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Research Roundup: IP Litigation Forecast from Deanna Kwong of HPE

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T he world of litigation is constantly changing. Faced with new technologies, shifting cross border legislation, and an increasing generational divide, in-house counsel practicing litigation have had to adopt new strategies to remain competitive in the global legal market. 

Deanna Kwong, IP litigation counsel for Hewlett Packard Enterprise Company (HPE), has been on the forefront of litigation for over a decade, and has worked tirelessly to stay abreast of new developments in the practice. Starting as an attorney for Covington & Burling LLP, she enjoyed the fast-paced environment of the law firm. However, she ultimately felt an overwhelming interest to focus on the business side of the law and on company strategy. In 2015, she would sign on with HPE; an opportunity that, according to Kwong, was an essential step in her career.

In recent years, however, the litigation playing field has shifted. According to the ACC Law Department Management Report, 93 percent of complex litigation is being outsourced to outside counsel. From Kwong’s perspective, this trend is to be expected in larger companies. HPE, however, is taking distinct measures to ensure that it brings more litigation cases in-house.

The company’s general counsel created the Office of General Counsel Inside Program. Modeled after summer associate arrangements in large law firms, the program is designed to give recent law school graduates substantive experience with small commercial and employment matters in-house.

“Our junior attorneys in the OGC Inside Program run cases themselves. They draft the motions, prep the witnesses, defend the depositions, attend the hearings, and argue the appeals. I think that it’s a phenomenal program that provides substantive, on the ground training in litigation,” she says.

Fostering this type of in-house growth may be more important than ever, as statistical evidence suggests that next-generation in-house counsel are becoming increasingly reticent to join the litigation field. According to the 2015 ACC Global Census, only 27 percent of respondents working with less than two years of experience reported working in litigation. This value is significantly smaller than the 35 percent of respondents working with 16-20 years who similarly reported working in the practice.

In Europe, the need for in-house litigation positions far exceeds the need in the rest of the world. According to the ACC Chief Legal Officers Europe 2015 Survey, hiring for litigation positions in Europe (nine percent) is almost double the world average (five percent). Seventy-three percent of respondents in Europe reported that litigation would be a somewhat to extremely important issue in the coming year.

Kwong believes that these values can be attributed to myriad factors, and underscores that Hewlett Packard views litigation practices in every region equally. She points to the recent proposal of the Unified Patent Court (UPC) as a possible reason for the recent European focus on litigation. If enacted, the UPC will hear patent cases for all member states in the European Union.  

While the UPC may increase patent litigation filings, global averages for patent litigation have reportedly gone down in recent years. Nineteen percent of in-house counsel have reported becoming the target of a patent troll in 2015-2016, as opposed to 24 percent in 2014-2015, according to the ACC Chief Legal Officers 2016 Survey.

Kwong, however, is unsure as to whether we can expect to see this statistic continue to decline. She argues that although some new IP procedures and case law have certainly had an effect on the proliferation of non-practicing-entities (NPEs), the trend could be cyclical.

When asked about her goals for the New Year, Kwong hopes that in-house counsel in litigation will continue to expand upon the promotion of diversity and gender inclusion. According to the 2015 ACC Global Census, 37 percent of in-house counsel working in litigation are men, as opposed to the 27 percent who are women. She believes that this disparity is even more apparent for women in positions of power.

“Litigation, and in particular patent litigation, is still a very male dominated industry,” she notes.

HPE, according to Kwong, is taking active measures to ensure that it’s a pioneer in the progression of diversity in the law.

“Diversity is something that HPE takes very seriously. With the creation of IP litigation teams, for example, we will actively make sure that our outside counsel teams are diverse. We scrutinize invoices to make sure that diverse attorneys are not just on the team to check a box, but are actually getting meaningful work,” she says.

As a global leader in litigation, Kwong has always striven to remain ahead of the curve. After working in the practice area for over 13 years, she has played a pivotal role in cementing the value of in-house litigators at both HPE and beyond. While some may argue that litigation is becoming a decreasing priority for in-house counsel, Kwong has high hopes for the future of the practice.

If you are interested in learning more about the latest developments in ACC research, visit our research portal for an exclusive look at the recently published ACC Chief Legal Officers 2017 Survey.

Comments and opinions expressed by Deanna Kwong are her personal opinions and comments and do not represent those of her employer or of ACC related to this topic and the opinions expressed. 

About the Author

Matthew Sullivan is an editorial coordinator for the Association of Corporate Counsel.

The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject addressed. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.