By Xenia P. Kobylarz
IP Law & Business/January 2008

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It was hailed as the "Battle of the Sweeteners" in headlines. The companies that make Equal and Splenda squared off in a Philadelphia courtroom over Splenda's slogan, "Made from sugar, so it tastes like sugar." Merisant Worldwide, Inc., the maker of Equal, tapped 37-year-old Kirkland & Ellis partner Gregg LoCascio to lead the trial team seeking to prove that its rival's tagline was misleading. By all accounts, LoCascio's cross-examination of key witnesses from Splenda's maker, Johnson & Johnson subsidiary McNeil Nutritionals, LLC, had set his client up for victory. But the two companies settled confidentially just as jurors asked for a whiteboard and a calculator to compute damages. Though details of the settlement remain confidential, Merisant's top in-house lawyer is free to praise the Kirkland team's efforts. "Kirkland put together a team of young, energetic, and creative lawyers," says Merisant general counsel Jonathan Cole. "When you compare their results against their ages, it speaks volumes."

Kirkland has a crew of partners under 50 who can lead litigation. Los Angeles partner Luke Dauchot, 46, won a $226.3 million jury verdict for clients in a case involving spinal screws. Gregory Arovas, 40, helped win an ITC case for Samsung Electronics Co., Ltd. and Motorola, Inc. LoCascio argued an appeal before the U.S. Court of Appeals for the Federal Circuit on behalf of Siemens Corporation and others affirming a noninfringement judgment on optical scanners used by the U.S. Postal Service. For all the success achieved by youth, though, in the last year IP veterans William Streff, Jr., 58, and Robert Krupka, 58, scored impressive Markman hearing results for clients Denso Corporation and Limelight Networks, Inc., respectively.

Kirkland emphasizes courtroom skills early through the firm's trial advocacy training program, which pits teams of two or three associates against each other annually in two-day mock trials. "It's as close to a real-world situation as you can get," says senior assoÂciate Jeanne Heffernan, who has already questioned six witnesses at real hearings and trials.

In some instances, Kirkland's fresh faces have been a selling point. "[Youth] makes a difference when they are pulling all-nighters prepping for trial," says Kevin Conroy, CEO of Kirkland client Third Wave Technologies, Inc. In a case involving a Third Wave molecular diagnostic product that had generated only $236,000 in sales at the time of trial in Wisconsin, Chicago partner Mark Pals, 47, who has a Ph.D. in biophysics, won a jury verdict of $5 million that Judge Barbara Crabb subsequently tripled. Crabb also awarded Third Wave attorneys' fees, no small victory in a Kirkland case. (The case ultimately settled for a total of $10.75 million.) "I'd say, without hyperbole, there is not a smarter IP litigator than Mark Pals," says Third Wave's Conroy.

New York partner John Desmarais, 44, protected Lexapro, the big revenue generator for Forest Laboratories, Inc., from the attack of Teva Pharmaceutical. In September the Federal Circuit upheld the victory. Desmarais also won a defense victory for Charter Communications, Inc., against Hybrid Patents Inc. in a case involving potential damages of $176 million. Kirill Abramov, in-house IP counsel at Charter, says it seemed as though jurors "sat up in their chairs" every time Desmarais got up to speak.

But not everything went Kirkland's way. Chicago partner Pals suffered a loss on behalf of gene chip maker Illumina, Inc. in a patent battle with Affymetrix Inc. In an infringement trial a Delaware jury found that Illumina owed Affymetrix $16.7 million and a 15 percent royalty on certain gene chips. But the game isn't over yet: The judge has divided the proceeding in three, and the validity trial starts in February. A third trial on willfulness is set to follow.

Desmarais was at the wheel for Kirkland's biggest recent disappointment. In August federal district court judge Rudi BrewÂster overturned the $1.5 billion judgment against Microsoft Corporation that Desmarais had won for Lucent Technologies Inc. in February, the first of three related trials. (Lucent is appealing.) Brewster is moving toward retirement, so Desmarais will get to try the next Lucent case before a different judge.

Second chances: another advantage of youth.

Kirkland & Ellis
Practice group size: 235
Partners: 89
Associates: 141
Counsel: 5
Practice group as percent of firm: 19%
Estimated percent of firm revenue 2007: 18%

On the docket: Desmarais is representing GlaxoSmithKline in a challenge to changes in the PTO's rules governing patent prosecution. Pals is gearing up for a second trial on behalf of Illumina, Inc. against Affymetrix Inc.