From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Tuesday, 6 December 2016

(Belatedly) remembering Raymond Niro, the most influential person in patent litigation whom you may have never heard of


In August, 2016, one of the most influential persons in modern patent litigation, Raymond Niro, passed away at the age of 73. It has taken IPKat some time to properly recall Mr. Niro, but as we approach the end of 2016, it is appropriate to do so now. Some (indeed many) Kat readers may not recognize Mr. Niro’s name, but are likely familiar with the moniker that, according to many accounts, was bestowed upon him by an assistant general counsel of Intel. That nickname was "patent troll”, a term that has become a central part of contemporary IP parlance. If there is one person who is most directly identified with the phenomenon, known in a more anodyne fashion as NPE (non-practicing enterprise) or PAE (patent assertion entities), it was Mr. Niro. Vilified, condemned, or worse; admired, revered or even more; probably no person in contemporary IP practice was more divisively viewed than Mr. Niro.

IPKat does not intend to address the debate over NPE’s, PAE's and the like, which has been voiced many times on this blog site, and the arguments over which will surely continue to rage on for the foreseeable future. The intention of IPKat is modest and personal—to briefly recount the life of the person who changed the way that patent litigation is perceived and practiced.

Born to Italian parents in Pittsburgh (ironically, perhaps, he died while visiting the island of Capri in Italy), Mr. Niro studied chemical engineering, worked for a time at Shell Oil as an engineer before taking a position at DuPont, where he wrote patents. Like so many patent practitioners of his time, he studied law at night at George Washington University. (This Kat can only hope that one or more graduates of this program will yet share in writing their memories of that experience.) After completing his studies, he moved to Chicago in 1969 to join the IP firm now known as Brinks Gilson & Lione. In 1976, he left the firm to set up a law office with Gerard Hosier. There, they came up with what is described as a “novel” form of client representation at the time—contingency representation of small inventors in patent litigation cases. In 1994, he and Mr. Hosier parted ways and Mr. Niro set up a law firm bearing his name.

Mr. Niro’s courtroom skills were legendary, and he is said to have possessed special skills in cross-examination and being able to connect with the jury. He was a reported master at focusing the case before the jury on the (small, aggrieved) inventor rather than the invention. It is reported that he was victorious in 20 jury verdicts in a row, generating awards in excess of $400 million dollars (reportedly, he set his fee at between 35%-45% of the gross revenues received.) In addition to his court room victories, there were numerous settlements reached after the mere receipt of a cease and desist letter from his office.

Mr. Niro never seemed to waiver from his declared commitment to representing the small inventor. His son Dean is quoted in the Chicago Tribune as saying that his late father—
"…. loved the small inventor and was the champion of the little guy. He was never happier than when he was meeting with the individual inventor, and when he represented those people, it meant more to him than you could imagine."
Mr. Niro apparently enjoyed substantial financial success in his practice. He endowed the Niro Distinguished Intellectual Property Lecturer and Raymond P. Niro Professor of Intellectual Property Law at the College of Law at DePaul University.

Over the last decade, a number of factors have made it more challenging for patent plaintiffs, including the America Invents Act, U.S. Supreme Court decisions on patentability and fee shifting, and appellate court decisions on patent damages. President Obama himself called out against the practice of patent assertion entities. Debate will continue on the pros and cons; Kat readers are invited to reach their own conclusions. What is undeniable is that during his career Mr. Niro exerted a towering influence over the practice of patent litigation.

For more on Mr. Niro, see here and here.

Photo from Chicago Tribune (Family photo / Handout)

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