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Meet the new model patent litigator

The emergence of multinational patent disputes demands new skills from patent litigators. What impact will this have on the IP profession?

MIP February 2015 coverWe’re all familiar with the stereotypical litigator: confident, bold, flamboyant. They’re as common in IP as in other fields of law, and I’m sure readers will be able to name some examples close to home (some might even raise their own hands at this point).

Such qualities are clearly necessary for success in many trials, particularly where oral evidence and cross-examination are important, and especially in the US where there are juries.

But, speaking to litigators around the world for the cover story on multinational patent disputes in our February issue (now live online – subscription or free trial required) I was struck by how often they talked about coordination, understanding and adaptability – the kind of soft skills not often associated with litigators.

More than one told me, in effect: “You have to suppress your ego in these kinds of cases.” You may not be able to pursue the points you want, or even bring an action where you want to, if it is not in the clients’ worldwide interest to do so.

Instead, the key to success is often based on sitting in conference calls and listening to updates from other jurisdictions, and being willing to adapt your strategy in the light of what is happening elsewhere.

Researching the article, we spoke to experienced litigators around the world, from firms such as Bird & Bird, Fish & Richardson, Hogan Lovells, Kim & Chang, Kirkland & Ellis, Quinn Emanuel, WilmerHale and Wragge Lawrence Graham & Co. We also interviewed in-house counsel at ARM, Huawei and Nokia about their approaches to multinational litigation.

All agreed that multinational patent disputes are becoming more common, thanks to globalisation, litigation strategy and competition between lawyers (and judges) in different jurisdictions, as well as the emergence of new battlefronts, such as the IPR proceedings in the US and hearings before competition authorities in some countries.

The Apple v Samsung litigation (now settled outside of the US) was perhaps the most high-profile example of multinational litigation, though Microsoft v Motorola and other disputes in the smartphone sector may yet eclipse it. But other industries also see disputes that span several jurisdictions, and judges seem to be increasingly conscious of the global nature of disputes (for an example, see the ruling in the Australian litigation over Myriad’s patent).

If this trend continues, and litigators have to focus more on cooperation, coordination and managing teams, will that change the way they work, how they gain experience and even the type of people that are attracted to specialise in this field? On the IP Kat blog yesterday, Jeremy Phillips asked what the typical patent practitioner will look like in 20 years’ time. In litigation, at least, the future could be quite different from the past.

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