A Blackbird in Many Forms

You might recall a few months ago I wrote about Blackbird Technologies, an NPE with a novel approach to patent litigation.  Blackbird is a company owned by lawyers.  It buys patents from patent owners, apparently with a share of any litigation wins flowing back to the owner.  The lawyers who own Blackbird also litigate the cases.  This, as I noted, creates some ethical and practical issues.  

It looks like other people have also taken a look at Blackbird, and decided that that business model is one they might want to imitate.  

Blackbird—BIRDIE PATENTS LLC

Amit Agarwal used to work at a large law firm, Irell and Manella.  (So did Blackbird’s co-founders, though they had worked at their respective firms for quite a bit longer.)  He left the firm and began to buy patents and assert them.  (Sounds familiar.)  In at least one instance, he’s promised the inventors that they’ll get 50% of any litigation proceeds.  (Blackbird has a “similar arrangement.”)  He’s the one filing and handling the cases.  (Very Blackbird-ian.)  And he even has a bird-named patent holding company, Birdie Patents LLC.

So, we’ve got something that looks very, very similar to Blackbird in terms of structure.  How about in terms of operation?

Blackbird—SR-71

So far, I count 6 cases filed by Mr. Agarwal in the few months he’s been in operation.  A pretty solid pace!

The SR-71 Blackbird, of course, was one of the fastest things in the air.

Agarwal’s cases appear to be filed against relatively small businesses, and (at least so far) none of these cases has gone very far.  One was stayed pending an IPR, which was recently instituted.  All but two have been dismissed before any significant progress in the case, often by Mr. Agarwal.  This kind of pattern of behavior is common amongst NPEs.  For example, one NPE (Shipping & Transit) was ordered to pay attorney’s fees in part due to a pattern of behavior including “repeatedly dismiss[ing] its own lawsuits to evade a ruling on the merits and yet persist[ing] in filing new lawsuits advancing the same claims.”

Blackbird—The Mill Edition

In addition to the practical considerations with the Blackbird model, people have identified some potential ethical considerations.  Issues like fee splitting with non-lawyers are a potential problem for the Blackbird model.  But there are some other considerations as well.

There’s another Blackbird out there.  This one is a car that can be used to create CGI footage of any car you want.  Why do I mention that?

Well.  Lawyers, generally speaking, are barred in specific states.  For example, I’m currently barred in New York and in the District of Columbia.  This means that I can practice law in those states, file in the federal courts in those states, etc.  If I were to be involved in a case in the Eastern District of Texas, I could associate with a Texas lawyer (local counsel) and ask the judge for permission to appear in his court.  (Or become admitted to the Eastern District of Texas.)  Metaphorically, I gotta buy a Texas car, and new cars are expensive.  In some courts (though not E.D. Texas), I’d be required to hire local counsel or become admitted to the state bar. 

The other possibility is that, if I was representing myself, I could file on my own behalf (pro se).  When you file on your own behalf, you don’t need to be admitted to the bar—anyone can represent themselves (though it’s usually not a great idea.)  And Mr. Agarwal has filed pro se in several cases, allowing him to obviate any need to hire local counsel.  In my car metaphor, he can just slap some cheap Texas plates onto his car and he’s good to go.

This makes it a lot cheaper to file cases—no need to hire local counsel means no need to pay local counsel.  Which, in turn, makes filing lots of cases a more favorable proposition.

Blackbird or Black Sheep?

I’ll close out with something that Agarwal himself appears to have written.

This is my game. I think I am really, really good at this. I sincerely believe that. I am so comfortable with the subject matter. I understand what’s involved here. I just need reps. I need to buy more patents. I need to do this more often.

(Emphasis added.)

As lawyers, we should figure out if that’s how we want our profession to work.

Joshua Landau

Joshua Landau is the Patent Counsel at the Computer & Communications Industry Association (CCIA), where he represents and advises the association regarding patent issues.  Mr. Landau joined CCIA from WilmerHale in 2017, where he represented clients in patent litigation, counseling, and prosecution, including trials in both district courts and before the PTAB.

Prior to his time at WilmerHale, Mr. Landau was a Legal Fellow on Senator Al Franken’s Judiciary staff, focusing on privacy and technology issues.  Mr. Landau received his J.D. from Georgetown University Law Center and his B.S.E.E. from the University of Michigan.  Before law school, he spent several years as an automotive engineer, during which time he co-invented technology leading to U.S. Patent No. 6,934,140.

Follow @PatentJosh on Twitter.