The firms listed in the copyright table are assessed on their capabilities across advisory, transactional and litigation matters. Those firms that do most or all of these things well are ranked highest, although there is also room for specialists with niche expertise. Uncharted territory at the intersection of copyright and new technologies is fertile ground for the legal market, with clients seeking advice and representation in high-stakes litigation that is often not just bet-the-company but bet-the-industry. After the 2014 Supreme Court decision against Aereo, and its business model of capturing over-the-air television and retransmitting it over the internet, disputes have intensified over other internet television services; prominent examples are Aereokiller, Dish Network and TVEyes. Similar disputes exist in the music area, where internet radio service Pandora Media has continued its litigation over royalty rates. In addition to these and other headline-grabbing first impression cases, there is also a large volume of more traditional copyright work that keeps practices busy.
The patent litigation: full coverage ranking features firms with strong, demonstrable expertise in handling patent infringement cases at both trial and appellate level, and with an active presence before the specialist forums of the International Trade Commission (ITC) and the United States Patent and Trademark Office (USPTO). The number of cases filed has remained steady over 2015, with an increasing emphasis on inter partes reviews as a crucial part of defense litigation strategy; this, along with the increased number of post-Alice motions concerning patentable subject matter, has resulted in the continual decrease in the volume of claims filed by non-practicing entities. Competitor cases remain prevalent nonetheless, with major companies increasingly seeking protection and enforcement of their patent rights, and the market has seen a significant number of Hatch-Waxman cases related to the production and marketing of generic drugs. The hi-tech, pharmaceuticals and medical devices sectors remain the key areas of focus within this space.
The patent litigation: International Trade Commission table features a mix of IP boutiques and full-service firms that have a strong wealth of knowledge regarding the ITC’s regulations and procedures and are thus best equipped to handle investigations within this forum. Despite the drop in matters brought to the ITC following the decline of the high-profile smartphone wars, the Commission continues to receive a steady stream of multiple-respondent and competitor cases, both of which have kept the docket busy. The issue of whether products covered by process patents are admissible to the ITC is a matter of ongoing debate.
The patents: portfolio management and licensing table covers firms with outstanding expertise in managing and monetizing patent portfolios for domestic and international clients in the US and around the world. This includes firms with strong capabilities in preparing and negotiating licenses, patent acquisitions and sales, joint development agreements and other collaborations. Credit is given to firms that can demonstrate a full-service transactional patent practice and a notable profile in national and international deals.
The patents: prosecutions (including re-examination and post-grant proceedings) section recommends firms for their breadth and depth of technical expertise in drafting and prosecuting US patents for domestic and international clients. Under the America Invents Act (AIA), ex parte re-examination proceedings, which have unique rules and procedures, remain an important option to consider when challenging the validity of a patent. But the shakeup regarding post-grant proceedings has led to a drop in the amount of IP litigation being filed, and, in many cases, post-grant proceedings can provide a true alternative to lengthy district court proceedings.
The misappropriation of trade secrets continues to be a major concern in the corporate world, in particular for hi-tech companies. A potential new federal act covering trade secrets is being considered for next year, which would overthrow the current regulation at state level. This legislative change is the key upcoming development of note.
The trademarks: litigation section recommends firms for their depth and breadth of expertise in trademark disputes. While the greatest emphasis is on cases before federal courts, litigation in other forums is also taken into consideration, including the Uniform Domain-Name Dispute-Resolution Policy and the USPTO’s Trademark Trial and Appeal Board (TTAB). The TTAB had a lot of attention due to the 2015 Supreme Court decision in B&B Hardware v Hargis Industries, which clarified that, in certain circumstances, a prior TTAB decision can have preclusive effect on a court. There are different views on this decision. Some say that its effect on the general trademark litigation landscape is very limited, while others say that it significantly raised the profile of the TTAB and is often relevant for the strategic decision about where to litigate a case. Another important development regarding the forum chosen for litigation is the increasing use of the US International Trade Commission (ITC) for trademark litigation, although this forum is still used for significantly more patent than trademark matters.
The trademarks: non-contentious section recommends firms for their capabilities across portfolio management, prosecution, transactional and other advisory work. Many of the listed firms also have significant experience with administrative proceedings, including cancellations and oppositions, as well as anti-counterfeiting and enforcement work. Overall, the market for trademarks non-contentious legal services is steady, with high demand for external advisers. Non-traditional trademarks and matters involving trade dress are on the rise.