big general firms claim that the IP specialty attorneys are not “real” litigators and therefore not as competent as big, general firm litigators.

In turn, some IP specialty firms claim that the big, general firms don’t have attorneys qualified to litigate patent cases with complex technology.

I’ve worked at both types of firms and again the reality depends on the personality, skill, and experience of the individual attorneys. At big general firms I’ve seen great patent litigators who don’t have science degrees.  When I was at an IP specialty firm, I’ve also been co-counsel to a big, general firm because they literally didn’t have enough patent litigators who had the technical knowledge and understanding of patent law to prove infringement in a very technical, difficult case.

What I know for sure is that high profile law firms, whether general or specialist, will cost a company the most in attorneys’ fees because the big firms generally have a much higher billable hour rate.  They also have astronomical overhead. Beautiful offices and high salaries raise rates.

Big law firms may or may not be worth their fees depending on the individual lawyers running the case. With the right lawyers, it can be cost effective to hire a large, expensive firm but you have to select your lawyers carefully and manage the case closely.  (This is assuming that you don’t go with a law firm that takes cases on contingency, which raises a whole host of other issues.)  The biggest cost is losing the case.

In the end, it is the individual lawyers who are critical to success in a patent case.

And in my personal, cynical opinion, it is the management style and sometimes greed of the top attorney and law firm that can dramatically vary the cost of the attorneys’ fees.

A small company can save millions by knowing what to look for to find a pragmatic, efficient, winning litigation team.

In my next posts, I will describe what I believe are the characteristics of the best and most cost effective patent litigation attorneys.