Q&A With Nagendra “Nick” Setty

Does ‘Nagendra’ mean anything?

Yes. My father was a doctor in India when he did his residency in a village, because that’s where you’d have the most acute need for primary care. This is back in the ’60s. One day my mother came into the bedroom—he had been working all night and was sleeping—and she saw a snake below the bed. And she freaked out and ran out and got the servant, who came back with her. En route, as any devout Indian woman might, she said a little prayer for her husband. And when they came back and couldn’t find the snake and yadda yadda, she decided she wanted to name her first-born son after the Indian god of snakes, which is Naga. And Indra is one of the three primary Indian deities in mythology: the creator, the destroyer of evil, and the protector: Brahma, Vishnu, Shiva. Indra is one of the names for Brahma. So there you go. Nagendra.

As I understand it, you were nearly Dr. Nagendra Setty.

My dad was a med-school professor, so as a deal with my father I went to med school for a year. I did fine in school—I was president of my class—I just didn’t have the calling. I’ve always liked science and math but I think you have to have a certain love for the actual practice of medicine to do it, and to do it in a way that’s devoted. In the way I saw my father do it.

So I took a year off and lived in Vail and skied 130 days and took the LSATs in Boulder.

Do you have siblings?

Two older sisters. One is in the Bay area and has a child. The other is 10 years older than me and started a bit earlier on kids, so my niece and nephew are all grown and both actually out of medical school. So there you go: More doctors.

How many doctors in your family?

In my extended family it’s everyone but my sisters and me: My older sister’s a psychologist. Close enough, right?

But it’s more than that. It’s cousins, aunts, uncles. I’ve got two cousins right now who are both doing their residencies at Washington University. I can probably count 10 people in my more immediate family who are practicing physicians. It’s just the way it is if you came out of India in that era. In the ’60s and early ’70s the immigration policies in the U.S. were such that only doctors and engineers really got immigration into the U.S., because that’s what we needed in this country. And that’s what the U.S. drained from a lot of Asian nations as a result—the so-called “brain drain.”

Was there pressure on you to become a doctor?

Oh, absolutely. My father said: “Why wouldn’t you go to medical school if you get into medical school? What is wrong with you?”

And your parents’ reaction when you became a ski bum?

There were discussions about whether I needed psychiatric care. There were discussions about whether I was throwing my life away. There were discussions about why we ever moved to this country with such influences here. Seriously.

That conflict seems very first-generation American.

Absolutely. I’m on this Asian bar association, NASABA, National Association of South Asian Bar Association, and we talk about it all the time.

Why the law?

One of the things I enjoyed was public speaking. I felt very comfortable on my feet and thought I wanted to be a trial lawyer.

Were you ever interested in med-mal?

No. In terms of sensitivities at home, it’s too close to the border of what doctors hate the most.

Close to the border? Even if you’re defending the border?

Let me put it this way. The perception many doctors hold is that those cases are frivolous, period. And one of the sources of frustration they have is when the insurance company settles—which is entirely its right to do, since it technically owns the exposure—but they settle and there’s no sense of vindication that comes out of that.

So why IP litigation?

When I got to law school, professors were mentioning the field of patent law or intellectual property. When I investigated it I found that some of the more interesting legal issues involved science and law.

What should society want in terms of coverage for genetics? Or protection for software? How broad should those protections be?

Through persistence I ended up working for a [patent and copyright law firm] during my second year of law school. At the beginning of my third year, the case I’d worked on was going to trial, and the professor/trial lawyer who was my mentor at the time, Larry Nodine, asked if I wanted to stay and do the whole trial with him. Then I was hooked. In the middle of trial there was a directed-verdict issue—nowadays called judgment as a matter of law—and I was the guy who stayed up all night briefing it so that Larry could get the briefs in the morning and argue it. And it was successful and we won. It was the biggest thrill I’d had professionally.

What area of IP are you most involved in?

It depends on the day. The Atlanta market is heavily skewed toward telecom, electronics, software, and given that I’ve practiced here for my whole career, I’ve had to—as the guys on my team joke around—get an honorary EE in the process. Electrical engineering degree. Because almost everyone on my team here is computer science or electrical engineering or some other related discipline.

But my original background is biochemistry and I’ve done a lot of related pharmaceutical matters as well.

How often do your cases wind up in court?

All of them end up in court for the so-called Markman hearings. If you go back to 1996, the Supreme Court was trying to decide this issue: If there’s a dispute as to the meaning of language in a patent, should the judge or a jury decide? The Court decided that if there’s an interpretive issue where two people are fighting about what a particular term in a patent means, and that issue ends up affecting the scope of the patent, then it’s something a judge should do. And that case was called Markman v. Westview.

So every patent case has a Markman hearing. It’s probably the pivotal point of the case. If the plaintiff wins and gets a broader construction, then the case will likely go to trial. If the defendant wins and gets a narrower construction, they probably file a summary judgment motion, typically on non-infringement.

A smaller percentage [of patent cases]—somewhere around 4 percent—make it all the way to trial.

Are you a plaintiff or defense lawyer mostly?

Well, roughly 3,000 patent cases are filed every year, and at least two-thirds of those, if not more, are the so-called non-practicing entity cases: the NPEs. That means a company that isn’t practicing the technology, that has acquired some patents, is suing folks that are market participants. So on those cases, the smaller, more contingent-fee-oriented firms are doing the plaintiff’s work, and we—meaning the top 20 or 30 or 50 law firms doing patent litigation—are doing the defense work.

Then you have true competitor cases. I have one of the largest LCD cases in the country for LG [Electronics]. The defendants are many different large manufacturers of LCD TVs, where LG is alleging that these folks have taken some of their technologies. That’s a case where I’m plaintiff’s counsel but you would not really call it a plaintiff’s case, because the plaintiff is a multinational corporation asserting its rights against other multinational corporations. It doesn’t feel like little guy vs. big guy.

And has your practice been affected by the current recession?

I still have the same volume of the non-practicing entity cases; I have very little in terms of competitor cases. And I think the reason is if you’re Company A and you have a technology dispute with Company B, and you’re both well-heeled multinationals, you’re more likely to resolve that differently. Or put it on the side-burner and not spend money on it today.

Apparently you’ve won all but one of your jury trials. What was the one?

It was a trial in Maryland in … 1999? We represented a Hitachi subsidiary and were feeling great trepidation when every one of the plaintiff’s witnesses started with, you know, where they went to high school there in “Balmer.” It ended up going just like that. We had the Japanese client, they had the Maryland-based, everyone-went-to-high-school-in-Baltimore client. And the jury was out, after a two-week trial, for two hours. It wasn’t the best experience. Worse yet, it was affirmed on appeal.

Tell us about starting Fish & Richardson’s Atlanta office.

We shared a client and met through that. The in-house attorney [at the company] ended up introducing us, and, through a series of steps, I ended up in a conference room in New York with the Fish & Richardson management committee. The fit was, I think, immediately apparent to both sides, and within a month we were working on plans for the office. We started those discussions in October 2005. By January 2006 we opened the office. With four attorneys and my secretary of 11 years. Now here we are in 2009, and it’s a 30-lawyer office.

What about IP litigation might surprise lawyers in other practice areas?

When I’m assessing or describing the risks associated with a case, I’m talking about not just the business and legal implications but the science and technology. That’s a vocabulary most lawyers don’t have.

And this is the fun part: Then I get to explain it to judges and juries. So you’ve got to bring it all back down to earth. If you can do that well, frankly I think you’re going to be a real strong IP litigator.