Monday, October 31, 2022

Observations on Juve Patent's patent litigation firm rankings: why in-house counsel shouldn't base any decision on them

I've seen some LinkedIn posts by German patent litigators and patent attorneys in response to Juve Patent's recently published 2022 rankings of German patent litigators and patent attorneys. Even some who I'm sure didn't fully agree with the results were quick to express their gratitude. Given that those who are ranked have their reasons not to speak out, I just thought I'd share my observations.

Juve Patent is complementary to FOSS Patents, which is why I link to their articles from time to time. Their main topic is the legal services industry; and that's where most of their sources as well as their advertisers hail from. By contrast, while I hear things from industry sources, I primarily obtain my information from the courts, and from court documents.

The point I want to make here is that in-house counsel would be well advised to ignore those rankings in their decision-making (and I know some top-notch in-house litigators who indeed wouldn't base any decision on them).

Juve Patent's rankings of litigators (attorneys-at-law) and litigation-specialized patent attorneys are not broken up by industry, though the patent attorney firms listed in the "patent filing" category can be filtered by industry (automotive and transport; chemistry; digital communication and computer technology; energy and environmental technology; electronics; mechanics, process, and mechanical engineering; medical technology; pharma and biotechnology). That inconsistency makes no sense at all. Why would you seek out a firm with a specialization in, say, digital communications for your filing, but then--in litigation--choose firm based on its work on chemical patent infringement cases?

Even for the lawyers, an industry focus makes sense. Instead of recognizing those facts, Juve Patent's commentary on certain firms reads like their perfect firm would cover all industries. That turns a strength (focus) into a weakness. The best firm is not the one that tries to be all things to all people, but the one that does the best job for you as a client on a given case.

It's also imperative to distinguish between defensive and offensive skills. Many German patent litigators handle both defensive and offensive cases, but some specialize in only one of the two disciplines.

More broadly, Juve Patent often doesn't appear to make the distinction between "big" and "great." And they make it sound as if the future Unified Patent Court required firms to have a Europe-wide presence, though one could well argue the opposite: pre-UPC you might have had to run a multijurisdictional enforcement campaign, but if you're going to litigate in the UPC, all that matters is to find the right UPC Local Division (unless the case goes to a Central Division anyway) and the right firm that will win this particular case for you. You can then still decide what do do on appeal, but the appeal certainly won't be heard by a different Local Division.

Also, what's the point in choosing a Patent Law Firm of the Year as well as an IP Law Firm of the Year? Patent litigation is the most important part of IP litigation, and in my twelve years of in-depth coverage of major disputes, I've seen very few cases in which other IPRs were being asserted alongside patents: Apple v. Samsung and Oracle v. Google. The latter was U.S.-only case, and in the former, the diversity of asserted IPRs was far greater in California than in Germany, where it came down to utility patents and design patents. Also, in Germany the courts break up cases by patent, with design patents not being called patents but "taste patterns" and often being put before different judges anyway.

One important quality in patent litigation firms is extremely difficult to research: whether firms give their clients sound advice to settle where it is warranted, or raise false hopes. What is slightly less hard to find out about from industry sources is whether firms play a constructive role in settlement negotiations or just try to drag out litigation. I sometimes get information on that, but wouldn't write about it because the sources would be too easy to figure out.

Juve Patent makes its analysis of the work of different firms read a little bit like Chambers and similar reports. But Chambers is a lot more independent from any given firm than a website that needs those firms as sources of information and, as far as I can see, generates all of its revenues from them, too.

It's interesting that Juve Patent limits its criticism of firms to purely quantitative aspects: partner-to-associate ratios, headcount, number of offices. But various of the firms you find in that ranking have suffered terrible defeats in court or lost major clients lately, including two of the five in Juve Patent's first tier. Do they talk about that? No, obviously not. Those are their advertisers, and their sources.

Such glaring deficiencies and some obvious implausibilities, along with the lack of differentation in the two litigation-related categories, reduce to absurdity their explanations of their methodology such as JUVE Patent rankings explained, JUVE Patent Research Criteria, or videos taken in front of courthouses (I've only very rarely seen Juve Patent reporters at hearings or trials).

What I see is that firms are sometimes ranked below, or even far below, some they clearly outperformed and defeated, or from whom they have enticed away some important clients.

One important change from last year's rankings: Wildanger got promoted from tier 2 to tier 1 (though both are five-star tiers anyway). That was overdue because their results in recent years have been spectacular, so this was overdue.

I can see why Bird & Bird and Hoyng ROKH Monegier are still in the first tier.

Hogan Lovells is not only listed in the first tier but was even named the IP Firm of the Year. It is undoubtedly a large firm and they have some very good lawyers, but a couple of facts are important to consider and not taken into consideration by Juve Patent:

  • Apple is a choosy and demanding client, but Hogan Lovells is not Apple's first choice: Freshfields is. But Freshfields has represented Ericsson (such as when Ericsson intervened in an Unwired Planet v. Huawei case in Dusseldorf), and was therefore conflicted. It is a mystery for many reasons why Freshfields is listed only in tier 2.

  • Hogan is on the losing track against Ericsson (represented by Kather Augenstein) in two Munich cases (1, 2). Kather Augenstein is Ericsson's first choice (they represented them against Samsung as well as now Apple), which is an extremely sophisticated client, and the work I've seen from them on Ericsson v. Apple so far is really impressive--far too good to be listed only in tier 3. While OPPO is now giving Nokia a harder time, I would be very hesitant to name Hogan the IP firm of the year when one of its key clients, OPPO, had to exit the German market after four injunctions in a row (though in practice OPPO phones are still everywhere in Germany, even in retail stores).

Why is Quinn Emanuel still listed in tier 1? What Juve Patent writes about the firm doesn't really support that decision. They even acknowledge that QE hasn't recently had too many high-profile cases in Germany. As Juve Patent notes, Google is a major client, though its Niantic joint venture with Nintendo (known for Pokémon GO) lost an important case in Munich and, as Judge Zigann explained at the end of the trial, will be enjoined if the plaintiff so requests. Juve Patent doesn't specify any example of an important recent achievement by QE Germany. I think QE could deliver better results if they departed from their policy of not bringing patent attorneys to hearings and trials.

When Arnold Ruess--representing Nokia--squared off with QE--representing Daimler--it's not just that they won a couple of injunctions (Daimler--with QE--also lost one case each to Sharp and Conversant) and were likely to win a few more if the litigation hadn't been settled. It's also that Arnold Ruess shaped FRAND case law, and in connection with the Daimler dispute "invented" the first German anti-antisuit injunction (at minimum, the first in a SEP case). I can't see how anyone could rank Arnold Ruess, with its growing client base in the mobile communications space but also beyond, below QE at this point.

I could give more examples, but I just wanted to highlight enough shortcomings that in-house litigators know why it's best to rely on other forms of research and on their own judgment as they work with litigators and patent attorneys on a daily basis. Don't attach any importance to those Juve Patent rankings and awards, or those firm profiles that remain silent about certain major losses and failures.