Patexia Insight 187: Top Patent Litigation Firms of 2023

We released our third Patent Litigation Intelligence Report in late January, analyzing the district courts' patent litigation landscape using data from a five-year period spanning July 1, 2017, to June 30, 2022. In addition to providing various high-level statistics, including filing activity, the most popular states and districts, outcome analysis, case lengths, and the most litigated IPC codes and patents, the report also evaluates all stakeholders participating in patent litigation, ranking them based on activity and performance. Having already covered some of the most active and best-performing companies as well as the best-performing attorneys in previous insights, this week we will publish some of the very top law firms that achieved high results in activity or performance across overall, defendant, or plaintiff categories.

According to our data, patent litigation experienced an 8.8% decline in 2018 but has been increasing since 2019. Over the past six years, the number of cases peaked at 3,953 in 2021, representing a slight increase of 0.4% from the previous year. Although the increase was modest, it is significant compared to the levels of patent litigation observed in 2019 and 2018. There were 3,766 cases filed in 2022, which represents a slight decline from 2021 but remains higher than pre-2020 levels. Meanwhile, our latest data for the first half of 2023 show that a total of 1,448 cases involving 1,533 patents were filed.

During the period covered by the Patent Litigation Intelligence Report 2023, between July 1, 2017, and June 30, 2022, a total of 18,493 cases were filed involving 1,322 district court judges and 20,065 companies acting as plaintiffs, defendants, or both. They were represented by 17,052 attorneys (including local counsel) who worked for 3,608 law firms. Our analysis found that 2,469 firms represented plaintiffs and 2,365 firms represented defendants, with some firms
appearing on both sides in different cases. The data indicate that a small number of firms were highly active, resulting in a significant percentage of all cases being handled by a few firms. By using the number of cases in which a law firm appeared, as well as the ultimate outcome of those cases, we evaluated all entities, including law firms, by their activity and performance according to the ranking methodology explained further below.

Based on our 2023 Patent Litigation Intelligence Report, the following table displays some of the most active and best-performing law firms in patent litigation. To be included in the top 200 out of a total of 3,608 firms indicates that the firm ranks within the top five percentile for their respective category.

 

Law Firm	All Cases	Category	Rank
Fenwick & West LLP	308	Defendant Performance Rank	1
Perkins Coie	426	Defendant Activity Rank	3
Cooley LLP	197	Defendant Performance Rank	5
McKool Smith	262	Plaintiff Activity Rank	8
Alston & Bird	229	Defendant Performance Rank	13
Erise IP P.A.	86	Defendant Performance Rank	14
Greenberg Traurig LLP	240	Defendant Activity Rank	14
Kilpatrick Townsend & Stockton	234	Overall Activity Rank	19
Sterne, Kessler, Goldstein & Fox	88	Plaintiff Performance Rank	19
Polsinelli	135	Plaintiff Performance Rank	22
Wilson Sonsini Goodrich & Rosati	116	Defendant Performance Rank	23
Ropes & Gray LLP	88	Defendant Performance Rank	28
Hill, Kertscher & Wharton, LLP	62	Plaintiff Performance Rank	34
Desmarais LLP	129	Plaintiff Activity Rank	37
Haynes and Boone, LLP	120	Plaintiff Performance Rank	38
Kramer Levin Naftalis & Frankel	71	Plaintiff Activity Rank	39
Carter Arnett	102	Plaintiff Activity Rank	45
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.	114	Plaintiff Activity Rank	58
Wolf, Greenfield & Sacks	56	Defendant Activity Rank	75
Goldberg Segalla LLP	39	Plaintiff Activity Rank	95
McAndrews, Held & Malloy	41	Plaintiff Activity Rank	131
Hankin Patent Law	26	Plaintiff Performance Rank	140

 

The full Patent Litigation Intelligence Report provides full rankings of activity and performance in all categories for the top 1,000 most active law firms, as well as additional data such as their top three clients. Furthermore, the report covers rankings of attorneys, companies, and judges. In addition, it delves deeper into an analysis of high-level statistics, including filing trends, case outcomes, appealed cases, time from filing to termination, and the most litigated IPC codes and patents.

RANKING METHODOLOGY

As with previous reports, and as we have gained more experience and received feedback from our legal community, our ranking methodologies and formulas continue to be evaluated, surveyed, and improved with each report. This has resulted in several new improvements in scoring and ranking for this new report.

In several cases, we have noticed that a single plaintiff with a relatively small number of patents may initiate lawsuits against numerous companies. Though a higher number of defendants usually means more work for the plaintiff, the workload does not increase in proportion to the number of cases filed with the same patents. On the other hand, the number of patents implicated in a case directly impacts the amount of work that each party or their representatives must handle. Therefore, we factor in both the number of cases and the number of patents involved in litigation when calculating the Activity Score. Furthermore, we assigned a slightly higher weight to more recent cases (i.e., weighting = 1.0 for 2022 cases, 0.98 for 2021 cases, 0.96 for 2020 cases, 0.94 for 2019 cases, etc.). This method has proven effective in assessing activity since some law firms may have been more active in previous years than the current year, whereas another firm with the same number of cases may have been more active recently, resulting in a higher ranking than the former. The activity ranking for this year was improved by implementing a logarithmic scale to calculate the activity score instead of a linear scale. This addresses the issue of large disparities in scores between consecutive firms or attorneys, as a linear scale assigns scores based on a direct proportion to the value being measured. However, in patent litigation, the number of cases filed can vary greatly, resulting in large gaps in scores between firms. A logarithmic scale assigns scores based on the logarithm of the value being measured, reducing the difference in scores between firms as the number of cases increases. This provides a more accurate representation of activity level, allowing for a fairer and more accurate ranking of firms and attorneys in patent litigation.

Despite the variety of PACER statuses for patent cases filed between July 1, 2017, and June 30, 2022, our analysis found that they do not consistently indicate the practical outcome of the case or which party benefited the most. To ensure a fair and consistent scoring system, we manually reviewed case decisions for several PACER statuses and reclassified and subdivided outcomes into our own system that more accurately represents the case's practical outcome for all stakeholders. The scoring system we developed from these efforts, with input from our valued legal community, is shown in the table below:

 

 

Outcome	Plaintiff	Defendant	Plain. Atty/Firm	Def. Atty/Firm
Dismissed - Settled (IPR, settled post-Institution, pre-trial)	0.25	0.75	0.25	0.75
Dismissed - Settled (IPR, < 50% claims survive)	0.25	0.75	0.25	0.75
Dismissed - Settled (IPR, > 50% claims survive)	0.75	0.25	0.75	0.25
Dismissed - Other	0	1	0	1
Judgment - Defendant Wins	0	1	0	1
Judgment - Plaintiff Wins	1	0	1	0
Judgment - Plaintiff + Settlement	0.75	0.25	0.75	0.25
Judgment - Settlement (Confidential)	0.5	0.5	0.5	0.5
Judgment - Dismissed, no Jurisdiction	0	1	0	1
Judgment - Voluntarily Dismissed by Party(ies)	0.25	0.75	0.25	0.75
Dismissed - Voluntarily	0	1	0	1
Dismissed - Settled (no IPR petition)	0.5	0.5	0.5	0.5
Dismissed - Settled (IPR denied)	0.75	0.25	0.75	0.25
Dismissed - Settled (IPR, settled pre-Institution)	0.25	0.75	0.25	0.75

 

To provide a more accurate calculation of Success Score, our method now takes into account the probability of winning all cases, rather than simply averaging the success rate. This adjustment considers the total activity level of an entity, as it is generally more challenging for a larger entity to win every case. Our calculation method now includes not only the number of cases won but also the probability of winning all cases, acknowledging the difficulty of winning every case, particularly for entities with a high number of cases.

As high activity levels can lower success rates over time, it becomes not ideal to compare the success scores of firms or attorneys with different workloads. To address this, we introduced the Performance Score, which combines both activity and success scores in a weighted average. This approach allows us to identify law firms and attorneys that exhibit high levels of activity and success rates in litigating District Court patent cases. Essentially, it highlights entities that possess both experience and success in this field.

Stay tuned as we will begin covering the top stakeholders mentioned in our ITC Section 337 Intelligence Report released back in February.