The Background – Specialty Firms Traditionally Handled Patent Work
As recently as the late 1990s, it was rare for large firms to handle either patent litigation or patent prosecution work. When it came to intellectual property litigation, large firms generally limited themselves to trademark and copyright litigation and stayed away from patent litigation. Because the firms did not do much work in the patent litigation area, they also did not have specially trained patent lawyers. For example, when I was an associate at Quinn Emanuel in the 1990’s, it was not unusual for attorneys with nontechnical backgrounds to work on the relatively few patent-related litigation matters that the firm worked on from time to time. Though it seems inconceivable today, this meant that an attorney with a liberal arts degree in something like History or English would be expected to take depositions and write summary judgment motions on scientific topics such as circuit boards.
Historically, specialty intellectual property firms handled the country’s patent work, not large multiservice law firms. These specialty firms were scattered around the United States and some were large and prominent—such as the now defunct Pennie & Edmonds—and others were small and not well known. Additionally, patent prosecution work was sometimes handled by independent individuals working out of their homes, or small law firms of five people or less.
Large Firms Began Poaching Patent Lawyers in the 1990’s
Things changed in the late 1990’s, when patent-related litigation substantially picked up steam. Large multiservice law firms began to realize that this work was very profitable and decided to capture their portion of the market. Moreover, clients began to demand that large firms handle patent litigation matters and that attorneys with technical backgrounds and special expertise be available to handle those patent litigation matters.
To get their share of the market and to satisfy client demand, large law firms started to aggressively pursue and poach intellectual property lawyers from specialty firms all over the country. In many cases, these large firms acquired entire boutiques or groups within firms that typically consisted of both patent prosecutors and litigators. In short order, many large law firms had acquired patent-related practices while at the same time the intellectual property boutiques had lost their most valuable partners and their most profitable practices.
There were two main reasons why so many patent lawyers allowed themselves to be enticed away from their intellectual property boutiques to join to large multiservice law firms. For one thing, joining larger firms enabled these attorneys to better service their clients because they could cross-sell other services provided by other practice areas (such as corporate, real estate and tax). For another thing, the larger firms typically had more offices, could pay more, and simply had better “brands” than smaller firms.
2005 to the Present – Patent Litigators Become More Valuable Than Patent Prosecutors to Large Firms
There are differences between patent litigation and prosecution, and beginning in about 2005 large firms started to realize that they wanted patent litigators but were not so interested in patent prosecutors. One reason is because patent prosecution is typically not anywhere near as profitable as patent litigation. Patent prosecution costs are often “fixed” and because it is very competitive it attracts people willing to discount fees. This makes patent prosecution a much more difficult “business” for large law firms because they cannot turn on the billable hour money spigot as long or as much; patent prosecution is just too much of a “commodity.” It would make very little sense, for example, to put a lot of prosecution jobs in large New York law firms because their rates are simply too high and they have no interest in the sort of “fixed fee work” that patent prosecution involves.
Moreover, patent prosecution generally does not require the kind the resources offered by a large firm. This means that companies who need patents can cut costs by outsourcing their patents to smaller law firms and even individuals who can do the work just as well. (Patent prosecutors are almost like “craftsmen” and do not necessarily need a large law firm to do their work well.) Most companies know the “going rate” for doing most types of patents and will not pay outrageous hourly rates to have something done by a fancy law firm when it could be done profoundly cheaper and at a fraction of the cost elsewhere.
Given all this, large law firms stopped grabbing up whole swaths of patent attorneys of all kinds and began to concentrate their energies on patent litigators with business. This not only deprived boutiques of some of their best talent, this also deprived boutiques of a necessary stream of revenue. The reality is that a law firm made up of patent prosecutors is simply not as financially viable as one that has lots of ongoing litigation to supplement the prosecution.
None of this is to say that large law firms will not do prosecution—they do. Some offer it to their clients as a service despite not making a lot of money from it. They may offer it the same way that some large law firms have offered trust and estates services: They offer the service to keep the work in house and make clients happy, not necessarily as a profit center. But patent prosecution is not important to large firms in the way that patent litigation is, and the result is a systemic destabilization in the manner in which patent work is done in this country.
The Result of the Poaching of Intellectual Property Litigators
Litigation is profitable and something that intellectual property firms need to survive and prosper. It is difficult to run a large intellectual property law firm doing only prosecution. Large law firms have recruited away a great deal of the profitable work from intellectual property law firms by poaching their litigators. The reason intellectual property law firms are shrinking, dying off and experiencing many problems is because they are losing access to profitable intellectual property litigation and are unable to retain their most profitable partners.
About Harrison Barnes
No legal recruiter in the United States has placed more attorneys at top law firms across every practice area than Harrison Barnes. His unmatched expertise, industry connections, and proven placement strategies have made him the most influential legal career advisor for attorneys seeking success in Big Law, elite boutiques, mid-sized firms, small firms, firms in the largest and smallest markets, and in over 350 separate practice areas.
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He has also placed hundreds of law firm partners and has worked on firm and practice area mergers, helping law firms strategically grow their teams.
Unmatched Commitment to Attorney Success - The Story of BCG Attorney Search
Harrison Barnes is not just the most effective legal recruiter in the country, he is also the founder of BCG Attorney Search, a recruiting powerhouse that has helped thousands of attorneys transform their careers. His vision for BCG goes beyond just job placement; it is built on a mission to provide attorneys with opportunities they would never have access to otherwise. Unlike traditional recruiting firms, BCG Attorney Search operates as a career partner, not just a placement service. The firm's unparalleled resources, including a team of over 150 employees, enable it to offer customized job searches, direct outreach to firms, and market intelligence that no other legal recruiting service provides. Attorneys working with Harrison and BCG gain access to hidden opportunities, real-time insights on firm hiring trends, and guidance from a team that truly understands the legal market. You can read more about how BCG Attorney Search revolutionizes legal recruiting here: The Story of BCG Attorney Search and What We Do for You.
The Most Trusted Career Advisor for Attorneys
Harrison's legal career insights are the most widely followed in the profession.
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Submit Your Resume to Work with Harrison Barnes
If you are serious about advancing your legal career and want access to the most sought-after law firm opportunities, Harrison Barnes is the most powerful recruiter to have on your side.
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With an unmatched track record of success, a vast team of over 150 dedicated employees, and a reach into every market and practice area, Harrison Barnes is the recruiter who makes career transformations happen and has the talent and resources behind him to make this happen.
A Relentless Commitment to Attorney Success
Unlike most recruiters who work with only a narrow subset of attorneys, Harrison Barnes works with lawyers at all stages of their careers, from junior associates to senior partners, in every practice area imaginable. His placements are not limited to only those with "elite" credentials-he has helped thousands of attorneys, including those who thought it was impossible to move firms, find their next great opportunity.
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A Legal Recruiter Who Changes Lives
Harrison believes that every attorney-no matter their background, law school, or previous experience-has the potential to find success in the right law firm environment. Many attorneys come to him feeling stuck in their careers, underpaid, or unsure of their next steps. Through his unique ability to identify the right opportunities, he helps attorneys transform their careers in ways they never thought possible.
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Harrison's reach, experience, and proven results make him the best legal recruiter in the industry. Don't settle for an average recruiter-work with the one who has changed the careers of thousands of attorneys and can do the same for you.
About BCG Attorney Search
BCG Attorney Search matches attorneys and law firms with unparalleled expertise and drive, while achieving results. Known globally for its success in locating and placing attorneys in law firms of all sizes, BCG Attorney Search has placed thousands of attorneys in law firms in thousands of different law firms around the country. Unlike other legal placement firms, BCG Attorney Search brings massive resources of over 150 employees to its placement efforts locating positions and opportunities its competitors simply cannot. Every legal recruiter at BCG Attorney Search is a former successful attorney who attended a top law school, worked in top law firms and brought massive drive and commitment to their work. BCG Attorney Search legal recruiters take your legal career seriously and understand attorneys. For more information, please visit www.BCGSearch.com.
Harrison Barnes does a weekly free webinar with live Q&A for attorneys and law students each Wednesday at 10:00 am PST. You can attend anonymously and ask questions about your career, this article, or any other legal career-related topics. You can sign up for the weekly webinar here: Register on Zoom
Harrison also does a weekly free webinar with live Q&A for law firms, companies, and others who hire attorneys each Wednesday at 10:00 am PST. You can sign up for the weekly webinar here: Register on Zoom
You can browse a list of past webinars here: Webinar Replays
You can also listen to Harrison Barnes Podcasts here: Attorney Career Advice Podcasts
You can also read Harrison Barnes' articles and books here: Harrison's Perspectives
Harrison Barnes is the legal profession's mentor and may be the only person in your legal career who will tell you why you are not reaching your full potential and what you really need to do to grow as an attorney--regardless of how much it hurts. If you prefer truth to stagnation, growth to comfort, and actionable ideas instead of fluffy concepts, you and Harrison will get along just fine. If, however, you want to stay where you are, talk about your past successes, and feel comfortable, Harrison is not for you.
Truly great mentors are like parents, doctors, therapists, spiritual figures, and others because in order to help you they need to expose you to pain and expose your weaknesses. But suppose you act on the advice and pain created by a mentor. In that case, you will become better: a better attorney, better employees, a better boss, know where you are going, and appreciate where you have been--you will hopefully also become a happier and better person. As you learn from Harrison, he hopes he will become your mentor.
To read more career and life advice articles visit Harrison's personal blog.
