Nathan N. Lowenstein

Lowenstein has represented the patent owner as de facto lead counsel in more than 50 inter partes review matters and has yet to have a case in which every claim-at-issue in litigation has been canceled.

In September, the firm he co-founded, Lowenstein & Weatherwax LLP, was recognized by the IP network Patexia as achieving the highest success rate of more than 1,100 law firms in the five-year history of IPR proceedings.

“They thought we did pretty well, and I was surprised, though I knew we had a pretty good success rate,” said Lowenstein, who in 2012 with Kenneth J. Weatherwax and Perry M. Goldberg left Irell & Manella LLP to found their own IP boutique. Goldberg later moved on to establish Progress LLP.

“We had complementary skills,” Lowenstein said of his colleagues. “We thought we had the ability to handle cases on our own, and we valued independence and control.”

So far, the firm collectively has handled more than 100 IPR challenges, representing patent owners against claims brought by Facebook Inc., Google LLC, Apple Inc., Intel Corp., Samsung Group, Verizon Communications Inc., Hyundai Group, Microsoft Corp., AT&T Inc. and others.

For example, Lowenstein is lead counsel in eight IPR challenges brought by Alphabet Inc.-owned Google or Samsung Electronics Co. Ltd. against client Seven Networks LLC. Four of the eight have been terminated with no claims canceled; the others are pending. Google LLC v. Seven Networks LLC IPR2018-01051 (PTAB, Filed May 18, 2018).

“The odds are not in favor of the patent owner in most cases,” Lowenstein said. “The petitioners who bring the IPR have the strategic advantage. And the broader the scope of the patent, the easier it is to find prior art.”

Also, there are different standards of review at the Patent Trial and Appeal Board and in district court. “The patent is presumed valid in district court, but there is no presumption at PTAB,” Lowenstein said. “That’s one reason why it’s attractive for a petitioner to bring an IPR proceeding.”

Lowenstein added that his lean and tight-knit firm is equal to the task. “We exist based on our reputation and performance, and we are highly motivated to win,” he said. “We’re a very small firm — and that’s an advantage when you have people who have worked together for a long time. We have very high standards for ourselves.”

Besides, he added, the stripped-down nature of IPRs works in his favor. “Big firms don’t have a big advantage here. It doesn’t matter to me if the other side has a thousand lawyers. Big bureaucracies can be distracting. I enjoy the practice because this is lawyering stripped down to its bones.”

— John Roemer