What is the current legal landscape for patent litigation in the US?
Silicon Valley remains the leader in shaping the patent law, particularly with respect to patent eligibility. While Texas continues to dominate the patent landscape with respect to the number of cases, particularly in districts like the Eastern District of Texas and the Western District of Texas, the Northern District of California has an extremely tech savvy bench and a strong body of case law filled with lots of experienced in patent cases. But D.C. has also had an impact on the patent law in Silicon Valley. The Department of Justice has submitted an amicus brief in favour of granting injunctions in all patent cases. This would have a severe economic impact on a number of large tech companies. Additionally, the new director of the USPTO has severely curtailed the ability and impact of the patent Trial and Appeals Board, what’s commonly known as the TAB. By increasing the number of discretionary denials of TAB petitions, both of these factors taken together are limiting the options available to defendants accused of patent infringement. Now, we haven’t seen Congress pass any major patent reform legislation yet. However, there are a number of acts that have been proposed. One that’s particularly of interest is one that would create a rebuttable presumption in favour of injunctions in all patent cases. This would eliminate the current eBay standards that courts have been following for years. Additionally, the Senate IP subcommittee held a hearing recently on patent eligibility, which would expand patent subject matter to include a number of patent applications that today would be deemed weak. This would weaken a key defense in software patents, and it would upend an area that the Supreme Court has intentionally avoided deciding. We will continue to monitor this. We will continue to monitor congressional action in these areas that would affect the strategies employed by Silicon Valley companies.

What are three essential pieces of advice for clients related to patent litigation?
I definitely have more than three answers, but I’ll try to limit my answers to three. First, definitely look for outside partners to help you that are on top of major changes as they unfold from the courts, from the administration, from Congress, from legal scholars. We have been watching the Supreme Court’s Trump v Casa opinion, which returns to an originalist understanding of universal injunctions pertaining to non-parties. This decision does not impact nationwide injunctions in a patent case, but we’re monitoring the impact that this could have on non-parties, who could be enjoined under prior case law, such as a manufacturer or distributor of an infringing product. Make sure that you look for counsel who’s experienced and who are vigilantly on top of changes and potential changes to the patent law so that you can run your business effectively. And second, you need to know that patent cases cost both a significant amount of time and money. They require a lot of high level executive time. Patent cases take at least two hundred days to reach summary judgment. That’s more than most other cases. You should consider mediation or arbitration to avoid some of these high costs, and be familiar with the patents in your portfolio that protect your most important inventions, so you ensure that your time is well spent upfront. Have that arsenal ready to go. Third, consider transferring your cases. As we stated earlier, the Northern District of California has judges that are very experienced with high profile cases. Judges in the Northern District of California are more open to motion practice to resolving disputes as opposed to a jury trial. And the Northern District has a set of complicated but very specific patent local rules, which require plaintiffs to identify their theories early on, including for damages. These rules are more important than ever, particularly in situations when the Federal Circuit has asked the district courts to provide better guidance and guardrails for all types of issues in patent cases, including with respect to damages. For example, the Federal Circuit’s recent opinion in EcoFactor v Google applies a higher standard of admissibility of an expert’s damages contention. Again, this is just another example of making sure that you’ve got your playbook ready to go from the beginning of a patent case.

What are the greatest threats and opportunities in patent litigation in the next 12 months?
The Trump administration moves. The patent area has definitely strengthened the position of patent holders. We see in the past six to nine months, district court judges are ruling in favor of patent holders more often than they have in the last 25 years. The pro patent stance as well of the administration, the Patent and Trademark Office and of the TAB, combined with potential congressional action, is emboldening non-practicing entities. It is giving them the encouragement to more aggressively pursue litigation. These changes are going to have a significant impact on how tech companies in Silicon Valley will adjust to a shifting landscape. There may be increased pressure on companies to monetize their patents, to use them not just as a defensive moat, not to hire the best and the brightest, and not for cross-licensing, but to use them in patent litigation. So be aware of that. We’ve seen patent portfolios command the most power than we have seen in recent decades.

How do you ensure high client satisfaction levels are maintained by your practice?
Maintaining exceptional client satisfaction begins with a proactive, transparent, and personalized communication. Since I joined Skadden’s Palo Alto office, I found that the firm’s culture of excellence reinforces my own commitment to responsiveness and precision. From the outset of the engagement, I ensure that our clients have a clear understanding of our strategy of timelines and communication channels that work for them. You need to establish trust, transparency, and clarity from day one. At Skadden, we don’t just solve problems, but we anticipate them and we collaborate on a response. By working across our disciplines and by leveraging our own internal technology, we can deliver efficient and forward thinking, counsel and advice that matches our client’s unique objectives. It’s not a one size fits all proposition. It’s a bespoke proposition. And our anticipatory mindset allows us to address challenges before they escalate and get out of control. Client satisfaction is sustained not only through results, but through consistency, attentiveness, and working behind the scenes constantly to ensure that our business needs are being protected, whether it’s through regular touch points, thoughtful feedback loops, or continuous refinement of our own internal processes. We treat every engagement as a long term partnership, where we learn our clients business and we help them navigate their industry. We enjoy being business partners together.

What technological advancements are reshaping patent litigation, and how can clients leverage them?
The practice of IP law is always changing. It’s probably why we call it the practice of law. There’s a growing emphasis on cross-border transactions, international disputes, international arbitrations, and a heightened focus on protecting trade secrets. At Skadden, we see cases where clients best or only recourse is sometimes in the international courts. We can handle these disputes as well. We see clients adopting large language models in the way that they analyze legal and non-legal problems. We partner with our clients on that. And with the rise of digital platforms, social media and e-commerce, almost every aspect of our life has led to a more intricate and complex set of IP cases – the cloud, AI, etc.