Whoa…! This article does make a point that litigation can result, but usually infrequently, in what may be considered substantial damages awards, but keep this in mind when reviewing this matter:

Quinn & Emmanuel (Q&E) does nothing but litigate. I did a check on the backgrounds of about 25 members of its IP litigation group, and noted that only a very, very few have any kind of a technical background (all undergraduate) and none of them have ever practiced IP law in any context other than litigation. None of those I surveyed are even admitted to practice before the USPTO, something that I consider a necessary predicate for actually learning what IP law is and how to apply it fairly and consistently.

Q&E apparently took this case on a contingency fee basis. Many who practice nothing but litigation do this, and it is thus in their interest to “win” and collect a sizeable fee. Of course, clients are only too happy to sign on the dotted line since they will not have to pay any money to have the case litigated. Apparently Q%E’s share of the award totalled $13M, an amount that is currently in dispute and the subject of litigation. Had this matter originally been litigated by a “full-service” IP firm, such as the one now defending ConnectU, the firm’s fees would amost certainly have been but a small fraction of the $13M to which Q&E says it is entitled. While perhaps not the case here, in many cases where a non-IP, litigation-only firm is the litigator my experience reveals that the non-IP versus IP firm fee differential can be as much as 10-1 (I base this number on substantial experience). Moreover, only a very, very few IP firms ever undertake representation on a contingency fee arrangement, which has a very sobering and restraining effect on a client that is contemplating resort to litigation.

You keep using NTP v. Rim as the poster child of all that is wrong with the patent system. Based upon my close review of the entire case at both the district and appeal court levels, it is clear that the final number for damages was many, many times higher than it otherwise would have been were it not for the inexplicable intransigence of Rim’s lawyers. NTP was originally prepared to settle the case for a very small fraction of what was eventually awarded. It was Rim who said “pound sand”, drew out discovery far longer than it should have taken, challenged the meaning of even “single” words that raised litigation costs to ridiculously high levels, and in general gave the appearance that its goal was to litigate NTP into submission. To me this was an abuse of the legal system, was totally unnecessary, and gave the litigation a “black eye” that would likely never have occurred had the attorneys on both sides of the aisle been full service IP firms like ConnectU’s current representative, Finnegan, Henderson, Farabouw, Garrett and Dunner. Quite unlike non-IP firms dedicated to litigation, Finnegan et al does not need to undertake a “learning curve” because it already well knows the law. The same can not be said for non-IP litigators.

If anything, this case in my view reflects an unhealthy trend that began in the late 80’s and early 90’s when non-IP litigators decided that IP litigation was a potential cash cow and decided to add it to its portfolio of “services”. It is in view of this “trend” I have always adovcated that a legal specialization be created to severely restrict those firms that hold themselves out as “IP experts”, when in my opinion this is very, very, very rarely the case. I am confident that if this was done the number of litigated cases would drop precipitously and reason would return to the system.

I devoted many years of practice, about 8-10 years, before I felt confident enough to say knowledge of the entire body of IP law had become a part of my “legal DNA”, and it irks me to no end that so many have simply sidestepped taking the time to do this and regularly advertise their “extensive experience”. Of course, their sidestep did have one beneficial effect. When facing such non-IP firms the majority of the time it was much like “shooting fish in a barrel”. That was good for my clients, but without a doubt the interests of the opposing party were poorly, and at times, unprofessionally represented. Of course, the firm for the opposing party never bothered to mention this to its client who lost on all counts before the district court and appeals court.