How healthy is IP litigation as a practice field & how are the exit options? Forum

[Anonymous User]

Hey everyone,

I was just wondering how IP litigation is doing now & how it looks for the near future, and what the common exit options are. Most of relevant threads with active discussion were from several years ago (2016 or before) and they seemed pretty pessimistic. Have things changed since then, or are people still as pessimistic?

[jagpaw]

I’m not in IP lit but I have seen a number of ex IP litigators move fairly high up in-house in the tech/biopharma fields, with a not insignificant number becoming CEOs. Ultimately more and more of this country’s economic growth is in IP and learning how to protect, preserve and grow it is a skill that I think companies in those areas recognize the value of. Particularly helpful if you have a mix of IP lit and trans skills of course, but I think the latter can be developed on the job in house (imo)

[Anonymous User]

IP lit is booming, at least at top tier shops. That's a plus for now, especially if you're worried about the economy.

As far as exit options, I echo what the previous poster said. While there are fewer IP lit roles in house than other areas like general corporate, IP lit is litigation at its heart, so you can exit to other fields if you have the right skills. Anecdotally (and hence why anon), I've seen IP lit colleagues from my firm exit to the IRS, CIA, state AG, AUSA, etc. in addition to your typical in-house IP lit, IP transactions, and general lit roles.

If you're looking to lateral to a different firm, however, you'll likely be confined to IP. There are options to go IP lit -> IP transactions at another firm, but you'd want to do that before you become too senior.

What exit options are you interested in?

[Anonymous User]

IP lit associate here.

As a practice I can't speak to other firms but we are extremely busy, have been for a while, and there doesn't seem to be any sign of letting up given the constant flow of new matters and pitches.

In terms of exit options, there seem to be a handful out there, but with a litigation focus the odds are still greatly stacked against you. As someone who has been on the hunt for exit options, I can tell you that the vast majority of positions, even with an IP bent, want to see deal negotiating/drafting experience. Even product counsel roles, which seem to look more favorably on IP-lit experience, are hard to score for pure litigators, as those teams really want to see proactive advising about product development, not only retroactive dispute/litigation management and bullet points about drafting motions and discovery requests. There are pure litigation in house roles out there, but you will be competing against scores of other IP-lit associates that are hungry to leave, and they very well may be senior to you and have more experience managing cases. Other IP-lit focused roles may also want you to have a hard science degree and admission to the USPTO and patent prosecution experience.

Bottom line, as someone who really wanted to do something IP related in my practice but didn't realize it would be an absolute struggle to exit, if I could go back in time 10/10 times I would pick tech transactions instead.

[Anonymous User]

IP lit associate here.

As a practice I can't speak to other firms but we are extremely busy, have been for a while, and there doesn't seem to be any sign of letting up given the constant flow of new matters and pitches.

In terms of exit options, there seem to be a handful out there, but with a litigation focus the odds are still greatly stacked against you. As someone who has been on the hunt for exit options, I can tell you that the vast majority of positions, even with an IP bent, want to see deal negotiating/drafting experience. Even product counsel roles, which seem to look more favorably on IP-lit experience, are hard to score for pure litigators, as those teams really want to see proactive advising about product development, not only retroactive dispute/litigation management and bullet points about drafting motions and discovery requests. There are pure litigation in house roles out there, but you will be competing against scores of other IP-lit associates that are hungry to leave, and they very well may be senior to you and have more experience managing cases. Other IP-lit focused roles may also want you to have a hard science degree and admission to the USPTO and patent prosecution experience.

Bottom line, as someone who really wanted to do something IP related in my practice but didn't realize it would be an absolute struggle to exit, if I could go back in time 10/10 times I would pick tech transactions instead.

Echoing the absolute struggle point on in-house options. It took me more than a year of applying to land a generalist in-house gig at a tech company with an IP lit background. It opens doors that general lit might not, but it’s still a slog.

[Anonymous User]

What the prior 2 posters said.

-- Signed, BigLaw IP lit associate who applied for 3 years to over 300 jobs and landed one inhouse (non-IP lit) job.

Friends don't let friends go to BigLaw and join an IP lit group. Much, much better to join tech transactions if you have any inkling of going inhouse.

[glitched]

What year are y'all and which market?

[Anonymous User]

Senior IP litigator here, at a large IP boutique.

Please send help. We aren't 3k annual hours busy I guess, but we are all nighter for deadlines busy. We don't generally hire laterals that are not coming off a Fed Circuit clerkship, but we are looking.

Can't say about exit options as I haven't looked.

[jagpaw]

This is all pretty eye-opening for someone who always thought IP lit offered decent exit opps. For those recommending tech trans, do you think someone interested in research, writing, and the analysis that (I think) IP lit offers would really be interested in (and enjoy) the heavy contractual focus of tech trans? From the outside tech trans just seems much drier than IP lit

[Anonymous User]

This is all pretty eye-opening for someone who always thought IP lit offered decent exit opps. For those recommending tech trans, do you think someone interested in research, writing, and the analysis that (I think) IP lit offers would really be interested in (and enjoy) the heavy contractual focus of tech trans? From the outside tech trans just seems much drier than IP lit

Previous "absolute struggle" poster here. Obviously I'm IP lit so I can't speak to how "interesting" tech trans is in the moment, but don't be fooled into thinking that the lit side is always or even often interesting either. There are rare bright moments where drafting a brief can be fun as you hunt down an answer to a nuanced legal issue, but the enjoyment dulls very quickly due to the overwhelming crush of constant drafting/responding to hundreds of repetitive RFPs and ROGs, writing thousands of pages of patent contentions, fighting with opposing counsel in deficiency letters and meet and confers about search terms and whether to use AND or OR in a string, quadruple checking dozens of exhibits and citations in briefs and declarations to make sure no comma is out of place, etc.

I have no doubt that in the moment transactional can worse in that it is allegedly even duller and is more unpredictable. Litigation is almost always on a court ordered schedule so less surprises, but I've still worked countless weekends and holidays, and am on call for fire drills.

After seeing a number of peers from my school scoop up in-house gigs after just a couple years of transactional work, and the in-house work sounding much more enjoyable/interesting, it is about calculating the trade-offs.

[glitched]

Contentions. Expert reports. Patent analysis. That’s the fun part.

But the above poster is correct that discovery is a pain in the ass.

The problem with patent lit (and lit in general) is that to advance to the highest levels you need a very different skill set than what you started with (I.e., you gots to be a rock star orator).

[Anonymous User]

I'm going to push back a bit on the exit options discussion. I agree with the above posters that if you only do IP litigation, you will struggle. But, if you know you want to go in-house, then you can take affirmative steps to broaden your experiences and have pretty good exit options.

For example, you can try to get a 1L summer gig at a prosecution shop or work at a firm that does both lit and prosecution which will give you the ability to say you can manage prosecution during your in-house interview. Also, there are usually opportunities for IP litigators to get involved in transactions in which one of the parties is involved in ongoing or threatened litigation. You just have to find the IP lit partner that does this and ask to be involved. Once you help out on a few of those, you will get pulled into transactions for various things and broaden the skills you can put on your resume and discuss in an interview.

I followed a path similar to the above and started getting serious in-house traction after about 2 years of biglaw IP lit and exited thereafter.

[Anonymous User]

What year are y'all and which market?

Second anon here. West Coast and I moved as a midlevel.

I will second that broadening your experience beyond lit is the best way to maximize your ability to move. But, again, that point implicitly acknowledges that the core IP lit experience isn’t a hot ticket into in house.

[Anonymous User]

Deleted.

[Anonymous User]

IP lit is booming, at least at top tier shops. That's a plus for now, especially if you're worried about the economy.

As far as exit options, I echo what the previous poster said. While there are fewer IP lit roles in house than other areas like general corporate, IP lit is litigation at its heart, so you can exit to other fields if you have the right skills. Anecdotally (and hence why anon), I've seen IP lit colleagues from my firm exit to the IRS, CIA, state AG, AUSA, etc. in addition to your typical in-house IP lit, IP transactions, and general lit roles.

If you're looking to lateral to a different firm, however, you'll likely be confined to IP. There are options to go IP lit -> IP transactions at another firm, but you'd want to do that before you become too senior.

What exit options are you interested in?

OP here. I'd definitely be interested in switching over to IP transaction if that's not too difficult to do during junior years. Is there a typical buildup process to that switch? Do IP lit partners often catch onto it and look down on it?

[Anonymous User]

IP lit is booming, at least at top tier shops. That's a plus for now, especially if you're worried about the economy.

As far as exit options, I echo what the previous poster said. While there are fewer IP lit roles in house than other areas like general corporate, IP lit is litigation at its heart, so you can exit to other fields if you have the right skills. Anecdotally (and hence why anon), I've seen IP lit colleagues from my firm exit to the IRS, CIA, state AG, AUSA, etc. in addition to your typical in-house IP lit, IP transactions, and general lit roles.

If you're looking to lateral to a different firm, however, you'll likely be confined to IP. There are options to go IP lit -> IP transactions at another firm, but you'd want to do that before you become too senior.

What exit options are you interested in?

OP here. I'd definitely be interested in switching over to IP transaction if that's not too difficult to do during junior years. Is there a typical buildup process to that switch? Do IP lit partners often catch onto it and look down on it?

Quoted anon here. Others should chime in, but I have not seen anybody successfully transition to IP transactions within their own firm. I only know of laterals. To move practice groups in-firm from one niche to another there likely needs to be a dearth of associates in the new group and a reciprocal surplus in the one you're ditching. That's hard to find, and I know someone tried and failed at my firm. I also think you risk burning bridges expressing strong interest in another practice group, whether you're successful or not. You may or may not care about that.

Re: lateralling, if you're in IP now and haven't already, I suspect you'll eventually get recruiting emails about tech transactions firms that are open to IP litigators. I've even seen seniors in IP lit lateral to transactional (with a class year cut, though), so it's possible at many levels. Gunderson in particular stands out as a firm that's interested in converting IP litigators to transactional, so consider a move there if you're serious about this. If you want to make the switch, I'd recommend doing it ASAP. Why wait developing the wrong skillset?

I can't speak to the buildup process because I'm not in IP transactions. I have assisted with IP diligence on a few deals without having to learn much, but that's very different from the contract review/negotiating/drafting that would be expected of IP transaction attorneys.

[Anonymous User]

Quoted anon here. Others should chime in, but I have not seen anybody successfully transition to IP transactions within their own firm. I only know of laterals. To move practice groups in-firm from one niche to another there likely needs to be a dearth of associates in the new group and a reciprocal surplus in the one you're ditching. That's hard to find, and I know someone tried and failed at my firm. I also think you risk burning bridges expressing strong interest in another practice group, whether you're successful or not. You may or may not care about that.

Re: lateralling, if you're in IP now and haven't already, I suspect you'll eventually get recruiting emails about tech transactions firms that are open to IP litigators. I've even seen seniors in IP lit lateral to transactional (with a class year cut, though), so it's possible at many levels. Gunderson in particular stands out as a firm that's interested in converting IP litigators to transactional, so consider a move there if you're serious about this. If you want to make the switch, I'd recommend doing it ASAP. Why wait developing the wrong skillset?

I can't speak to the buildup process because I'm not in IP transactions. I have assisted with IP diligence on a few deals without having to learn much, but that's very different from the contract review/negotiating/drafting that would be expected of IP transaction attorneys.

I agree that I've seen successful transitions from IP lit to tech trans for laterals, even as late as a 6th year. Firms are dying for tech trans folks, that's why they are open to former IP litigators. But within the same firm, the risks of burning bridges are just too high that you're better off switching firms. Besides Gunderson, JD SV is always hiring for tech trans.

Tech trans is fun when you actually get to do contract drafting. I'd rather do IP lit than tech trans diligence, which is essentially document review (except you're reviewing and summarizing contracts). At some firms, tech trans folks do exclusively contract drafting and they ask M&A folks do diligence, those are the ones worth joining.

[Anonymous User]

I'm a 7th year associate in IP lit. I know two people personally who transitioned from IP lit to IP transactions. Both were around their 3rd/4th year. One had to take a hit to their class year. She was knocked down to 2nd year, but can't remember whether she was 3rd or 4th year in IP lit. This is a very "real thing" that IP litigators do, at least over the past few years, and there are several firms that are known for taking IP litigators and retooling them for tech transactions. I've explored that option a bit, but I would probably have to go down several class years, and so I just don't think it's worth it anymore.

The exit options for IP lit are not great, but they improve as you become more experienced. The few in-house positions out there, that are specifically for litigators, are for partner-level attorneys. Going to a litigation funder is also an option, but again they're looking for highly experienced litigators who know how to assess the value of an entire case relatively quickly. There are fedgov positions like PTAB ALJ/AA, ITC ALJ/AA, and DOJ and etc., but again you need to be a senior/experienced IP litigator, and it also seems you really have to know someone just to be considered. Basically, the opportunities to leave biglaw before like your eight year are almost nonexistent, but if you can tough it out and do well for 8 (preferably 10 I think) years, then you have some options at in-house, funders, and maybe fedgov. If you've built some decent connections and client relationships, starting your own firm is not completely crazy these days, especially if you can take a hit to comp and have some risk tolerance.

In terms of whether IP litigation is "healthy," it depends a bit on what you mean and what you consider healthy. IP litigation at most firms with an IP lit practice is very healthy in the sense that there tends to be plenty of it, it's high stakes, and it's well compensated. It's not very healthy in the sense that it tends to be high stress, all-or-nothing, unpredictable, and generally miserable on your quality of life. In my experience, there really is no such thing as a "lifestyle" IP lit practice, no real work/life balance. Big firm, small firm, market comp, below market comp, the work itself is basically the same regardless of the client's size and financial strength. If the client considers the case worth litigating, you will be working hard on it. The only path to getting some relief, within a firm environment, is becoming more competent and advancing in seniority, so you can effectively and efficiently delegate.

All this is to say that, as an IP litigator, I think the path to success is to invest the time and effort to learn the trade really well, for 8-10 years, and you'll be in a decent position to have some real control over your life and your work. I can sort of see that on the horizon for myself. I need to get better at delegating and supervising efficiently.

[Anonymous User]

Agree with the above poster that 8+ years is the magic number for doors, including in-house, to open up to IP litigators.

[Anonymous User]

Very informative thread, thanks.

Two questions:

1. Are the exit options substantially different for an IP litigator that does primarily copyright/trademark/trade secret work as opposed to patent work?

2. Looking at firm profiles at large "soft IP" groups, I've noticed a few litigators have listed experience with counseling and transactional matters. Would going to firm that lets you do some counseling meaningfully increase exit options?

[Anonymous User]

Very informative thread, thanks.

Two questions:

1. Are the exit options substantially different for an IP litigator that does primarily copyright/trademark/trade secret work as opposed to patent work?

2. Looking at firm profiles at large "soft IP" groups, I've noticed a few litigators have listed experience with counseling and transactional matters. Would going to firm that lets you do some counseling meaningfully increase exit options?

I’m hesitant to say “meaningfully increase,” but my counseling experience at least gave me something to talk about in my in-house interviews.

[Anonymous User]

I used to do IP Lit and had the opportunity to do a few counseling / transactional matters as well. I found it was pretty helpful in terms of getting interviews and checking boxes to get past the initial HR screening interview, but I was consistently hitting a wall once I actually started interviewing with attorneys and they could suss out that the vast majority of my experience was on the litigation side. These were for product/IP-counsel roles at FAANG-type companies. Eventually went in house as a senior to a non-IP non-lit role that was open to ex-litigators.

[Anonymous User]

I used to do IP Lit and had the opportunity to do a few counseling / transactional matters as well. I found it was pretty helpful in terms of getting interviews and checking boxes to get past the initial HR screening interview, but I was consistently hitting a wall once I actually started interviewing with attorneys and they could suss out that the vast majority of my experience was on the litigation side. These were for product/IP-counsel roles at FAANG-type companies. Eventually went in house as a senior to a non-IP non-lit role that was open to ex-litigators.

What sort of role do you have now?

[Anonymous User]

I’m planning to summer in IP lit. I have two questions

1) are partnership odds any different for IP lit then other groups, say corporate? You often hear how difficult, if not impossible, equity partnership odds are at these big firms. I’m wondering if this fairs any differently for IP lit given the lack of exit options and niche of the area. Since it’s hard to leave, do people end up sticking it out to partner?

2) Should I try to see if I can get exposed to tech trans summer? I’m stuck with this internal feeling that I have to try lit because of stem degree and because I know nothing about corporate transactional work. I know that’s not true, and after hearing multiple mid level associates transition from lit to tech trans, I feel like I’d be much better off if I can try it out this summer

[The Lsat Airbender]

1) are partnership odds any different for IP lit then other groups, say corporate? You often hear how difficult, if not impossible, equity partnership odds are at these big firms. I’m wondering if this fairs any differently for IP lit given the lack of exit options and niche of the area. Since it’s hard to leave, do people end up sticking it out to partner?

This will depend more on what the firm needs (i.e., unpredictable ten years into the future) and how talented you are at one or the other. Either way it's too small a possibility to worry about at this juncture.