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Apr 2, 2012

Patent litigator John Desmarais raised eyebrows when he left Kirkland & Ellis two years ago to start a firm that—unlike most large firms—would be game to take on plaintiffs-side work for nonpracticing entities (NPEs), less flatteringly called patent trolls. But he appears to have sparked a trend. At least three more patent litigation boutiques with a similar strategy have since arrived on the scene. Tensegrity Law Group; Freitas Tseng Baik & Kaufman; and Feinberg Day Alberti & Thompson are each staffed by defectors from large firms seizing what they see as a tantalizing opportunity to bring lucrative patent claims on contingency—in some cases for NPEs. 

Other patent litigators may follow suit, predicts Mark Lemley, the director of Stanford Law School's program in law, science, and technology. "We are seeing more and more people moving in this direction," Lemley says. 

Recent years have seen the emergence of a "robust secondary and tertiary market for patent sales and acquisitions and enforcement," says Matthew Powers, a former cochairman of the 500-lawyer litigation department at Weil, Gotshal & Manges. (Just how robust was demonstrated by one of the landmark deals of 2011, the $4.5 billion sale of Nortel Networks Corporation's patent portfolio to a consortium of technology companies.) Demand has increased for litigators who will represent patent holders itchy to monetize their intellectual property by court action. Butclient conflicts and fee constraints bar litigators at many large firms from such work, Powers says. The new boutique start-ups allow their litigators greater flexibility in picking clients, arranging contingency fees, and even securing patent ownership for themselves.

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Posted: Apr 2, 2012 5:41pm


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Dagmar Irvine
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