News

Houston office managing partner John Keville is among the finalists for Texas Lawyer's 2025 Intellectual Property Attorney of the Year Award. In a Q&A with the publication, Keville discussed trends on the horizon and preparing for them.

What trends do you see shaping the future of IP law?

Litigation funding continues to grow at a rapid pace, expected to increase from $15B this year to $60B by 2027. As patent litigation accounts for one-third of all litigation funding, this will impact the future of patent law not just because of an increase in funded cases, but also because of considerations regarding how third-party funding relates to ethical concerns, attorney-client privilege and case management issues.

While funding enables small companies and independent inventors to pursue meritorious claims that might otherwise be sidelined, it can also encourage the enforcement of weak claims by patent trolls seeking cost-avoidance settlements. In those cases, smaller litigation financers or hedge funds are drawn to the returns from volumes of nuisance-value cases and, occasionally, large verdict settlements.

How do you prepare for these changes?

To address this trend and its pitfalls, we work with reputable litigation funders as necessary to protect our clients’ IP, structuring funding agreements to avoid potential conflicts of interest, ensure the strength of the attorney-client privilege, and, most importantly, protect the client’s recovery. Too often, we have seen cases where funding agreements primarily benefited the funder and attorneys, putting the client last. When working with a funder, we ensure that the client is paramount, as it is their company and IP at stake. On the other hand, when defending clients against funded litigation, we aggressively seek discovery, as may be allowable, of certain funder information such as the financial interest, due diligence, and evaluation materials. If not protected, such information may be useful evidence for infringement and damages. These discovery issues, and potential regulation from the USPTO and Congress, will likely have significant impacts on the future of litigation funding in IP law.

Along with an increase in litigation funding, trade secrets cases are becoming even more critical to IP protection because of technological advancements, access to digitized information, and increased global competition, as well as the frequency and success rates of patent validity challenges due, in large part, to IPRs and the continued vagueness of 35 U.S.C. 101 law. Litigation funding is also becoming prevalent in trade secrets cases and poses similar concerns. To address this, our IP litigators regularly meet with attorneys across multiple disciplines at the firm to collaborate on unique case plans, recognizing that—as with patent cases—no two can be tried the same way.

Texas Lawyer will honor finalists and announce the winners at an awards ceremony on September 25.