Rachael Lamkin

Rachael D. Lamkin joined Baker Botts L.L.P. in June 2023 as a first chair patent litigator and strategic advisor after almost seven years flying solo at her own firm, Lamkin IP Defense.

Her now-shuttered firm's motto sums up her career goal: "Protect makers from takers." She explained, "I specialize in litigating against non-practicing entities," where she seeks to shift the dynamic that has long hampered the defense side in patent cases. Those include asymmetries in information, cost, financing and damages. Despite those negatives, Lamkin has obtained multiple attorney fee awards and settlements. In more than 100 patent litigations, she has never lost a case.

"So far," she said. "Knock on wood. Maybe I need to take on better lawyers."

A major win in 2019 illustrates her approach. Lamkin forced an active patent monetization entity not only to agree to a public injunction requiring it to permanently cease litigating in California but also to pay her $72,400 in attorney fees. Kindred Studio Illustration and Design LLC (aka True Grit) v. Electronic Communication Technology LLC, 2:18-cv-07661 (C.D. Cal., filed Aug. 31, 2018).

When ECT sent her client an infringement claim and demand letter, Lamkin shot back with a declaratory judgment suit. As U.S. Magistrate Judge Gail J. Standish of Los Angeles--herself a former top IP litigator--put it in her fee order, ECT was using "in terrorem" tactics, "threatening litigation in hopes of a quick settlement with no intention of ever testing either the strength of its patent or its allegations of infringement."

Said Lamkin, "They had a really bad case as usual, and we weren't going to let them out of it. And they knew it. One of their biggest mistakes was agreeing to let Judge Standish hear it." Standish's fee order reflected her view, and Lamkin's, that the business model of leveraging the high cost of threatened litigation to extract settlements should be deterred.

Lamkin thwarted another plaintiff tactic in her recent representation of Netflix Inc. after a Finnish inventor sued over two patents related to methods of enhancing network performance. Even before U.S. District Judge Jon S. Tigar of Oakland awarded Netflix summary judgment on standing grounds, he ordered the inventor to cease transferring assets to a Finnish entity to prevent a "shell game" designed to elude a possible attorney fee award. Netflix's fraud-based counterclaims and fee request are set for trial in September. Valjakka v. Netflix Inc., 4:22-cv-01490 (N.D. Cal., filed March 9, 2022).

"This was the first order of its kind," Lamkin said. "Litigation funders often try moving assets around. You have to think strategically. We always envision the end of the case at the very beginning."

-- John Roemer