Patexia Insight 98: Top Patent Litigation Attorneys of 2021
Earlier this year, we reviewed the sharp increase in patent litigation in 2020 (Patexia Insight 96). District Court patent cases rose 17 percent in 2020 compared to 2019 (excluding ANDA cases). This trend seems to continue in 2021 as filing activity in January of 2021 was 10 percent higher than the same period last year. The entire sector will benefit from this market expansion.
This week, we plan to look at some of the best performing and most active patent litigators of 2021. Our assessment is based on our 2021 Patent Litigation Intelligence Report, released last month.
In our inaugural Patent Litigation Intelligence Report, we evaluated the district court patent cases filed between July 1, 2017, and June 30, 2020. During this 3-year period, a total of 10,552 patent cases were filed. In total, 11,786 companies were named either defendants or plaintiffs and were represented by a total of 12,780 attorneys and 2,841 law firms.
We measured the activity and performance of all stakeholders including plaintiffs, defendants, attorneys, and law firms in the following six categories:
- Best Performing Overall
- Best Performing Plaintiffs
- Best Performing Defendants
- Most Active Overall
- Most Active Plaintiffs
- Most Active Defendants
Although activity often is measured by the number of cases, we decided to also consider the number of patents. This is because the complexity and workload often grow somewhat linearly with the number of patents involved. In addition, post-AIA, sometimes plaintiffs file several cases (and sometimes hundreds of cases) if they are dealing with multiple defendants. This increases the case count but the workload often does not go up with the same pace.
Activity = Weighted Average of Number of Cases and Unique Patents
To calculate the performance, we combined the activity and success for all the stakeholders. This is because corporate inhouse counsel usually look for good experience which is a combination of activity and success. An attorney with lots of unsuccessful cases is not considered the best despite all the experience and similarly, an attorney with a single successful case is not considered the best attorney either.
Performance = Weighted Average of Activity and Success
To measure the success, we only evaluated the terminated cases. At the time of preparing the report, we counted a total of 5,998 terminated cases for the 3-year period of the study. The following table summarizes our methodology for success measurement:
| Outcome | Plaintiff | Defendant | Plain. Atty/Firm | Def. Atty/Firm |
|---|---|---|---|---|
| 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 |
| 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 |
To improve our evaluation further, especially for the settled cases, which often have confidential terms, we tried to use any other sources to help our assessment. For example, we decided to use the IPR decisions to gain some insights about the case.
As shown in the above table, for the dismissed-settled cases, we looked at the outcome of the parallel IPRs (if any) to figure out what drove the parties to the negotiation table and which side most likely had the upper hand in negotiations.
Finally, we identified the local counsel and created a separate section to cover firms and attorneys who mainly acted as local counsel. Some jurisdictions and states are very active and this additional list helps our clients to identify the most experienced local counsel for their next case.
The following is a list of some of the Best Performing or Most Active attorneys who were ranked in the top 25 in one of the six categories explained above. Being named among the top 25 out of 12,780 attorneys means the attorney is in the top 0.2 percentile in the respective category:
| Attorney | Law Firm | All Cases | Ranked Category | Rank |
|---|---|---|---|---|
| Ryan K Yagura | O'Melveny & Myers | 27 | Best Performing Overall | 1 |
| David Hadden | Fenwick & West | 89 | Best Performing (Defendant) | 1 |
| Michael B Eisenberg | Holland & Knight | 17 | Best Performing (Plaintiff) | 1 |
| Stamatios Stamoulis | Stamoulis & Weinblatt | 715 | Most Active (Plaintiff) | 1 |
| Lowell D. Mead | Cooley LLP | 26 | Best Performing Overall | 2 |
| Scott L. Watson | Quinn Emanuel | 9 | Best Performing (Plaintiff) | 3 |
| Benjamin Hershkowitz | Gibson Dunn | 11 | Best Performing Overall | 4 |
| Gregory C. Proctor | Kramer Levin | 6 | Best Performing (Plaintiff) | 4 |
| Marc A. Fenster | Russ August | 235 | Most Active (Overall) | 5 |
| Daralyn J. Durie | Durie Tangri | 28 | Best Performing (Defendant) | 5 |
| Alan M. Fisch | Fisch Sigler | 11 | Best Performing Overall | 7 |
| Reza Mirzaie | Russ August | 192 | Most Active (Overall) | 7 |
| Jordan R. Jaffe | Quinn Emanuel | 9 | Best Performing Overall | 12 |
| Aaron Jacobs | Prince Lobel Tye | 202 | Most Active (Plaintiff) | 15 |
| Michael Pieja | Goldman Ismail | 38 | Best Performing (Defendant) | 16 |
| Charles K. Verhoeven | Quinn Emanuel | 9 | Best Performing Overall | 19 |
| Josh A. Krevitt | Gibson Dunn | 18 | Most Active (Defendant) | 20 |
| Edward R. Nelson III | Nelson Bumgardner | 156 | Most Active (Plaintiff) | 20 |
| John M Desmarais | Desmarais LLP | 37 | Best Performing (Plaintiff) | 23 |
| Travis M. Jensen | Orrick, Herrington | 16 | Best Performing (Defendant) | 25 |
The complete report is now available online and can be downloaded for free by Patexia Concierge Members. If your firm or company is not a member of our Concierge Program, you can still order a copy for your organization directly from our website. The report also comes with an Excel file that covers the top 1000 most active attorneys, law firms, companies and judges with all their metrics and their top 3 clients (or firms) they represented (or represented by).
In the following weeks, we plan to continue the coverage of the most active and best-performing firms and companies in patent litigation and ITC. We also plan to take a closer look at the patent prosecution and assess the current market and impact of the pandemic on corporate IP spending. Stay tuned!