Few US law firms have broken into the European patent litigation business. Yet Kirkland & Ellis and Quinn Emanuel Urquhart & Sullivan stand out among the numbers which have tried due to their success. While other US firms have found it difficult to gain a foothold in Europe and its patent markets, the strategies of Kirkland and Quinn Emanuel are as simple as they are lucrative.
15 October 2021 by Mathieu Klos
Nicola Dagg of Kirkland & Ellis’ London office, and Quinn Emanuel Urquhart & Sullivan’s Marcus Grosch, share roots. For three years, the two – both now partners at their respective firms – worked together at Allen & Overy as young, up-and-coming patent litigators. Competitors cautiously regard both as “strong characters”. Above all, over several years, both Dagg and Grosch have earned their place in the exclusive circle of leading European patent litigators.
But this is where the similarities between them end. Hiring the two market-renowned partners was a clever move on the part of both Kirkland and Quinn Emanuel in their bid to conquer the European market.
As the launch of the Unified Patent Court is once again within reach, the appetite among US law firms for European patent litigation business grows. In recent years, some US heavyweights have successfully established IP teams in Europe. Thanks to their excellent US clients, this list includes Jones Day, McDermott Will & Emery, WilmerHale and DLA Piper, among others.
Wilmer Hale, with its small team in London, stands out for representing Apple in numerous lawsuits before the UK High Court. Since the 2000s, Jones Day has patiently built a pan-European team of patent attorneys and litigators in Germany, France and London.
Furthermore, DLA Piper has developed a well-positioned German team in mobile communications and life sciences litigation. The firm recently strengthened the London office through lateral hires.
So far, other US law firms have failed to lure litigators in Europe who are willing to jump ship. Latham & Watkins and Morrison & Foerster, for example, are still searching. Other major US IP outfits such as Finnegan Henderson Farabow Garrett & Dunner, Fish & Richardson and Gibson Dunn & Crutcher have found it very difficult to gain a foothold in Europe.
As such, the presence of Quinn Emanuel Urquhart & Sullivan and Kirkland & Ellis in commercially important pan-European patent battles is unmatched by any other US firm in Europe. But both firms have followed a simple model. Firstly, hire an outstanding litigator; then, give the lead partner a lot of freedom in building a team of young partners.
Between 2007 and 2010, Marcus Grosch built up the German patent practice for Allen & Overy. It was to serve as the practice’s central pillar in continental Europe, including for the UPC. At the time, plans for the court were well underway. Grosch was already regarded as an outstanding talent in the German patent litigation market. Like Dagg, the market considered him a strong rainmaker.
Then, when Grosch opened the first German office for Quinn Emanuel Urquhart & Sullivan in Mannheim in 2010, he cemented this reputation. With offices in Munich, Hamburg and Stuttgart following in quick succession, Grosch quickly built a highly-profitable German litigation practice. Now the team is a market leader in Germany.
Since its inception, Quinn Emanuel’s German patent team has grown rapidly from eight lawyers, with Grosch as the only partner, to 37 lawyers. This includes five partners. In the early years, the firm’s most important client was Google. Quinn Emanuel was very active for Google in the smartphone wars of the early 2010s.
From Allen & Overy, Grosch brought connections to Motorola Mobilities, whose patent Google bought. It was the US partners who brought direct contact to Google.
Now, although Google also works with Hogan Lovells, it remains Quinn’s most important client in the German practice. However, the connected cars lawsuits brought by Nokia, Sharp and Conversant in Germany mean that, for the past three years, Quinn Emanuel has been active primarily for Daimler. These two flagship clients represent the German team’s strong focus on SEP and FRAND cases in the mobile communications sector.
Such clients are also highly lucrative. With a turnover per fee earner of just over €1 million, the Quinn Emanuel litigation team is among the top six law firms in Germany. Only M&A law firms such as Sullivan & Cromwell, or Weil Gotshal & Manges, make it to these heights. In 2020, Quinn Emanuel’s 44 German lawyers working on litigation generated €47.2 million. No other litigation team in Germany has ever been as economically successful.
But the addition of other renowned partners was an important step to reduce the focus on litigation star Marcus Grosch.
In the early years, Quinn Emanuel established Johannes Bukow as the team’s second German partner. But intensive work for Daimler enabled the next generation around Jérôme Kommer and Jesko Preuß to operate more visibly in the market. Now the firm has elevated both to the partnership.
This move gave the patent practice the freedom to conduct several complex mobile communications cases in parallel. It also allowed Quinn Emanuel to eliminate the blind spot in the German practice’s clientele. For many years, Quinn Emanuel was not particularly visible in pharma litigation.
However, the firm has changed this over the past three years, as demonstrated by its work for Merck.
Marcus Grosch is convinced that he made the right move with Quinn Emanuel. He says, “For me, US law firms have two decisive advantages in many cases over European law firms, be it a boutique or an internationally-positioned law firm with a large IP team. US firms have a very pragmatic approach, which makes it easier to develop business.”
Grosch’s team relies on the combination of a bona fide stand-alone business with clients like Daimler and a strong US network. Grosch says, “In addition, US firms tend to provide better access to the US technology scene on the West Coast and to other dynamic sectors of the American economy.”
He particularly appreciates the extensive freedom the firm gives to the team, especially when it is profitable. “Quinn Emanuel has very low key management. Here, like me, people believe in a decentralised setup. Only the decisions that are really necessary for the business are made centrally. I’m a firm believer in general that top lawyers don’t need to be managed.”
“I’m also a firm believer in general that top lawyers don’t need to be managed”
The international partnership prescribes few guidelines to the German practice because its business is fruitful, says Grosch.
Opening an office in Stuttgart, for example, was not a foregone conclusion. But the German team quickly found backing among the partnership for an additional office near Daimler’s headquarters. Now, not even other German market leaders maintain as many offices as the US firm.
Quinn Emanuel also wants to play a leading role at the UPC. But the firm is taking a wait-and-see approach, with a presence in only a few UPC locations so far.
Marcus Grosch says, “We can provide clients on both sides of the Atlantic with the same high quality of litigators, and show that we can handle global patent cases.” He does not want to dilute this quality with lateral hires in other European countries, even if the launch of the UPC is likely again.
Grosch says, “Laterals have to be a 100% fit in terms of quality, and also in terms of economic success. Otherwise, we’d rather not go there.” He plays a key role in shaping the firm’s strategy in Europe, unperturbed by his firm having no significant patent litigation experts in other European jurisdictions.
“It’s not important to be present at every UPC location. What matters is the quality of the lawyers,” he says. “We have already proven countless times with our German capacities that we can successfully conduct large EPO proceedings as lead counsel, also in English and in The Hague. Why not large UPC cases as well?”
In London, Grosch makes no secret that he would like to see litigators with patent experience. “But only if he or she is the right fit.”
Kirkland & Ellis is much broader than pure litigation firm Quinn Emanuel, although it still boasts a reputation as one of the US’ top patent litigation firms. However, Kirkland has only been active in the European patent market since hiring Nicola Dagg in 2018.
In a surprising move, Nicola Dagg joined Kirkland & Ellis at this time with four young litigators. Since 2006, Dagg had built Allen & Overy’s patent practice into one of the most visible litigation teams in London. As a patent litigator, clients and competitors regard her very highly. But competitors also enjoy the competition against a tough opponent and what other London lawyers describe as a “gifted rainmaker”.
Over the last three years, the US firm has caused quite a stir in London. This is not least because the team around Dagg has quickly grown from five to 20 patent litigators, with a six-strong partnership. Its latest new partner is Peter Pereira, who the firm appointed just this month.
Nicola Dagg says, “We’ve had a fantastic year with Kirkland & Ellis. We are now one of the largest patent litigation practices in the London market with 18 lawyers. We have a very significant share of the top cases in the London patent courts, and we are also at the top in terms of the volume of patent litigation.”
Dagg and the other five partners emphasise that Kirkland & Ellis is a very entrepreneurial place to work, as well as an excellent platform for developing business.
She says, “Kirkland is a powerhouse for IP litigation. Instructions like Autostore vs. Ocado, where we develop and implement a global litigation strategy together with our US partners, would be difficult for us to handle at a purely European firm.”
However, the global dispute for Autostore over warehouse automation systems is by no means the only patent battle in which the Kirkland team has impressed. For British American Tobacco (BAT), it litigates against the company’s biggest competitor Philip Morris over e-cigarette technology. Furthermore, the team acted for Pfizer back in its Allen & Overy days in the epic battle against generic drug manufacturers over pregabalin.
Recently, the firm has represented Chinese mobile phone companies, such as Lenovo, TCL and Xiaomi, in communications disputes.
While Kirkland predominantly handles proceedings before the UK patent courts, work for Samsung in the global dispute with Ericsson over mobile phone licences in early 2021 also shows the kind of business the Kirkland team is going after. Namely, the coordination and strategic support of global patent battles.
With such global patent work mostly ending up in London, many German patent partners are hoping this will change with the UPC. Of course, it is common knowledge that London will play no role. However, Nicola Dagg is not worried.
She says, “We see the challenges that the UPC will bring to patent law firms in Europe. But we always follow the needs of our clients, and we will respond with what they expect from us in relation to the new court quickly.”
“The priority for us at the moment is to continue to grow in order to be able to perform at the highest level,” she adds.
Meanwhile, on the continent, Kirkland often works with IP boutiques. For BAT and Alcon, for example, the firm works closely with Vossius & Partner in Germany. For Autostore, the Kirkland lawyers are active alongside Arnold Ruess.
In its work for Xiaomi, the practice teams up with Brinkhof, as well as the international team of Simmons & Simmons.
Kirkland partner Steven Baldwin says, “By moving to Kirkland & Ellis, we are now much freer to look for partner firms in other countries for a given international case. Our network in Europe has expanded tremendously.”
Another Kirkland partner, Katie Coltart, says, “Kirkland & Ellis is known in the market for a never-give-up, hard-working litigation style”. Here, Coltart is referring in particular to the firm’s approach in constantly breaking new legal ground.
She says, “Pushing the boundaries of the law is strongly embedded in the culture here, as is devising case theories and new strategies for clients and doing everything possible to implement what is best for the client.”
“Kirkland & Ellis is known in the market for a never-give-up, hard-working litigation style”
However, several London IP firms felt that Kirkland’s sudden market entry was “very aggressive”. Clearly, the team around Nicola Dagg is aiming for the top of the market, and that Dagg and her young partners would fight hard for market share was plain to many from the start. This is even with, as some competitors claim, competitive pricing. After all, Dagg had already built up a highly-renowned team for Allen & Overy.
Now, many London patent litigators admit that Kirkland & Ellis is leaving an impressive mark on the London market. Primarily, this is because of the quality of its instructions. However, some say this is not enough to put top dogs Bristows and Powell Gilbert under pressure. Perhaps, the market suggests, this is due to less visibility of the younger partners behind Nicola Dagg.
Kirkland’s up-and-coming young partners are currently developing a stronger presence in the market, largely handling major cases alone. For example, Katie Coltart works for Meril Life Sciences, with Steven Baldwin acting for Xiaomi. Newly-made partner Peter Pereira is in the front seat for Autostore against Ocado. Additionally, Daniel Lim represents Alcon, with Jin Ooi driving the so-far successful litgiation for BAT and Pfizer.
Clearly, another of Dagg’s strengths is providing a platform for up-and-coming talent. If such high-profile clients continue to roll across the Atlantic to London, it is only a matter of time before the younger partners become as synonymous with Kirkland as Nicola Dagg.
Litigators of Nicola Dagg’s or Marcus Grosch’s calibre are not a dime a dozen in Europe. Attracting such litigators to change firms is also inherently complex. Many leading partners in France, Germany, Italy and the Netherlands are extremely unwilling to move, with the situation no different in London.
On the other hand, many European patent teams harbor young and hungry senior associates, counsel or junior partners. This is mainly true of large, internationally-positioned law firms such as Bird & Bird or Hogan Lovells in London. In Europe, this pattern emerges at national full-service law firms such as Hengeler Mueller in Germany, or De Brauw Blackstone Westbroek in the Netherlands.
Traditionally, there is no endless stream of partner prospects at such firms. However, all firms train their junior staff excellently in patent litigation – a notion on which other US law firms could build. Nicola Dagg and Marcus Grosch demonstrate how much the development of a firm can depend on impressive individual laterals.