The Lawyer Who Unfriended Facebook

Once upon a time, a patent lawsuit typically involved one company that had invented an amazing widget and another accused of purloining it. These days, the plaintiff is more likely to be a troll.

“[They] do nothing but buy up patents, then try to enforce those patents and extract money from defendants,” says Conor Civins, a partner at the Austin office of Pillsbury Winthrop Shaw Pittman who often defends global companies against trolls, otherwise known as nonpracticing entities.

Although he also handles plaintiff’s cases, he doesn’t represent NPEs. “We do plaintiff’s work for big companies like Microsoft that actually have invented things, have products, or have acquired the patents along the way.”

That would not be the case for patent trolls, about whom comedian John Oliver said on Last Week Tonight, “Calling them trolls is a little misleading. At least trolls actually do something. They control bridge access for goats and ask people fun riddles.”

In one recent case, Civins helped defend Hewlett Packard against claims by an NPE called Innovatio that owned more than 20 patents in the wireless-technology area.

“Innovatio sued hundreds of companies, but started first with small hotel chains that were end users of products like wireless routers. Then the companies that manufactured or sold the accused [parties’] products—like Cisco, Motorola and HP—stepped in to address the patent allegations. In dollar terms, there was collectively more than a billion dollars at stake,” Civins says.

The suit was watched closely by the patent bar because it was all about RAND (reasonable and nondiscriminatory) rates for licensing patents, which have become a hot-button topic in the intellectual property world. “This was only the second time in history when a judge had to determine a RAND rate,” Civins says. Basically, the judge decided that Innovatio was demanding substantially more money than the patent royalties were worth. “This eviscerated Innovatio’s damages case,” Civins explains. It was also the first time a judge had to decide which patent claims qualified as “essential” to an industry standard, meaning they would fall under RAND guidelines.

One might think all patent lawyers must have technical backgrounds, but Civins more or less fell into the field. “I’ve always wanted to be a litigator, so, out of law school, I did commercial litigation with Vinson & Elkins in Dallas. But eventually I wanted to come back to Austin, where I grew up.”

In 2005, Fish & Richardson’s Austin office hired him, and the firm focuses on intellectual property litigation, including patents, trademark, trade secrets and copyright law.

“I was essentially thrown into the deep end, doing sophisticated, top-end IP litigation for clients like Microsoft and XM Radio. You have to learn on the job, like drinking from a fire hose,” Civins says.

After Fish & Richardson closed its Austin office, Civins started a practice with three other partners from that firm, then he moved to Bracewell & Giuliani. He made a name for himself by representing Lamebook, an Austin Internet company that compiles funny and shocking posts from Facebook.

“Facebook claimed that Lamebook had infringed Facebook’s trademark,” Civins says. “We argued that Lamebook was a parody, but we couldn’t get things worked out, so Lamebook sought a judgment in its hometown of Austin that it was protected under the First Amendment and it was not infringing Facebook’s trademarks.

“It was a gutsy move for my clients to take on Facebook. There were intense communications back and forth, but ultimately the two companies resolved the dispute amicably, with Lamebook continuing to operate.” Lamebook agreed to add a disclaimer to its website saying it’s an unofficial parody, not affiliated with or approved by Facebook.

“I have been working closely with Conor on a contentious case for nearly two years,” says Andy Nikolopoulos, a litigator at Fox Rothschild in Dallas. “He has a very analytical style that dissects a case into its components, and he also looks several moves into the future.”

Lawyering was likely in Civins’ genes. His father, mother and grandfather were lawyers, as is his brother. Civins graduated Phi Beta Kappa from Emory University in 1999, then took a year off before following his parents’ legacy to the University of Texas, where he received his J.D.—and started dating his wife, Mary Emma Civins. The couple have three young boys.

Civins has been an IP litigation guru for a decade; but he is still thirsty, and that fire hose is still on.

“Every case is different. If you ever think you’ve got it figured out, you’re missing something.”