The Supreme Court may be the “highest court in the country,” but the final stop for many patent, veterans, tax, and various other categories of claims is often the federal appeals court. The Federal Circuit is a specialized nationwide appeal body that negotiates cases based on claim type rather than geographic appeal. In order to survive in this area, some companies have developed niche practices that often compete for the highest workforce. There is a divide between firms focused on running top cases in this mostly Federal Circuit usurped technological area, between boutique firms that focus solely on patent law and large firms that specialize in such cases .
In the past year, the Federal Circuit issued over 850 statements and orders on cases. Rather than looking at all of the firms that have practiced on the Federal Circuit for the past year, I have applied this analysis to some of the top competing firms in that court. Fortunately, The Vault gives ratings by area of exercise. According to their rankingare the top 10 intellectual property law firms in 2021 Fish & Richardson, Finnegan Henderson, Quinn Emanuel, Kirkland & Ellis, Morrison & Foerster, Cooley, WilmerHale, Wilson Sonsini, Fenwick & West, and Knobbe Martens.
Just as there is no easy way to rank the top 10 companies in this space, neither is it easy to evaluate their relative success. To that end, I’ve examined their clear successes in cases before the Federal Circuit over the past year (March 10, 2020 to March 10, 2021). This left the following number of decisions per company.
Along with their involvement in cases on the matter, Quinn Emanuel, Fish & Richardson and Finnegan Henderson each wrote an amicus letter in one case before the Federal Circuit last year (Fish & Richardson in Immunex Corporation v Sandoz Inc.., Finnegan Henderson in Eusebio v. McDonoughand Quinn Emanuel in Sanford Health Plan v United States) that was listed on a decision.
31 of the decisions for these companies were not signed or by curiam. The vast majority of these decisions were summary affirmations. The next graph shows the number of opinions signed by the various Federal Circuit justices for these majority decisions.
Obviously, there are significant differences in the number of opinions drafted by these judges, ranging from 13 at the high end to two at the low end. Some of the judges also issued second opinions in these cases. Judge Newman had five secondary opinions, Judge Reyna had two, and Judges Prost, Dyk, and Moore each had one.
I have removed all non-final interlocutory decisions and all decisions that did not dictate a clear victorious party. However, the decision on the victorious party was not always as simple as the decision of the court. The case McRO, Inc. v Bandai Namco Games America Inc. The inclusion of WilmerHale is an example of where the court has not determined a clear winner. The court’s decision states, “We uphold the District Court’s ruling that the developers did not infringe the ‘278 patent. We are overturning the District Court ruling that the developers were entitled to summarize the ‘278 patent being invalid for lack of enablement. Without claiming that the developers could not provide such evidence, we are rejecting the case for further suitable proceedings that are reasonable in view of the developers’ offer to withdraw their counterclaims for nullity. “While this decision provides a conclusion on certain aspects of the case, it leaves other aspects open for the referring court to interpret and resolve.
Now to the profit ratios of the companies in these cases:
The three companies with the highest profit ratios are Morrison & Foerster with 100%, Cooley LLP with 83.33% and Fish & Richardson with 70.59%. Kirkland & Ellis and Fenwick & West are the other two companies in this group with a profit rate of over 50% last year. Morrison & Foerster wins come in the four cases: Google LLC versus Netlist, Nevro Corp. v. Boston Scientific Corporation, CR Bard Inc. v AngioDynamics, Inc., Route1 Inc. v AirWatch LLC.
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Adam Feldman heads the process consulting firm Optimized Legal Solutions LLC. For more information, write to Adam at [email protected]
Find him on Twitter: @AdamSFeldman.
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