A golden age of civil antitrust, from the 1960s into the 1980s, enriched the victims of cartels and monopolies but upset corporate America. The high cost of paying treble damages claims eventually provoked a spare-no-expense approach to defense. That in turn influenced the way plaintiffs prosecuted their Sherman Act claims.
Much the same thing has now happened with patent infringement cases, which had their own golden age in the last decade. What, if anything, can patent litigants learn from the antitrust experience? I think they can divine quite a lot. In this post, I will tell you why.
Bigger cases on average
The “millions for defense, but not one cent for tribute” attitude that developed in the antitrust defense bar and their gigantic clients aims to deter the bringing of cases in the first place. It also taxes the resources of the plaintiff, who may thus find out too late that she cannot afford to take a case through trial. Scorching the earth additionally makes a loss on the merits all the more painful for the plaintiff (or her counsel), who will have now lost a great deal of money as well.
Making the prosecution of civil antitrust cases more costly had a predictable demonstration effect over time. It principally resulted in an increase, on average, in the stakes at issue. A higher damages figure made the average Sherman Act case attractive enough to lawyers willing to work on a contingent-fee basis. It also rendered the case a better candidate for a worthwhile settlement, one that more than covered fees and expenses.
A similar dynamic exists in patent litigation. For companies that face a lot of infringement actions, the standard defense budget tops $1 million. The plaintiff needs a case worth more than $10 million in such circumstances to obtain the services of a capable contingent-fee lawyer, who will insist on a chance to earn at least three times his investment.
One way to make antitrust cases large enough to justify their risk and cost involves aggregation. Rule 23 of the Federal Rules of Civil Procedure permits one kind of aggregation — the class action. Rule 23 and its state-law counterparts allow even a single class representative to bring claims on behalf of hundreds, thousands, or millions of claimants who have similar claims. Class treatment could convert a small, hopelessly uneconomic one-off lawsuit into a juggernaut involving many hundreds of millions of dollars and possibly even billions.
The stakes-raising feature of the class action device has turned the class certification process into an extremely expensive battlefield. In a case that I have handled for more than a decade, for example, the parties submitted more than 30 different expert reports and presented live testimony and dozens of exhibits at a five-day evidentiary hearing.
Class members with larger claims may also choose to opt out of a class action. They generally engage lawyers who specialize in handling those sorts of cases, typically on a contingent-fee basis. The lawyers in those instances may serve as aggregators, enhancing their clients’ collective bargaining leverage while reducing average costs by spreading them over more claimants and higher aggregate damages.
Patent cases do not qualify as readily for class treatment. Nor can different patent holders band together to bring infringement claims as a group. The venue and joinder rules under the America Invents Act of 2012 made multiple-party patent cases much harder to bring.
But patent holders aggregate anyway. They do it by acquiring a critical mass of patents in particular fields and even entire portfolios. In May 2023, for instance, BlackBerry sold its 32,000 patents and patent applications, apparently for close to $1 billion.
The aggregation of patents in a single holder makes for a more formidable adversary. That has led the targets of their infringement lawsuits to call them names. A favorite rhymes with goal.
The higher cost and greater complexity that came to characterize antitrust cases as defendants counterattacked them led to another device for managing risk on the plaintiff side. Taking a Sherman Act case across the juridical goal line now demanded a high degree of skill, mastery of the subject matter, and staying power. Few plaintiff’s firms could meet those criteria.
In 1980, Steve Susman founded the first litigation boutique, Susman Godfrey (my firm), which served as lead counsel in the largest price-fixing class action then working its way through the courts, Corrugated Container. The case produced a jury verdict for the plaintiff class and more than $360 million in settlements. Other boutiques have followed suit.
Boutiques that specialize in patent cases have likewise sprung up as infringement actions have proliferated. A significant part of my firm’s cases involve infringement claims. These firms’ trial-savviness, knowledge of the peculiarities of patent law and litigation, and financial resources are all but essential for high-stakes infringement actions.
A factor that deterred antitrust cases — the possibility of having to defend against a counterclaim — also may limit the appeal of patent infringement cases. Antitrust claimants often avoided the counterclaim problem by taking a low profile in class action cases but then demanding a settlement at an opportune moment, usually after the class reached a resolution of the class claims. Assignment of claims to a trustee may also work.
Patent holders generally have two choices for dealing with the possibility of a counterclaim. Either they can build or buy a patent portfolio that enables them to overawe the defendant in a dueling-patent contest (Apple and Samsung provide an example), or they can limit their business to ownership, licensing, and litigation of patent rights and thus avoid countercharges of infringing conduct.
The second model tends to make repeat infringement defendants say undiplomatic things about patent holders that do not “practice” the inventions by doing or making things or providing services with them. But the non-practicing entities are simply doing what any sensible plaintiff would do if she could — avoiding a costly and complicating counterclaim.
Past as prologue
That an older type of high-stakes commercial cases can provide lessons for a newer kind should not surprise us. The basics of the civil justice system have not changed that much.
What do you think about the way patent infringement cases have followed a pattern similar to what happened with antitrust cases? Do you think the responses of defendants have gone over the top? Have they struck an appropriate balance? Or should they go even further?
Let your fellow readers know what you think.