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IP Expert: Texas is the Future of Patent Litigation

July 19, 2021 Mark Curriden

Phillip Philbin has been an eyewitness to the ever-changing and increasingly important world of intellectual property litigation over the past three decades.

And it is only going to get more critical to business operations and international commercial competition, he said, and Texas courts and lawyers are going to play a central role in both.

“In my career, I have seen the significance of patents increase dramatically,” Philbin told The Texas Lawbook in a weekend interview. “In the past, mergers and acquisitions used to address patents as the last part of deal negotiations.

“Now, patents are given a priority in corporate transactions,” he said. “Patents are an asset class with immense value.”

Philbin and two of his long-time law partners, Jamie McDole and Michael Karson, moved their IP practice late last week from Thompson & Knight to crosstown rival Winstead.

Their lateral movement is itself a sign about the maturity of the IP legal market in Texas, as Philbin said that they needed a platform – a corporate law firm – that would allow them to do something that is considered taboo in all other areas of complex commercial litigation – represent plaintiffs and defendants in patent disputes.  

“We want to do patent litigation on both sides of the V,” Philbin said. “Texas Instruments and IBM realized that patents can be monetized.”

Now, corporate giants such as AT&T and Halliburton, which were once just targets of patent infringement lawsuits, are now plaintiffs just as often suing other companies who are using their IP without a license.

Philbin, McDole and Karson moved from Haynes and Boone, a firm with more than 600 attorneys and expanding, to TK, which had about 270 lawyers. The bigger the corporate law firm, the more institutional clients to navigate for conflicts.

“TK is an outstanding firm with excellent lawyers, and I am sad to leave so many good friends and colleagues,” Philbin said. “But the firm’s decision to merge with Holland & Knight changed the client conflicts landscape for us and our practice.”

The trio attracted the attention of multiple law firms, but they said they wanted to be strategic in their decision.

“Winstead focuses heavily on education and universities, life sciences and technology,” he said. “Like TK, Winstead is a congenial firm with a strong culture.”

Winstead Chairman David Dawson told The Texas Lawbook in an interview Saturday that the firm has known the three TK lawyers for several years and admired their practices.

“Building a stronger IP practice has been a goal for our firm for a number of years,” Dawson said. “This was too good of an opportunity for us to pass up.”

Philbin said his team and Winstead have overlapping clients, which is a bonus.

Philbin and Karson made national news in 2017 when they represented Zenimax Media in its breach of contract and intellectual property infringement trial against Oculus VR over virtual reality technology.

The federal court trial in Dallas featured live testimony from Facebook founder Mark Zuckerberg, who had purchased Oculus for $3 billion a few years prior. A Dallas jury awarded Zenimax $500 million, which was the second largest verdict in the U.S. in 2017. The case later settled for $250 million.

McDole has represented Dallas-based TransData in patent infringement disputes against General Electric, Oncor Energy and CenterPoint Energy.

Philbin said his team has “several enforcement actions” in active litigation and that “several more are in the stage of being worked up.”

Dallas is uniquely positioned to grow a successful IP practice, he said.

Marshall and Tyler in the Eastern District – the hotbed for patent infringement litigation for the past decade – is a couple hour car drive from DFW, while Waco in the Western District, which is now the most popular jurisdiction in the U.S. for patent disputes, is only a couple hours southwest.

“In the last decade, other countries have competed strongly against the U.S., but we are seeing increased on emphasis by the U.S. to retake the lead position through legislation, the Patent and Trade Office and the judiciary,” Philbin said.

Mark Curriden

Mark Curriden is a lawyer/journalist and founder of The Texas Lawbook. In addition, he is a contributing legal correspondent for The Houston Chronicle and the Dallas Business Journal.

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