Venable's intellectual property litigators work as a team to provide comprehensive solutions to technology disputes. In this Q&A, partners Manny Caixeiro and Elizabeth Manno talk about the approaches and experience required to effectively handle modern technology and intellectual property disputes.
How do contemporary technology litigators differ from intellectual property lawyers of the past?
Manny: Technology disputes are, first and foremost, business disputes, with years of investment—not just in R&D and product development, but also in marketing, sales, and financial strategies—at stake. This is true regardless of whether the dispute presents as patent infringement, trade secret misappropriation, copyright infringement, or a breach of contract. So, a modern technology litigator needs to understand what success looks like for the client's business and then develop and execute litigation strategies that help the client achieve its desired business outcome. This involves more than just solving a technological puzzle; it requires lawyers to really know their clients' business inside and out—and to see the big picture from the same perspective as the client.
What skills and experience does the modern technology litigator need?
Elizabeth: What matters most is the ability of counsel to diagnose early the variety of issues that will be involved in a dispute, and to assemble the right team of complementary attorneys who fit together to engage with the client and address the holistic problem. The collective skill set of the team is the key, rather than skills of any individual attorney. Having a team with a diversity of backgrounds and viewpoints allows us to assemble the optimal team to develop and execute individualized strategies for each case. Sometimes, a deep non-infringement analysis will carry the day. Other times, the resolution will depend on design-around capability. In some disputes, licensing and economic expertise will be far more important than any technological issue. Still other disputes will go to trial—which is happening more frequently—and that requires its own skill set, too. Following the same playbook for every case is an outdated and ineffective way to approach technology disputes.
Can you give an example of how your approach to technology disputes can lead to a better outcome than traditional approaches?
Elizabeth: We often represent clients who face complex IP assertion campaigns involving the assertion of dozens of patents in a portfolio. A traditional way of looking at the dispute might lead to narrowly focusing on noninfringement or invalidity arguments for particular patents, and attempting to drive down a licensing demand based on those technological arguments. While those analyses are important and need to be performed, a myopic focus on these arguments alone can lead to an unsatisfactory result.
Manny: I agree, and there are a few reasons for that. First, when the asserted portfolio contains numerous patents, arguments based on a few of them may not move the needle in a negotiation or litigation. And it may be cost-prohibitive to make arguments for the entire portfolio, especially in the context of a pre-litigation negotiation. Second, a litigation strategy that depends on winning noninfringement of all asserted patents puts an unrealistic amount of reliance on a judge or jury to side with you on every technological argument. And last, many clients are facing technology disputes with multiple entities—and the outcome of one can influence the outcome of another. Clients are seeking comprehensive strategies that consider the full universe of technology matters, not just guidance on how to resolve a specific matter in isolation. In fact, if you don't have a holistic approach, there is a risk that a strategy implemented in one matter could harm the client in another.
What about the business of law—how should technology litigators approach the financial aspect of engagements?
Elizabeth: Being the best team for a client involves more than just doing a good job on the substance; it means delivering the result at an appropriate and efficient price point. Technology litigation is often expensive, so if we can resolve a dispute short of litigation, we will. Attorneys seeking to maximize short-term profits above long-term client partnerships are pursuing an outdated approach. We aspire to help clients understand what expenses will be incurred, why, and the pros and cons of other alternatives. Any contemporary litigator needs to be fluent with alternative fee arrangements and creative in how they might apply in each case.
Looking toward the future, what trends in technology litigation are on the horizon?
Manny: A major driving force behind contemporary technology litigation is the rise of litigation funding. And there doesn't seem to be an end in sight, which means several things. The days of quick-hit, small settlement technology trolls are coming to an end, so technology lawyers need to have the skill to take cases deep into litigation and, often, to trial. And clients on both sides of the "v" need to be educated about litigation funding. As a plaintiff, if your client doesn't understand the funding possibilities, they may be missing out on a beneficial relationship that can offset risks and enhance overall recoveries. As a defendant, they may misunderstand the nature of their opponent, the forces and motivations driving a plaintiff, how these funding agreements may affect the outcome of the case, and the incentives and opportunity for resolving disputes.
Learn more about Venable's Intellectual Property Litigation Practice.