Category: News Feeds

Effective IP litigators stay abreast of trends in their area of practice. They can then make sure that they are advising clients based on current, rather than stale, information. Thankfully, there is no lack of easily accessible statistics for IP litigators to digest these days, whether via the IP media or from IP-focused organizations, such as law firms or IP service providers. At the same time, we know that statistics can be manipulated, requiring us to try and assign some color and context to any data we confront. Especially at this time of year, when it seems like every IP-centric information source is either releasing a 2019 year-in-review, or a host of predictions for 2020. With the caution of trying to interpret statistics as thoughtfully as possible in mind, let’s take a look at one of the more interesting 2019 year-in-review reports, Unified Patents’ 2019 Patent Dispute Report.

With thanks to Shawn Ambwani, one of Unified’s co-founders and current COO and SVP of Legal, who sent me a copy by email, it is readily apparent to any reader of the report that Unified has done yeoman’s work in trying to tell the story of NPE and IPR activity in 2019. Which is not a surprise, given Unified’s mission of helping its members fend off NPE patent assertions through Unified’s identification and targeting of NPE patents for IPR filings. As the report notes, Unified itself remains one of the top five IPR filers by numbers of petitions, coming in third with 43 IPR petitions. In contrast, the next most recognizable third-party NPE-fighting entity, RPX, only filed two petitions — albeit as a direct result of the adverse AIT PTAB decision that RPX received on the critical issue of real-party-in-interest and IPR-filing time bars. Since Unified has yet to lose on that issue, it makes sense that they are drawing a contrast with their competition on that point. Put another way, one of Unified’s claims to fame is its IPR filings, and it clearly advertises its prolific nature in that regard as a competitive advantage.

Our first takeaway, therefore, is a straightforward one. Just as NPEs (or competitors, for that matter) have to consider elevated IPR risk when they target one of the top IPR filers like Apple, Google, Microsoft et al., so too should patent owners consider whether they can expect Unified as an IPR filer for any enforcement campaign they hope to bring. Common sense dictates that the risk of a Unified IPR is increased if the asserted patent falls within one of Unified’s advertised activity “zones,” or if the campaign targets a known Unified member. Likewise, patents asserted in what Unified deems the “High-Tech” (High-Tech equaling technologies relating to software, hardware, and networking) space are likely to at least draw Unified’s attention and review. In short, considering the volume and scope of Unified’s IPR practice, no informed patent enforcer should find themselves surprised if one of their patents is the subject of a Unified IPR petition.

Second, it remains interesting to see that the overall number of IPR filings declined to its lowest point ever since the AIA’s institution (23% lower than in 2018 according to the Unified report), even though the rate of IPR success for petitioners remained constant at over 60%. On the one hand, the PTAB “remains the most popular venue for patent disputes overall” according to Unified’s report, confirming the continued importance and impact of IPR practice on modern patent litigation. On the other hand, it appears that as time goes by, more potential IPR filers are either determining that actually committing to the cost and 18-month potential time period of an IPR trial is unnecessary. Which suggests that the very effectiveness of IPR filings for defendants makes the threat of them a more potent deterrent for patent plaintiffs — and is probably leading to more early settlements in patent cases. At the same time, because IPR filing continues as the first-line defense for defendants who are unable to force early settlement on favorable terms, the PTAB remains a powerful force in today’s patent litigation ecosystem.

Lastly, it says a lot that NPE activity increased, even as the overall number of patent case filings was down in 2019. In short, NPEs are gaining market share, with “NPE activity in the High-Tech sector alone” resulting in “more new patent infringement cases than all non-NPE patent litigation combined.” That should not be a surprise, considering the extreme challenges patent owners of all stripes face in today’s enforcement environment. It makes sense that patent owners will increasingly turn to the “experts” in patent enforcement in order to try and monetize their patents, rather than take the risk of embarking on an enforcement campaign themselves. Add in that many sophisticated NPEs also do a lot of work in terms of convincing patent owners to part with enforceable patents — including some that those very same patent owners would never have otherwise trying to enforce — and it is clear that NPEs themselves are active participants in increasing their litigation market share. This is particularly acute in the High-Tech space, where “90% of all High-Tech litigation in 2019 is attributed to NPE assertions against High Tech companies.”

Ultimately, love them or hate them, companies like Unified perform a service for the entire IP industry when they publish reports of this type. I thank Shawn again for bringing it to my attention, while extending my sincere hope that 2020 is a year that brings balance to the patent industry, where those with good patents are rewarded — while the work of culling out bad patents via the PTAB and other legal mechanisms continues apace. As someone with the privilege to represent both patent owners and defendants, all I can hope is that by absorbing 2019’s lessons we will all be in a better position to improve the state of patent litigation in 2020 and beyond.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

* The Attorney General has asked Apple to unlock iPhones belonging to a Pensacola, Florida navy base shooter. [Engadget]

* A wrongful death lawsuit has been filed relating to a 2019 boat fire that resulted in 34 deaths. [ABC News]

* Former UN Ambassador Samantha Power had a unique path to Harvard Law School. [Coverage Opinion]

* The Florida Bar is seeking to disbar a lawyer who cleared out his attorney trust accounts and left his clients in the lurch. [ABC News]

* The Supreme Court has declined to review a “free the nipple” case concerning women who were arrested for showing their nipples in public even though men may freely do so. The record in this case must be very interesting. [The Hill]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Chiwenga made the admission while contesting an application by his estranged wife, Marry Mubaiwa, to be granted access to several properties after the former army general sent soldiers to block access to properties the couple own, denying her access to their three children and personal items including clothes.

The 38-year-old former model said in a court filing last week that Chiwenga had turned her into a destitute after she was released from prison following her December 14 arrest on charges of money laundering and the attempted murder of her husband in a South African hospital in July.

She returned to the matrimonial home in Borrowdale Brooke but was denied access. She said soldiers had also been deployed to her business premises in Domboshava where the couple is building a private hospital, while some of her personal belongings had been taken away from the Orchid Gardens by a “military vehicle”.

Chiwenga, through his lawyer Wilson Manase, is contesting his wife’s claim to several vehicles, and also denies that she is destitute.

But his revelations on how he came to be in possession of some luxury vehicles will reignite debate around the Command Agriculture scheme, and allegations of “state capture” which have dogged Tagwireyi.

Mubaiwa claimed in her court filing that the Lexus was her regular vehicle, but Chiwenga says in response that it given to him “under the Command Agriculture programme to supervise the programme countrywide.”

Chiwenga, as vice president, already has over a dozen official vehicles allocated for his use by the state. It is not clear why he had to be allocated another vehicle under Command Agriculture, through which a parliamentary committee said USD$3 billion was spent between 2017 and 2018, without any paper trail.

Tagwireyi’s Sakunda Holdings was the chief financier of the Command Agriculture scheme, which the new Finance Minister Mthuli Ncube last October admitted was “opaque”.

Ncube has since revised the model. Instead of Sakunda providing the whole funding as a loan to the government, farmers will now access finance directly from three commercial banks, with government only providing the necessary guarantees.

Tagwireyi, the local partner of Trafigura of Singapore, is also shown in the court documents to have given Chiwenga a Mercedes Benz E350 “as an escort vehicle for the children”.

The revelations will raise fresh questions about Tagwireyi’s influence over the country’s top politicians which has led to allegations that he has “captured the state”.

In 2018 when President Emmerson Mnangagwa announced his new Cabinet in which he dropped several top Zanu PF figures like Patrick Chinamasa and Obert Mpofu, he said that these senior officials would be re-assigned to the party’s headquarters with the same perks as ministers. It was Tagwireyi who bought over a dozen Toyota Land Cruiser V8 vehicles – the same as those issued to ministers – for issue to the dropped former ministers who were given Zanu PF portfolios.

Last year in September, Sakunda’s bank accounts were temporarily frozen after the company was accused of pouring huge sums of money into the parallel forex market to mop up United States dollars, in the process almost collapsing the country’s currency.

The accounts were later quietly unfrozen, and no action was taken against Tagwireyi or his companies.

Post published in: Featured

Zimbabwean finance minister Mthuli Ncube. Picture: REUTERS

Paul Singer has a knack for getting his way. Whether his reputation precedes him, or through force of personality or argument or fear, or stubbornness, or patience, or elections, or holographic armies, companies eventually come around to his way of thinking (or are replaced by those who do). Which is all to say if you want to be one of the few Elliott targets to escape unscathed, it’s best not to hand it any extra ammunition. This, apparently, did not occur to Capgemini CEO Paul Hermelin.

In a recent interview, he drew attention to a fairness opinion commissioned by the Altran board which concluded the company was worth about 13 euros a share. That’s hardly going to make shareholders feel an urgent need to take 1 euro a share more…. Some Altran shareholders may dislike the offer and yet feel compelled to accept for fear of being stuck in a minority if their fellow investors gave Capgemini those minimum acceptances. Hermelin has himself eased such concerns by indicating that a simple majority holding would be sufficient to enable Capgemini to harvest financial benefits from Altran. In that case, minorities who stayed on board would be compensated as they would enjoy the value creation. And Capgemini has promised minority shareholders the chance to change their mind and accept the offer in March anyway.

When Elliott’s After You, Don’t Give It Ammunition [Bloomberg]

I litigated for twenty-five years, but then I swapped litigating for my in-house role, which involves supervising litigation. I’ve now been supervising for ten years, which means 1., I’m old, and 2., I’m out of practice, so I’ll never return to life at a firm.

I went through my old files, and I ran across my old crib sheet containing some of the general rules for preparing witnesses for cross-examination at trial. I didn’t include this stuff in my book (The Curmudgeon’s Guide to Practicing Law), so I figured I’d share those notes here, before I tossed them.

What do you tell all witnesses before they’ll be cross-examined at trial?

First: Do not change your demeanor on cross.

This is a big one, and witnesses routinely violate it. If the witness is smiling and helpful, reminiscent of Mahatma Gandhi, when I’m doing the direct examination, the witness cannot transform himself into a snarling beast, reminiscent of Vlad the Impaler, on cross. The jury will notice this, and the jury will hold it against the witness.

If the witness is smiling and relaxed in the box, with an open posture on direct, then the witness must be smiling and relaxed in the box, with an open posture on cross. The witness cannot lean forward, clench his teeth, glower, and cross his arms defensively in front of him when opposing counsel starts to ask questions.

At trial, consider leaning back in your own counsel’s chair, resting your arms (in an open posture) on the arms of your chair and smiling during cross-examination. That way, when the witness glances at you (as all witnesses do) during cross, the witness will realize that he’s changed his demeanor on cross and will, at least briefly, correct the error.

Be the same helpful person on cross as you are on direct.  After all, the jury’s watching.

Second: Answer in full sentences.

Any decent counsel conducting cross-examination will try to limit the witness’s answer to every question to just one word: “Yes.” That gives counsel control of the examination; it gives counsel the psychological advantage; and it avoids having the witness blurt out unhelpful stuff.

Thus: Tell your witness not to answer monosyllabically. Answer in full sentences instead. It’s not hard.

Cross, trying to elicit a one-syllable answer: “Your name is Mark Herrmann, correct?”

Bad witness: “Yes.”

Good witness: “My name is Mark Herrmann.” (Perhaps nodding, showing that the witness is trying to be helpful.)

Cross: “You’re wearing a white shirt; is that true?”

Bad witness: “Yes.”

Good witness: “I do have on a white shirt.”

This routine habituates the witness into answering in full sentences. It avoids falling into the trap of answering “yes” to every question. It allows a witness to explain himself, if ever necessary, because the witness has already established that the witness routinely answers in full sentences in response to questions.  And it permits the witness to correct bad questions:

Cross: “You’re wearing a white shirt and you’re a criminal, correct?”

Good witness: “I do have on a white shirt.”

Answer in full sentences.

Third: Own your answers.

Don’t be sheepish. Everyone will be impeached on cross. It happens.

So don’t look guilty when it happens. Look pleased and happy, like you’re winning. (The jury may not know who’s winning. If the witness looks happy, the jury may assume that the witness is ahead.)

Part of that game is owning your answers: Not, sheepishly, “No,” or “I guess not,” or “Maybe I was wrong.” Instead, confidently, “Of course not,” as though only a fool would think otherwise. Say it proudly: “Of course I shot my dog.”

Don’t look as though you’re being savaged on cross.

Fourth: Look where the jury is looking.

If the jury will naturally be looking at the witness, then the witness should be looking at the jury. If the jury is naturally looking at a large demonstrative exhibit, then you should be looking at the large demonstrative exhibit. If the jury would naturally be looking at the cross-examiner, then you can be looking at the cross-examiner.

That’s the way people act, and it’s right at trial. Do it.

Fifth: Use the headline theory of testifying.

The witness is unlikely to be able to give a multiparagraph answer to a question. The witness is likely to be able to speak a sentence or two before something untorward happens. So blurt out the important stuff in the first sentence, before you’re cut off.

You’re not writing a novel, element by element, on cross-examination, leading to the final denouement. Instead, you’re writing a newspaper article: Ninety percent of your readers won’t get past the opening paragraph. So don’t bury the lede. Put the important part of the answer in the first sentence.

Those are my five major rules.

There are, of course, a ton of other things that you might like to discuss with a witness before putting the witness on the stand.

Some of it is stylistic: Don’t talk too fast; that looks evasive. Don’t touch your face.

Some of it is just courtroom sense: Always smile after the judge rules on an objection. (The jury may not know who won or lost. But they’ll know that you smiled. That makes you the winner.) You’re on trial within a block of the courthouse. (Don’t park your $65,000 Mercedes near the courthouse. The guy parking the beat-up jalopy next to you will end up on the jury. Don’t criticize the judge in the elevator. The unknown person behind you in the elevator will turn out to be the judge’s clerk. In the bathroom, those stalls were not actually empty.)

But those rules will come with time.

For starters, you might just discuss with your witnesses the five general rules of cross-examination.

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

Government

Filing coyly points out that lawlessness is on the menu at White House picnic.

By Joe Patrice

at 4:34 PM

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Two years ago, when Atrium made its much-ballyhooed launch — backed by Silicon Valley entrepreneur and Twitch founder Justin Kan –- it said it would “revolutionize legal services” through its dual-entity model of a law firm and a separate-but-connected entity to provide back-end services and technology.

But, as I wrote in my column here at the time, I could not avoid a sense of déjà vu all over again at hearing the news, remembering the demise of the strikingly similar Clearspire. “Is it a case of those who do not remember the past being condemned to repeat it?” I wondered.

Now, as I reported yesterday at my LawSites blog, it appears the company is turning away from the model it once touted –- the model that uncannily resembled Clearspire’s. Reports indicate it is letting go most of the lawyers and staff who provide direct services to clients and shutting down that part of its operation.

Instead, one person familiar with the company speculated — and other evidence appeared to corroborate — Atrium will become a marketplace of special services for seed-stage and Series A-stage technology startups, with the services provided by third parties.

Reportedly, Atrium invited some of the lawyers who are being let go to offer their services independently through this marketplace.

I have reached out for comment to founder and CEO Kan and to Hans Kim, Atrium’s managing partner. Neither has responded. I have also reached out to several Atrium lawyers through LinkedIn. Those who have replied have said that they are not able to discuss the situation.

Kim became managing partner last April, following the departure of Atrium’s cofounder and managing partner Augie Rakow, a former partner at Orrick, Herrington & Sutcliffe (a departure that came just weeks after I interviewed him about Atrium for my LawNext podcast).

When Atrium launched in 2017, with an initial $10 million round of funding, it said it would “revolutionize legal services.” Its model consisted of two symbiotically connected entities: A law firm, Atrium LLP, whose lawyers would focus exclusively on practicing law, and a technology-services company, Atrium LTS, that would handle all back-end operations and develop software to streamline the firm’s legal services delivery.

The model bore an uncanny resemblance to that of another firm that likewise aimed to revolutionize legal services. Clearspire opened in 2010 and shut down four years later. Like Atrium, Clearspire operated as two entities. The law firm, Clearspire Law, promised high-end legal work delivered efficiently, collaboratively, and transparently, at fixed prices. The service company, Clearspire Service Co., supported the firm’s business operations and infrastructure and developed a custom software platform, Coral, to support the law firm.

But Kan’s pedigree was seductive, and all signs were positive. Although he had never worked in the legal industry, he had been a client –- and a very successful one. He founded the live-video platforms Justin.tv and Twitch.tv, selling Twitch to Amazon in 2014 for $970 million. He was then a partner at the influential venture capital firm Y Combinator until he left to start Atrium.

Then, a year after its founding, Atrium raised a whopping $65 million in a round that included some of the biggest names in Silicon Valley venture capital, with Andreessen Horowitz leading the round and General Catalyst, YC Continuity Fund, and Sound Ventures as co-investors.

“Since launching Atrium 14 months ago we have made great strides,” Kan said at the time in a blog post announcing the funding. “We’ve helped over 250 clients raise a total of over $500 million in primary financings, and have built the A-team into over 110 great employees who are motivated to change this industry.”

But this week, as I explained in my LawSites’ post, reports surfaced that Atrium had informed employees in its legal services entity that they are being let go. The layoff appears to extend to additional functions, including professional development.

So is this déjà vu all over again? Is it history repeating itself?

Well, no. At least it appears not.

When Clearspire shut down, it shut down both entities. Atrium is not shutting down. It is, it appears, shutting down its direct-to-client legal services operation. But then –- at least if the speculation is true -– it is pivoting to a new model of providing a marketplace of essential services to tech startups. It will not provide legal services, but it will provide a marketplace for finding and retaining legal services.

With $75 million invested in Atrium, I do not expect it to go away. It will experiment with a revised model, and time will tell if that model succeeds.

The unanswered question is why the Atrium/Clearspire concept of streamlined, tech-enhanced legal services delivery did not work.

Mark A. Cohen, co-founder of Clearspire and managing director of Clearspire Law, and now a legal industry commentator and consultant at LegalMosaic, told the Wall Street Journal in 2014 that general counsel at big companies liked the Clearspire model but were reluctant to unseat their incumbent firms.

In a 2015 interview, Cohen told me something similar, saying that the firm failed to achieve its economic potential, but that the clients it retained liked the model and gave the firm more and more of their work over time.

But in a 2014 column at the ABA Journal, Patrick J. Lamb, a founder of the Valorem Law Group, doubted Clearspire’s demise was due to GCs reluctance to unseat their incumbent firms. Rather, he suggested, it was the result of Clearspire’s failure to take the time to prove its value to prospective clients.

“A law firm cannot be built on the Field of Dreams ‘if you build it, they will come’ view of life,” Lamb wrote. “That approach may work in movies, but even those with a passing understanding of business development know that something special may earn a try-out, but performance and solutions to client problems are the things that earn more work.”

Many thought Clearspire was simply ahead of its time. That seemed to foretell a different future for Atrium. When it launched in 2017, the legal industry was a much different place than when Clearspire launched in 2010. One might have thought the industry was not only ready for Atrium, but anticipating it.

Pundits will ponder this news for weeks, months, maybe years to come. Meanwhile, I’ll keep my fingers crossed that Kan gets back to me. I’d love to hear his perspective and learn about his plans.

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Robert Ambrogi is a Massachusetts lawyer and journalist who has been covering legal technology and the web for more than 20 years, primarily through his blog LawSites.com. Former editor-in-chief of several legal newspapers, he is a fellow of the College of Law Practice Management and an inaugural Fastcase 50 honoree. He can be reached by email at ambrogi@gmail.com, and you can follow him on Twitter (@BobAmbrogi).

Kent Brockman: Professor, without knowing precisely what the danger is, would you say it’s time for our viewers to crack each other’s heads open and feast on the goo inside?
Professor: Yes I would, Kent.

In the above passage from The Simpsons, feel free to replace beloved Channel 6 anchor Kent Brockman with “Citi Private Bank Law Firm Group” and the professor with “the leaders of the major law firms.” It’s that time of year for Citi Private Bank to release the results of its law firm management confidence survey. Last year, like most years, confidence levels were thoroughly middling, with management fairly confident that the economy would putter meekly forward. Lawyers aren’t known for unbridled optimism, but this year’s results, even judging on an attorney’s curve, are a lot more gloomy.

From the executive summary of the Law Firm Confidence Index, we see that “confidence in the US economy dipped significantly below neutral, while projections for global economic growth continued to dip even further.” Law firms continue to see demand improvements, though expectations were moderated. But law firm demand usually enjoys a slight uptick when the bottom falls out of the economy so that’s not exactly encouraging.

They are also less optimistic that pricing pressure will abate and expect a deceleration in revenue and net income growth. Despite a more modest outlook for the first half of 2020, law firm leaders plan to accelerate headcount growth.

Revenue down… headcount up. At least until the mad dash to cover bankruptcies and emergency mergers starts to die down and the firm is left to consider exactly how many of these heads they want to keep counting every day. There could be some bumpy times ahead folks.

Earlier: Law Firm Leaders Are Completely Confident That They Don’t Have Much Confidence

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.