Sullivan & Cromwell
What changes have you observed in patent litigation over the past decade and what impact has this had on the way that Sullivan & Cromwell (S&C) handles cases?
Garrard Beeney (GB): There are at least four changes over the last decade that continue to escalate and inform how S&C approaches cases. First is the increasing value and significance to clients of IP litigation, whether patent, trade secret or otherwise. Second, as we have more frequent litigation over alleged infringements of SEPs, the frequency in which IP litigation involves FRAND issues and competition/antitrust laws has risen. Third, the cases we handle are more frequently going to trial than in the past, reflecting their increased significance and value. Finally, more of these disputes have become multi-jurisdictional. We have deep experience in evaluating the risks and benefits that different jurisdictions may serve in respect of an overall litigation strategy.
All four of these changes have increased the demand for our IP litigation group and had a positive impact on S&C by allowing us to play to our strengths. For example, over the past several months Dustin Guzior (my partner) and I successfully tried an International Trade Commission case – fending off an attempt to prevent fulfilment of a multibillion dollar US contract and a matter in Virginia in which a jury awarded our client $185 million in damages for infringement. Because the jury also found wilfulness, Dustin and I are seeking treble damages, attorneys’ fees and other cost-trial relief. We also obtained a judgment of $960 million in a licensing dispute. So the numbers are high!
Historically, in most – if not all – areas of litigation, S&C has been a go-to firm and that is no different in IP litigation. Additionally, because of our experience handling dozens of multi-jurisdictional SEP infringement cases (raising FRAND and competition issues), we are seen as having a high level of experience in those areas. Finally, we have tried a number of other cases over the years, disproportionate to our size, with uniformly successful results. Due to this work, clients turn to S&C when they have high-value, significant litigation that demands superior trial skills.
How do you expect the IP monetisation scene to evolve over the next five years?
Nader Mousavi (NM): The IP monetisation landscape continues to extend beyond traditional technology into other industries. A recent example of this is in the automobile sector. As cars have increasingly become akin to rolling computers, they have become subject to more and more monetisation strategies.
This trend will play itself out across many sectors. There are many drivers for this transformation, including the rise of mobile, digital transformation, automation, cloud, connectivity, IoT and other technologies. The macro trend is that the value of the assets and businesses in our economy has increasingly shifted from tangible to intangible assets. The actual figures on this are staggering. In 1975, more than 80% of value of the S&P 500 was in tangible assets. Now, it is estimated that 90% of value lies in intangible assets. High-stakes disputes have increasingly focused on technology and intellectual property – and we have no reason to believe that trend will be reversed.
What does inspirational leadership look like at S&C?
GB: We lead by doing, not just by talking. Our senior lawyers dig into the issues in a case, learn it and know it intimately. I think this is a significant component of being a superior trial lawyer. Leaders at S&C also recognise the importance of acknowledging the great efforts of junior lawyers and rewarding success with opportunity. That work can be encouraged not just through positive feedback, but by providing the opportunities younger lawyers want to have in transactional and litigation work. My teams want to learn and be accomplished litigators, and when junior lawyers earn opportunities to, for example, take depositions, examine witnesses at trial, or make arguments in court, partners must take on the commensurate responsibility of helping them succeed. I must say, so far so good.
NM: I agree with Garrard wholeheartedly and would add that inspirational leadership at S&C is based on developing a culture of teamwork. This involves everyone working towards the common goals of serving the clients’ needs and achieving the best outcome for them. We achieve the best results by ensuring that everyone is rowing in the same direction and focusing on our common objectives.
S&C has over 875 lawyers who serve clients around the world through a network of 13 offices. How are you able to share expertise and disseminate learning across such a global network?
NM: The tradition of cross-border and cross-office collaboration among our lawyers and staff is embedded in the S&C firm culture. We believe the sharing of learning and knowledge is fundamental. In the development of our practices and the mentorship of our lawyers, we are fortunate to be engaged in so many extremely interesting and cutting-edge transactions, trends and litigations. This work provides incredible opportunities to learn and, in some cases, make law or define new transaction types. In our practices, our approach is to ensure that knowledge does not just rest with the relevant deal team but is shared across our firm on a consistent and ongoing basis. This is often done through regular meetings, where associates give reports on their learnings of the week, and through larger group meetings where we go more in depth into major developments and learnings from recent cases to knowledge management. These learnings are distilled into best practices that are aligned among our group and then shared with junior associates.
How have client demands changed over the past decade and what impact has this had on the services offered by the firm?
GB: Increasingly, we have seen more intimate client involvement in the matters we are handling. This has resulted in stronger collaborations with clients and avoided unnecessary expenditure of assets. S&C has been ahead of the curve on these trends, as we have always welcomed and encouraged partnering with clients on their important legal matters and watch client resources as if they were our own. For example, we do not take a deposition because we can, rather, we expend resources only if it will have a positive impact on the matter. This also extends to being economic and efficient on how matters are handled and billed. Good litigators should not just be called on to make a call on what is necessary, but also on what may not be necessary and constitute an unwise allocation of resources.
The firm believes that diversity is vital to providing clients with the highest level of service. How is this commitment fostered on a day-to-day basis?
GB: We have traditionally and historically recognised that what each individual can contribute is unique, and we are conscious that diversity enriches our organisation and advances the opportunity to improve the calibre of our legal services. While diversity benefits not only our work – the diverse experience you can bring to dispute resolution, convincing a judge or jury is invaluable – it also enriches the experience of lawyers within the firm, which has always been a priority.
NM: As a firm, we aim to recruit and provide opportunities to the most diverse teams that we can. We have found that diversity within teams improves our ability to provide the highest level of services to our clients. Our group in particular benefits from the diversity of its partners. Mehdi Ansari, Dustin Guzior and I all serve on the diversity committee, and we are committed to ensuring that diversity efforts are successful not only in our practice but across the firm as a whole. We view it as a priority in both our practice and the firm at-large that equal opportunities are provided to diverse lawyers and that we are identifying and supporting opportunities for advancement.
S&C’s clients include both US and non-US entities, from industrial and commercial companies to individuals, estates and trusts. How do you tailor your service to fit the specific needs of each client?
NM: Our team is involved in the IP technology and data aspects of every transaction that the firm advises on worldwide. As a result, we have to be very attuned to the role of intellectual property and technology in diverse contexts and be able to focus on how they are important in each different instance. This is one of the most exciting aspects of our practice: the opportunity to continuously learn from and about our clients and their innovations.
GB: Regardless of the client, we need to deeply understand their business and how the legal issue that we are addressing fits in with their business goals. It does not denigrate the significance of litigation to recognise that it is not a goal in and of itself – it is a tool to achieve a business objective. For example, taking a position may enhance an opportunity to win, but what is the impact on the client’s business of taking that position? The overall objective needs to be kept in mind.
What changes in working practices has the firm introduced in response to covid-19 lockdowns, and are any of these likely to remain in place?
NM: While the pandemic proved that we can be extremely productive, it is not the same as being present in person, especially for a firm with a culture of close collaboration and mentorship, like us. As we reopened our offices, we have made an effort to bring back personal touchpoints through regular in-person interactions. With our junior attorneys, we are focused on developing and maintaining close connections – the foundation of good mentorship. The casual interactions and moments in between the scheduled meetings are critical to developing relationships between partners and associates as, equally important, among associates.
S&C is noted for its pro bono practice, which has helped clients and non-profit organisations in need. How does this help the firm’s experts stay on the cutting edge of legal and market developments?
GB: Pro bono is an essential part of the firm’s goal to not just develop lawyers but to cultivate members of the bar, who take seriously their responsibility to use their talents in a productive way. S&C has always encouraged its lawyers to follow their passions through pro bono activities. We believe that our community benefits from those efforts, and our clients benefit as our lawyers stay in touch with the world around them, outside of our particular practice.
In my pro bono practice, I have been privileged to represent clients fighting attempts to
reduce gun safety, prevent a woman’s right to choose, interfere with physician counselling to transgender individuals and prevent LGBTQ+ individuals from providing loving homes to children in state care. I am currently representing on appeal a survivor of domestic violence, who, after horrific abuse by her domestic partner, was further abused by our criminal justice system.
Taking on these cases helps us become better lawyers and allows us to better serve the profession that gives us so much. No matter what we do in our careers, we stand on the shoulders of other people who helped us get where we are today. I would not have my career at S&C without student loans, encouragement from my law professors, my family’s support and without the guidance and support of my S&C colleagues over the past 42 years. To me, that results in an obligation to give back and make the world a better place and to undo legal injustices when we see them regardless of any particular political view.
How does the firm measure the success of an IP strategy?
NM: A successful strategy is one that serves and enables a key business objective. Our success comes back to defining what the client’s objective is – from ensuring a client’s freedom to operate or to monetise an IP asset – working backwards to develop and implement an IP strategy that best serves the client’s objective.