Read our latest coverage of patent law and intellectual property issues, from Silicon Valley to the U.S. Supreme Court.
“At that point we changed direction considerably,” Dabney said. “From the first day, we were thinking of potential Supreme Court review.”
At the Supreme Court, Dabney will face off against Supreme Court specialist Thomas Goldstein, a partner in Akin Gump Strauss Hauer & Feld. It’s Goldstein’s 17th high court argument, but his first patent trial. So he’s turning to two patent lawyers � Robert Sterne and Kenneth Bass of Sterne Kessler Goldstein Fox � for IP questions. Steven Susser, a partner at Southfield, Mich., litigation boutique Young & Susser, had represented Teleflex at trial and on appeal. “While we consider ourselves to be trial specialists, we believe this has become an issue that is best handled by a Supreme Court specialist,” he said.
Dabney and some others argue that a Supreme Court specialist isn’t quite the answer. “The trade-off is how well people know the court versus how well they know the subject matter,” said Stanford Law School professor Mark Lemley, one of 24 law professors who filed an amicus curiae brief on behalf of KSR. “In several high-profile cases over the last four years, very well-known oral advocates have blown the answers to really important questions,” he added, though he declined to provide specifics.
The question of whether or not an IP lawyer should argue IP cases before the high court was a dead issue for decades. Then, in its last session, the Supreme Court granted certiorari to four IP cases, more than any year since 1965, when it heard seven. So far, the Supreme Court guys have come out on top: Only one of last year’s cases was argued by a patent litigator, and he lost. Bingham McCutchen IP partner Robert Schroeder represented respondent Swift-Eckrich Inc. in a patent suit against Unitherm Food Systems Inc. Oklahoma City business litigator Burck Bailey won that one. The rest were argued by Supreme Court specialists.
Dabney claims to be the best of both worlds. Over the last 15 years he has made himself an expert on Supreme Court precedent in patent law dating back to the mid-19th century. And as he said, with typical bombast: “It’s hard for me to imagine there is someone who could be more effective than me.”
This article originally appeared in IP Law & Business, a Recorder affiliate based in New York.
