Patexia Insight 189: Top Law Firms in ITC Section 337 Investigations 2023
In late February, we unveiled our highly-anticipated fourth annual ITC Intelligence Report 2023, illuminating the intricate world of ITC Section 337 investigations. This comprehensive report offers an in-depth analysis of the latest statistics and trends within the ITC Section 337 Investigations landscape. Beyond the data, we provide invaluable insights by ranking all entities involved in these investigations based on their activity and performance. We categorize them according to their roles in an investigation, distinguishing between complainants, respondents, and providing an overall assessment. As part of our ongoing coverage, we've already shone a spotlight on the legal domain, featuring some of the most active and best-performing attorneys in Patexia 180, as well as companies in Patexia 188. This week's insight will be dedicated to uncovering some of the top law firms in ITC Section 337 Investigations, earning their mention for either high activity or distinguished performance.
During the period of our study, from January 1, 2017, to December 31, 2022, a total of 416 ITC Section 337 investigations were filed, with 326 of them classified as violation investigations. As seen in the above chart, the yearly investigations dropped from 76 in 2017 to 59 in 2018 and 2019 but have increased ever since, reaching a total of 78 investigations in 2022. Meanwhile, early data for the first half of 2023 shows that there were a total of 24 investigations filed. Our case-by-case analysis reveals a substantial network of participants engaged in one or more of these investigations. A total of 1,927 companies, aiming to protect their interests and intellectual property rights, actively participated in these legal proceedings, which subsequently led to the engagement of 386 law firms and 4,768 attorneys who contributed their expertise to these investigations.
Out of the 386 law firms, a significant majority of 306 were engaged to represent respondents in one or more investigations, while an equally noteworthy 200 firms were dedicated to representing the interests of complainants. Some firms were active on both sides. In the following table, you'll find a list of some of the very best law firms, ranked in the top 100, along with their total investigations, rank, and the respective category in which they achieved their ranking. This places these law firms in the top 25 percentile.
|
Law Firm |
All Investigations |
Category |
Rank |
|---|---|---|---|
|
46 |
Complainant Performance Rank |
1 |
|
|
32 |
Respondent Performance Rank |
1 |
|
|
39 |
Overall Performance Rank |
2 |
|
|
17 |
Complainant Activity Rank |
4 |
|
|
15 |
Complainant Performance Rank |
7 |
|
|
8 |
Complainant Performance Rank |
10 |
|
|
20 |
Respondent Activity Rank |
15 |
|
|
13 |
Complainant Activity Rank |
17 |
|
|
17 |
Respondent Activity Rank |
20 |
|
|
10 |
Complainant Performance Rank |
22 |
|
|
17 |
Respondent Activity Rank |
24 |
|
|
3 |
Complainant Activity Rank |
24 |
|
|
17 |
Respondent Performance Rank |
24 |
|
|
5 |
Complainant Performance Rank |
45 |
|
|
7 |
Respondent Performance Rank |
56 |
|
|
5 |
Complainant Performance Rank |
73 |
Our upcoming ITC Intelligence Report 2024 is on the horizon, with a release scheduled for February 2024. This report is packed with an array of updated statistics covering diverse areas, ranging from filing trends, unfair acts, case statuses, and investigation outcomes to the rate of appeals in the Federal Circuit, the average investigation duration, and the most frequently litigated technologies, among other critical factors. Moreover, just as in previous editions, our report will encompass comprehensive rankings for all stakeholders involved in ITC Section 337 investigations. This includes attorneys, companies, law firms, and judges, categorized by their activity and performance. Don't miss out on the opportunity to pre-order your copy of the report and take advantage of a special discount here.
RANKING METHODOLOGY
Over time, our ranking methodology has evolved as we consult and receive feedback from our active IP community. We've gained a deeper understanding of the complexities within each IP practice area and what sets one practice apart from another. This year, we've significantly improved our ranking methodology to better account for the various factors that influence the outcomes of ITC Section 337 investigations. The success of an investigation depends on numerous variables, including the complainant, the mix of all respondents and their collaboration, the Administrative Law Judge, related products, patents, attorneys representing each side, and testifying experts, among many other factors. To accurately assess the success of an individual, such as an attorney or expert, we need to evaluate their performance independently of these other factors. Therefore, in our latest report, we've introduced a regression analysis model that allows us to mathematically calculate the influence of each variable on an individual's success or failure. Applying this regression analysis to our data, we can isolate the impact of each variable, effectively decoupling an individual's performance from other factors.
In assessing the Activity Score, we've shifted from a simple case count to a more nuanced, weighted approach. This modification recognizes that recent cases offer a more accurate gauge of a law firm, attorney, or company's current activity level. We achieve this by employing a weighted function that discounts the significance of older cases, emphasizing the importance of ongoing engagements. This adjustment is essential to identify potential slowdowns or changes within the entity. We then normalize the activity score to a scale of 0 to 100 for simplicity and consistency with other metrics. To bridge score variations, we calculate them logarithmically before scaling them to 100, ensuring uniformity alongside success and performance scores.
When calculating the Success Score, we recognize that terminated ITC investigations can yield different outcomes for respondents, even within the same case. Instead of assigning all respondents the same score for a single ITC case, our scoring methodology takes these diverse respondent outcomes into account. Moreover, some respondents exit the case before a 337 decision due to reasons like withdrawal, settlement, or consent order, while others remain until a 337 decision is rendered (no violation, violation with settlement, or violation leading to exclusion orders). There are also cases where respondents default or are never served, which are factors deserving consideration in the scoring.
In the table below, we outline how each of these outcomes is factored into the scores allocated to the parties and their representatives.
|
Outcome |
Complainant |
Respondent |
Comp. Atty/Firm |
Resp. Atty/Firm |
|
No Violation |
0 |
1 |
0 |
1 |
|
Withdrawn |
0.25 |
0.75 |
0.25 |
0.75 |
|
Settlement |
0.5 |
0.5 |
0.5 |
0.5 |
|
Consent Order |
0.75 |
0.25 |
0.75 |
0.25 |
|
Violation, Settlement |
0.75 |
0.25 |
0.75 |
0.25 |
|
Violation, LEO/GEO/CDO |
1 |
0 |
1 |
0 |
|
Default |
1 |
0 |
- |
- |
|
Not served |
- |
- |
- |
- |
The Performance Score, featured in many of our IP reports, is a weighted average of Success and Activity scores. This method effectively identifies attorneys and law firms with both high activity and a strong success rate in ITC Section 337 Investigations, showcasing their experience and effectiveness. To ensure fair comparisons between entities with varying workloads, the Performance Score considers both activity and success, ensuring accurate rankings and scores for companies, attorneys, and law firms.
Stay tuned, as in the upcoming weeks, we will be publishing fresh insights from our CAFC Intelligence 2023 Report, set to be released on Thursday. We'll also continue to cover some of the best entities in patent and trademark prosecution, as well as ANDA litigation.