JUVE Comment

The patent litigation team at the London office of international firm Kirkland & Ellis continues to consolidate its strong market presence with impressive client wins, as well as retaining instructions from high-profile clients. A highlight for the practice was its work at the UK Supreme Court, where it represented Regeneron against Kymab in a dispute over transgenic mouse technology. The case indicates the aptitude of a team only formed in the past two years – some of whom have already been promoted to the Kirkland & Ellis partnership. It also demonstrates how the practice is standing toe-to-toe with some of the more established firms in the UK patent market.

While pharmaceutical patent litigation is historically a strength of figurehead Nicola Dagg – “she is a huge presence in the market“, says a competitor – as well as her young team, Kirkland’s litigators have now become omnipresent in mobile communication disputes. Last year, Kirkland gained client Xiaomi for a vital FRAND case against NPE IPCom. This relationship continues, with the team continuing to act for Xiaomi against NPE Sisvel and electronics giant Mitsubishi over FRAND. The team also co-ordinates the litigation across Europe, as well as being active for Xiaomi further afield in India and China, including in advice.

The team also acted for Lenovo, another Chinese tech company currently very active in the UK and Europe, over SEPs. Especially given this year’s landmark UK Supreme Court ruling on FRAND, it is vital emerging practices demonstrate strength in this area. As such in London, Kirkland’s patent team is currently in a good position to compete with market leaders Bristows and Powell Gilbert over important future SEP litigation.

The Kirkland & Ellis team also has a flexible approach, winning new clients from a variety of fields away from tech and life sciences. For example, it acts for British American Tobacco in the Europe-wide e-cigarette technology litigation against Philip Morris. The team co-ordinates the European litigation in this important case, alongside Vossius & Partner in Germany.

Most observers see the dust as having settled around Nicola Dagg’s departure from Allen & Overy two years ago, with the Kirkland team having a good start in the UK market. But if the US firm wants to win more work from clients of the calibre of Regeneron, Xiaomi and BAT – including the lucrative coordination work in Europe – the younger partners will have to gain more visibility in the market. Competitors question whether they are experienced enough to demonstrate the necessary high quality over a longer period of time. Refuting this is the primary challenge of the younger Kirkland generation.

But there are already signs that this is happening. Younger partners such as Steven Baldwin are recommended, although without a continental European team of any description it will be a tall order to challenge the market leaders. If Kirkland was to change its strategy and move onto the continent, it has the potential to be a serious contender to the UK, and European, market leaders.

Strengths

High-profile pharmaceutical cases, particularly cutting-edge technology such as gene editing (CRISPR). Advice on FRAND and technical patent issues.

European strategy

Kirkland is still refining its European cross-border coordination, relying on existing client-firm links to secure patent litigation work. It has no patent experts in continental Europe, with its patent resources concentrated largely on the US and London. This could be a detriment to the firm given its involvement in pharma and FRAND matters, which necessitate a coordinated European strategy as far as litigation is concerned. However, Kirkland is acting as coordinating counsel for advice and litigation in several European jurisdictions, in the battle over e-cigarette technology for BAT against Philip Morris. To expand this business further and also to have a foot in the door when the UPC launches from the continent, most observers think Kirkland will need to quickly establish a patent team on the continent. Especially in Germany, where the firm already has offices in Munich but no patent capacity, this would be an appropriate move. As such many competitors are certain that expansion on the continent under the leadership of Nicola Dagg is only a question of time

Recommended individuals

Nicola Dagg (“brilliant lawyer, strategic thinker”, “a huge market presence with a well-balanced team“, competitors), Steven Baldwin

Team

5 partners, 8 associates

Specialties

Patent litigation in pharmaceuticals for medicine manufacturers, emerging technology and telecommunications. Advice on patent portfolio transactions and value issues. Strategic advice on licensing projects.

Clients

Litigation: British American Tobacco (claimant) against Philip Morris and Nicoventures regarding e-cigarette technology; Pfizer against multiple defendants for damages enquiry following second medical use issue around pregabalin; Regeneron (claimant; co-counsel with Allen & Overy) against Kymab over therapeutic antibody development before the UK Supreme Court; Meril Life Sciences (defendant) against Edward Lifesciences over heart valve technology; TCL (defendant) against Philips on SEP and FRAND; Xiaomi (defendant) against Sisvel and Mitsubishi Electric over SEP and FRAND; Xiaomi against IPCom over FRAND; Lenovo (defendant) against Interdigital in SEP/FRAND licensing dispute; Alcon against Johnson & Johnson over surgical laser systems.