Dianne Elderkin Finds Her Voice

How a shy chemistry student became a commanding and record-breaking patent lawyer

Published in 2010 Pennsylvania Super Lawyers Magazine

On June 29, 2009, a Texas jury awarded Centocor Ortho Biotech Inc., a Pennsylvania subsidiary of health sciences giant Johnson & Johnson, $1.67 billion in a patent infringement case against Abbott Laboratories. It was the largest judgment of its kind in history. One would assume that the lawyer who pulled that off must be one hard-driving, scenery-chewing, take-no-prisoners type, right?

Actually, it was Dianne Elderkin.

 

The middle child of a civil engineer and a homemaker in Montville, New Jersey, Elderkin (then Dianne Brown) grew up an introvert with an affinity for the sciences. “I was always better in them than in language or arts,” says Elderkin, who recently moved over to Akin Gump Strauss Hauer & Feld from Woodcock Washburn. “I enjoyed the book learning and the theory.”

Majoring in chemistry at Bucknell University, she was planning on a career in a lab coat when she started doing fieldwork. “I had stayed on campus one summer and did research with one of my professors,” she recalls, “and he told me how appallingly bad I was at it. I thought, ‘You’re right.’ My heart wasn’t in it.”

What her heart was in was her relationship with her then-boyfriend, now-husband David. They met in physics class. “It was over an oscilloscope,” she says.

As fate would have it, David had an uncle who was a patent lawyer. “Patent law was something I’d never heard of before,” Elderkin says. She listened as he spoke about getting a chance to stay on top of advancements in various fields. “It seemed like a way I could combine my interest in science without having to do the science directly, which I wasn’t very good at,” she says. “I thought, ‘I’ve got to investigate this patent law thing.’”

After obtaining her degree in chemistry in 1975, she enrolled at George Washington University Law School, one of the few schools with a patent law program at that time. She thrived on the material but seemed an unlikely attorney.

“I was one of the quiet ones in the back of the classroom, looking down, hoping not to be called on by the professor,” she says. “I was never called on for moot court. I never saw myself going into litigation.

“That would change.”

After law school, Elderkin, who is now 56, and her husband, sought a home where they could enjoy a more rural life than Washington, D.C., offered, and moved to West Chester to raise a family (they now have two kids). From there, she commuted to work as a lawyer for DuPont, based in Delaware. She specialized in patent prosecution, working alongside scientists, liaising with the U.S. Patent and Trademark Office, and tried to obtain meaningful patent claims for the company. Through it all, she remained in a comfortable place—the background.

In 1987, a former colleague wooed her away from DuPont to Woodcock Washburn, which was then looking to fill its ranks with experienced younger attorneys. “What I remember about wanting to hire her is that she is an immediately likeable person who clearly is very professional and very competent,” says Phil Johnson, one of the partners who hired her, who is now chief intellectual property counsel for Johnson & Johnson.

At first, she continued the kind of patent-prosecution work she’d done at DuPont. She was bookish, unobtrusive, effective, and nowhere near a courtroom. That’s the way she wanted it. Until one day she didn’t.

“After a year or so, I saw what [the litigators] were doing, and I said, ‘That looks kind of fun,’” she says.

Her first stand-up was in 1989 when she argued on behalf of a client claiming intellectual property rights for a pistol-like dental instrument used to inject composite materials. She was anxious but confident. She knew she had done her homework. “Preparation, preparation, preparation,” she says. “That’s how I control stage fright.” She won that one and has continued winning.

“She has a low-key style and tends to create a really good rapport with the jury and people she’s dealing with,” says Ken Dow, vice president of patent law for Centocor Ortho Biotech. “She is able to communicate complex ideas and concepts very easily in a way that makes it understandable to people.”

In those first years she handled an eclectic array of cases, many involving medical devices, such as a series involving handheld blood-glucose monitors and surgical instruments. As her experience grew, so did her reputation as a soft-spoken but calm and meticulous attorney.

“I’ve never seen her lose her cool—she’s not the kind of person who flips out,” says Barbara Mullin of Akin Gump, and Elderkin’s right hand in the Centocor case. “She expresses her anxiety by eating chocolate—it helps her think.”

In 2006, Elderkin was handed the case that surely required bags of Ghirardelli to get through: Centocor Inc. v. Abbott Laboratories. The complicated case concerned whether Abbott’s wildly profitable anti-arthritis drug Humira infringed a patent Centocor and NYU held for its own anti-inflammatory, a drug named Remicade. Abbott argued that because Centocor’s drug was partially derived from mouse antibodies, Abbott’s drug, which used fully human antibodies, wasn’t in violation of the patent. The stakes were monumental: Remicade had $3.75 billion in 2008 sales alone, according to Abbott.

“It was a challenge because it’s really fascinating technology,” Elderkin says. “That’s what I love about being a patent attorney—working on cutting-edge areas with brilliant scientists, learning technology and teaching it to people.”

After assembling a legal team loaded with Ph.D.s and specialists, Elderkin began devising her strategy. It took years but she did not fluster, and when the trial began she was immaculately prepared. She also showed a deft touch in presenting a human dimension to the complicated conflict. She put a Centocor researcher on the stand and asked him to describe the joy he felt in knowing that a product he developed was helping millions of consumers.

After a week at trial in Marshall, Texas, the case went to the jury. And the jury went for $1.67 billion.

“To get a result like that is about is as good as it gets,” Elderkin says.

Things aren’t over. Abbott, of course, has appealed the decision, so Elderkin can’t go into much detail about the case just yet. But not a lot of lawyers can ever say they’ve been on the warm side of a billion-dollar verdict. It’s work that led her to be the first woman to be named “Litigator of the Week” by The American Lawyer, among other distinctions.

“The fight goes on,” she says.

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