Patexia Insight 51: David vs. Goliath, Outperforming AM LAW 100
Two weeks ago, we released the list of Best Performing law firms in IPR. We also identified couple of firms with less than 10 attorneys, which had outperformed AM Law 100 firms. These firms were ranked by Patexia in the top 10 in our 2017 Best Performing firms out of more than 1,000 firms. For the study, we had covered 6,580 IPR challenges, filed from the beginning through the end of Q2 in 2017. We decided to dive deeper and learn about these firms, look at their cases, and find the reasons behind their success.
One of these firms which was ranked 6th in Patexia’s 2017 Best Performing Firms representing patent owners in IPR was Lowenstein & Weatherwax LLP, based in Los Angeles, California. The firm has two partners, Nathan Lowenstein & Kenneth Weatherwax, with five attorneys who are of counsel. Both partners and four of counsels were previously at Irell & Manella, a top Los Angeles-based patent litigation firm, before Lowenstein & Weatherwax was founded in 2012. The firm has been lead counsel in 77 PTAB cases in our dataset, including 64 IPR and 13 CBM through the end of 2017. In all 77 cases, they represented the patent owners.
Here is a summary of Lowenstein & Weatherwax PTAB work:
|
Lowenstein & Weatherwax |
Stats |
|---|---|
| Attorneys |
Partners (2), Of Counsels (5) |
| Cases | 77 |
| Type | IPR (64), CBM (13) |
| Role (Represent) | PO (77), Petitioner (0) |
| Patents |
41 |
| Clients | PO (14), Petitioner (0) |
| Opponents | PO (0), Petitioner (39) |
| Opponent's Law Firms | PO (0), Petitioner (28) |
The firm was ranked 6th in Patexia’s 2017 Best Performing Firms representing patent owners among more than 1,000 law firms. We reported its performance at 74 percent for a total of 60 IPR cases filed through the end of Q2 of 2017.
We explained in our earlier studies that, based on Patexia’s performance model, it is much more difficult to score as a representative of the patent owner. That is because we assume the patent owner loses when the case is settled. This modeling is based on feedback we received from a number of patent owners. We also assume petitioner wins even if only one claim gets invalidated through the process. While we will change this in our future models and instead, we will look at the ratio of invalidation to total number of challenged claims, this assumption was based on a number of cases where the key claim asserted in a district court case was invalidated in IPR and after that, the patent owner had no desire to pursue the case for the remaining surviving claims.
The following chart shows the current status of Lowenstein & Weatherwax PTAB cases. As of February 2018, 54 out of 77 cases have been denied while 12 have been settled.
We have seen that oftentimes some firms’ activity score may go up because of their involvement in many IPR petitions covering only a handful of patents. For example, in the Zond case we reported on previously, 125 IPR challenges were filed to only cover 10 patents. In contrast, in the case of Lowenstein & Weatherwax, the firm has been involved in defending 41 unique patents. Also, in terms of clients, these patents were owned by 14 different entities and had generally different subject matter.
It is impressive to see the type of opponents this small firm has had for these 77 cases. As our study shows, patent owners in IPR are commonly smaller companies defending their patent rights against larger corporations. Given the financial power of larger corporations, IPR petitioners tend to hire their counsel from top AM Law 100 firms. In Lowenstein & Weatherwax’s cases, the firm has defended the 14 patent owners against 39 petitioners who have been mostly large corporations such as Google, Facebook, Intel, Comcast, JP Morgan Chase, American Express, and many more. These companies were represented by 28 law firms including AM Law 100 firms such as Kirkland & Ellis, White & Case, WilmerHale, Cooley, Quinn Emanuel, Wilson Sonsini, Ropes & Gray and many more.
We had an opportunity to sit down with the partners of the firm, Nate and Ken, to find out more about the reasons behind their good performance. First, we learned that both partners are involved in all cases. Unlike most large firms where a majority of the work is done by associates and partners mainly manage the relationship with the client, here both partners get into details of every single case. Moreover, all attorneys involved in their current PTAB practice have over a decade of experience in patent litigation and had formerly practiced at the well-known firm Irell & Manella.
“Invariably, we find ourselves up against a very large company represented by a very large, expensive and respected law firm. While we are a small firm, we never feel outmatched. These are the same types of companies and firms we have litigated against our entire careers. At Irell we learned from some of the best lawyers in the country. Our small size allows for unparalleled quality control, and our entire focus is on winning cases. Our ethos is to never be outlawyered,” said Nate Lowenstein. Ken added, “While we wish we could win every single case, we’re proud of our record, which we think Patexia’s analysis in some ways understates. By our count, there are only two cases out of these 77 where at least one claim asserted in parallel litigation has not been preserved. Many of our settled cases have resulted in our client securing a favorable license agreement for its patents. We try to do our best work in every case and we believe our track record speaks for itself.”
As to why they are able to win with such consistency, Nate remarked, “the secret to winning before the PTAB is to understand why you might lose, and to put forward the best, most persuasive arguments in light of that understanding.” Ken added: “We put a tremendous amount of effort into each case. There’s no cookie-cutter approach. Each case is unique.”
In the following weeks, we plan to continue our investigation into some of the less known and smaller firms, outperforming the AM Law 100 in our analysis. We will also review the current state of IP market, the largest firms in terms of registered patent practitioners and fastest growing IP firms as well as the ones that are falling behind. If you have any questions, comments, or suggestions, please don’t hesitate to get in touch.