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January 2011

In the relatively new field of IP litigation, a handful of women have made strides.

Successful

By Irene Plagianos

Photograph By Max S. Gerber

Seven yearS ago,

Patently

Ann Cathcart Chaplin, then a fourth-year

It's easy to forget that IP litigation hasn't always been the hot practice area that it is now. Morrison & Foerster IP litigation partner Rachel Krevans says that when she started working in the field in the mid-1980s, it literally didn't exist as a practice area at most firms. Its newness placed fewer entry barriers on women litigators looking to advance. Now a leader in the field of technology and biosciences litigation, Krevans says that it's still rare for her to see another woman as first chair in patent litigation (although she notes that in general it's rare for a top litigator to be a woman). "Balancing career and family when you're traveling all the time, with an extraordinarily demanding workload, is not something every woman wants," Krevans says. Nonetheless, over the past 20 years or so, Krevans and other women, including Kirkland & Ellis's Dale Cendali, Kaye Scholer's Leora Ben-Ami, and Fish & Richardson's Juanita Brooks, have been recognized as some of the country's top IP litigators. Several firms have women heading their IP practice groups, including Wilmer Cutler Pickering Hale and Dorr IP cochair Jane Love and McDermott Will & Emery IP head Sarah Chapin Columbia.

IP generally, more so than just IP litigation, has seen an influx

associate at Fish & Richardson, sat in a conference room in Michigan, waiting to depose a witness in a patent infringement case. When the opposing counsel and his client finally arrived, they vaguely acknowledged her, and proceeded to discuss details of the day's impending testimony. Then the pair wondered aloud why the deposing lawyer was late. "That's when I told them, `Well, I'm the lawyer; we're actually waiting on the court reporter,' " Cathcart Chaplin says with a laugh. "I'd been confused for the court reporter before, so I started to think maybe it could [become my] strategy, since they were talking about the case like I wasn't even there." Joking aside, Cathcart Chaplin--a 37-year-old intellectual property litigator who is the managing partner of Fish & Richardson's Twin Cities office--says that snubs like that have only stoked her ambition. She, like the relatively few other women who have made IP litigation their focus, says she's used to being the only woman in the room. But the current boom in IP work has created opportunities for women. "Knowledge is an equalizer," Cathcart Chaplin says. "If you can understand the technology or science, and break it down for a jury, no one cares if you're a man or a woman."

of women recently, Krevans says. In part, that's because of the increased number of women in law schools, where IP programs

have become widespread. Another factor is a spike in the number of women with backgrounds in science or technology. Krevans points to patent prosecution, as well as transactional work, which includes negotiating trademarks, performing due diligence on patents, obtaining copyrights, and licensing, as growth areas for women. "It's wonderful that IP has become more established, with more mentoring possibilities for women," Cendali says, but the field has also become much more competitive: "You really have to know your stuff and distinguish yourself early on. Expertise matters." Despite the odds, a growing number of women, including some on our "45 Under 45" list, such as Cathcart Chaplin, Quinn Emanuel Urquhart & Sullivan partner Victoria Maroulis, and Cooley partner Heidi Keefe, are making names for themselves. "It's a field that's constantly changing," says Keefe, who leads a team that handles all of Facebook, Inc.'s patent

litigation. Clients "are open to talent wherever they find it, and that's a major benefit for women." Also encouraging, these women say, is the increased prevalence of women in-house at IP clients, such as Cisco Systems, Inc., director of legal services Marta Beckwith, 3M Co. assistant chief IP counsel Hildy Bowbeer, and eBay Inc. associate general counsel Emily Ward. "These companies are used to seeing women in authority positions," Maroulis says. For Cathcart Chaplin, whose clients include Chevron Phillips Chemical Company LLC and 3M, handling her career while making time for her family is "the most complicated part" of what she does. It helps, she

Cooley's Heidi Keefe (left) and Quinn Emanuel's Victoria Maroulis: IP clients are "open to talent wherever they find it, and that's a major benefit for women," Maroulis says.

says, that her husband is a stay-at-home parent. She says that she includes her children as much as possible in her job by explaining to them why and where she's traveling. Cathcart Chaplin says that Fish & Richardson strives to support its women lawyers. Every couple of months, each female partner participates in question-and-answer sessions with female associates to address issues of work/life balance, leadership, and career advancement. "We want women to learn from each other about how to make it all work," Cathcart Chaplin says. "It is tough, but we want women to know that it's certainly possible." Throughout her career, Cathcart Chaplin--the first woman to hold an office managing partner position at her 132-year-old firm--has already faced many of those issues. She majored in the sociology of law as an undergraduate, juggling four jobs to pay her way through the University of Minnesota, and then headed straight to Harvard Law School. Initially she thought she'd spend her legal career as a public defender. That changed during a summer job in the public defender's office of her hometown of Stillwater, Minnesota. "It was almost too emotional for me," says Cathcart Chaplin. "For me, being a lawyer means being a problem-solver, and there were just too many problems that were beyond my control." Cathcart Chaplin knew she had a passion for litigation, but the IP focus came after she took her first big-firm job, with Robins, Kaplan, Miller & Ciresi. There she worked with start-up biotech companies on medical device patent cases, and to her surprise she found she enjoyed the challenge of getting a handle on technologies that she knew nothing about. "A patented invention can mean the livelihood of an entire company," she says. "You have the opportunity to work with engineers and inventors who are deeply committed to and enlivened by what they are working on." Her facility in working with both lawyers and the people behind the technology and patents remains a strength, says Michael Lee, chief intellectual property counsel for Chevron Phillips Chemical. "She's extremely thorough, and very well-liked by the people here," Lee says. After three years at Robins, Kaplan, Cathcart Chaplin was recruited by Fish & Richardson in 2001 and made partner four years later. "I always showed that I was very anxious to take on as much responsibility as possible," she says. Despite her lack of a technical background, "I made myself essential to the case. I learned more about the case than anybody." Her dedication has landed her roles on major pieces of litigation. In 2008 Chevron Phillips Chemical tapped Cathcart Chaplin and her team to handle a complex trade secrets case involving its process for production of polyethelyne. As Chevron's co­lead counsel, she won a crucial temporary injunction against INEOS Group Limited, following an eight-day bench trial, and went on to negotiate a favorable settlement in May. (The injunction "helped validate our position," says Lee.) She also helped argue and win a complex patent infringement jury trial for Cargill Incorporated that involved its brand of high-stability canola oil, and helped obtain a summary judgment for Google Inc. after Hyperphrase Technologies, LLC, asserted that Google infringed on some of its advertising-space technologies. Cathcart Chaplin "is a rare combination indeed," says Fish & Richardson partner Thomas Melsheimer, her colead on several patent cases. "She's a tough-as-nails trial lawyer with a Lake Wobegon affability. On top of that, she is as technically smart as any MIT engineer, so she presents a very formidable package."

Colleagues use similar terms to describe Maroulis. "Vicki is tireless, and fiercely intelligent," says Adrian Pruetz, a leading female IP litigator who was one of the founders of Quinn Emanuel's IP litigation practice. "I always knew I could totally rely on her, which is crucial." (Pruetz, who has been lead trial counsel for such clients as Mattel, Inc., Nike, Inc., and Abbott Laboratories, left Quinn Emanuel to form her own firm four years ago.) Quinn Emanuel's Palo Alto office was small, only about a dozen lawyers, when Maroulis joined the firm in the late 1990s, during the heyday of the dot-com boom. The atmosphere gave Maroulis plenty of mentoring and the chance to sink her teeth into cutting-edge patent suits right away. "From the beginning I was working on some exciting cases," she says. "It was a pretty wonderful opportunity." Maroulis, who made partner after three years and is now cochair of Quinn Emanuel's life science practice, credits Pruetz and Quinn Emanuel

IP partner Charles Verhoeven with helping her advance. In 2002, with

Verhoeven as lead trial counsel, Maroulis helped secure a $9 million jury verdict for Tegic Communications, an AOL Inc. subsidiary, by convincing jurors that a company competitor, Zi Corporation, infringed on Tegic's text-entry software patent. "We took over that case just two months before trial from another firm," Maroulis says. "It was a massive challenge, but it was a great learning experience." Like Cathcart Chaplin, Maroulis, 39, doesn't have a formal background in science or technology. A native of St. Petersburg, Russia, she majored in political science as an undergraduate at Stanford University. Maroulis says her liberal arts education has been a help in her practice. "In a way, I'm acting as an interpreter or translator for a judge and jury," she says. "I need to absorb all this complex information, but then break it down in a way that people like myself, without that technical degree, can understand." Last year Maroulis secured a writ of mandamus for drugmaker Genentech, Inc., from the U.S. Court of Appeals for the Federal Circuit, transferring the venue of a patent suit brought by Sanofi-Aventis Deutschland GmbH. The case, In re Genentech, Inc., was moved from the U.S. District Court for the Eastern District of Texas, which has become known as a patentee-friendly district, to the Northern District of California; the decision has become a defining ruling for venue in patent law cases. It was one of the first cases allowing for a change of venue, even without what the court called "key witnesses" in Northern California. In December 2009 Maroulis helped successfully defend Cisco against claims that it infringed on ESN LLC 's Voice over Internet Protocol technology patent. The case was dismissed; the Federal Circuit upheld the dismissal the following October. And last November, Maroulis helped win a key partial summary judgment that limits GE Healthcare's liability in an MRI technology patent infringement suit filed by the University of Virginia. "She's very organized, and she's very creative," says Buckmaster DeWolf, general counsel of GE Global Research. "She's great at thinking outside of the box." Unlike Cathcart Chaplin and Maroulis, Keefe, 40, came to the law with a background in science: The Cooley litigation partner studied astrophysics as an undergraduate at Wellesley College. Her proclivity for science, she says, makes her comfortable with the technical aspects of her clients' businesses, although most of what she does is quite removed from her astrophysics background. Still, Keefe says that it's a benefit for women

to graduate with science degrees if they are looking toward a career in IP. "I'm really happy to see more and more women in the sciences," says Keefe. "It may not make you a better litigator, but that degree signals to a client that you have a certain facility with some complex information." Facebook general counsel Theodore Ullyot says that Keefe's "passion for tech really shines through in her work." Keefe, who has led all of Facebook's patent litigation since 2007, "is someone who has spent an enormous amount of time and energy to understand our company at the deepest level," Ullyot says. "That's not something I've seen most lawyers do." In July, Keefe represented Facebook in its first jury trial, a claim filed by Leader Technologies, Inc., which alleged that Facebook had infringed upon Leader Technologies's patented data management tool. During a seven-day trial in Delaware, Keefe, as co­lead counsel, successfully defended against the suit, convincing the jury that Leader Technologies's patent was invalid. Keefe credits her success to her team, which includes Cooley partners Mark Weinstein and Mark Lambert. Keefe met Weinstein and Lambert more than ten years ago, when they all were associates at Orrick, Herrington & Sutcliffe. Her position at Orrick was her second job after earning her law degree in 1995 from the Santa Clara University School of Law, where she'd focused on the school's IP program. (Her first job was at Limbach & Limbach, a San Francisco IP boutique.) After eight years at Orrick, Keefe, with Weinstein and Lambert, moved to White & Case. The firm, she says, had a small office in Silicon Valley, giving the three of them a "huge opportunity" to develop clients. In 2009 the three jumped to Cooley, and such clients as Facebook and HTC

Corporation followed. HTC senior director of patent litigation David Wiggins says that settling cases early and favorably are the great markers of success in the world of high-stakes patent litigation. "Heidi is far and away the best negotiator that I've ever encountered," Wiggins says. "She makes the most confident plaintiffs realize that their case isn't as good as they think it is; she really makes them nervous." Last fall Keefe, who's handled more than ten suits for HTC, used her negotiating skills to settle a major patent infringement suit against the company. Wiggins says the plaintiff was "very abrasive," but Keefe was able to smoothly "navigate through his difficultness" and negotiate a settlement that HTC was happy with. "When you're working for these fast-paced companies, they expect you to be as dedicated as they are to their work," Keefe says. "It's extremely demanding, but it's also enlivening." Keefe, Cathcart Chaplin, and Maroulis all say that moving forward in a male-dominated field requires an intense work ethic, and making sure that clients and partners are aware of your value. "Women have a tendency to work extremely hard, to be great at what they do, but to keep their heads down," says Cathcart Chaplin. "You really have to be fearless, and make it known that you want more responsibility and can handle it." She says she already sees a "marked difference" in the number of young women associates at her firm looking to climb the IP litigation ladder. "There isn't one way to get here," Cathcart Caplin says. "But hopefully, fewer young women attorneys will be confused for the court reporter."

E-mail: [email protected]

Profile feature

VIctorIa MaroulIs, 39

Quinn Emanuel Urquhart & Sullivan Redwood Shores, California

In complex patent lItIgatIon, thinking strategically and quickly are crucial, says GE Global Research general counsel Buckmaster DeWolf. Maroulis has those gifts, he says. In November, Maroulis, cochair of the firm's life science practice, and her team won a key partial summary judgment that limits GE Healthcare's liability in an MRI technology patent infringement suit filed by the University of Virginia. Maroulis has also helped score big patent victories for clients like AOL Inc., Oracle Corporation, and Cisco Systems, Inc. In a major win for Cisco in 2009, she helped defend the company against claims that it had infringed on ESN, LLC's Voice over Internet Protocol technology. The suit was tossed, and in October, the dismissal was upheld on appeal.

Reprinted with permission from the January 2011 edition of THE AMERICAN LAWYER © 2011 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or [email protected] # 001-12-10-10

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