IP Litigation Looks Bright

Tomorrow we will be reporting on data from Peer Monitor’s Q4 2011 Peer Monitor Index (PMI), and the picture is dim.  Productivity and demand both fell to 12-month lows, due in large part to sluggish demand for transactional work and increases in lawyer headcounts.  But there is a bright spot.  Despite negative trends in both the legal market and the broader economy, intellectual property is actually seeing significant growth.  Demand for IP litigation was up 6.2% for 2011, including a 1.6% increase in December.

Within the AmLaw 100 and AmLaw 200 segments, the numbers are even more interesting. AmLaw 100 firms saw the biggest boost in IP litigation in 2011, with a strong 6.9% increase.  The AmLaw 100 also saw gains in IP patent work, which was up 6.2% in 2011.  Meanwhile, the AmLaw 200’s IP litigation numbers were more stagnant – up just .8% for the year.  At the same time, the AmLaw 200 posted impressive gains in IP patent work, with a 7% increase over all of 2011 (including a 6.2% increase in December.

What’s driving IP litigation and patent work up when so many other legal sectors are seeing declines?  The rising stakes of competitive technologies are one factor.  In a recent article on the biggest IP litigation wins of 2011, Corporate Counsel cites the struggle between two technology powerhouses for helping to fuel the fire:

Another recession-proof phenomenon is Apple Inc., known lately for must-have mobile gadgets—and now, apparently, for employing legions of IP lawyers in its battle to take down Google Inc.’s Android operating system.

These sorts of battles of equals are changing the patent landscape, raising the stakes and thus the amount of money companies are willing to invest in IP litigation.  Brian Busey of Morrison Foerster, whose clients include Toshiba and Sharp, explains in a new article in Inside Counsel:

A couple of years ago, we were fending off trolls, but now it seems like we’re doing global warfare for competitors… Trolls haven’t gone away, but now at the same time companies have to manage larger litigation involving competitors, and it’s gone global.

It’s been a boon for IP litigation departments across the board.  Companies must now combat IP threats at multiple levels, from the patent trolls that result in multiple, nearly identical cases in several jurisdictions, to high stakes patent lawsuits against market equals.  And as Inside Counsel points out, IP litigation has indeed “gone global,” with the International Trade Commission initiating a record number of new investigations in 2011.  The result is more opportunities for more firms, a rarity in our current economic environment.

Posted by Emily Fisher