“Our group has accomplished so much in the past two years, and most of these cases have been led by women.”

So says Allen & Overy (A&O) IP partner Lisa Nguyen. She was speaking to GLP recently, fresh from successfully arguing a case representing Meta and Instagram, which had been accused by a company called Street Spirit of infringing a patent relating to identity verification on social networks. 

That followed a number of victories by the female-led IP practice team including a Federal Circuit win for Unified Patents, back-to-back jury trial wins for baby goods manufacturer Wonderland, two US Patent Trial and Appeal Board (PTAB) wins for Meta, and back-to-back IS International Trade Commission (ITC)  wins for Google.

“Our group is only two years old, but we keep on having all these wins that you would expect other firms to have over the course of a decade,” she says.

Nguyen, who joined A&O’s Silicon Valley office in February last year from Latham & Watkins, pins much of this success down to clients increasingly supporting women as lead counsel in litigation and as leaders in general. There are certain clients that recognise the value of looking more broadly at the talent that is out there. “And recognising that you don’t have to be the most aggressive to win.”

She continues: “I think that many people assume that to be an effective litigator you have to be an extrovert, you have to be aggressive, you have to be confrontational and that’s just not the case.”

She believes that this more traditional mindset can stop clients from hiring women as lead counsel and overlooking some incredible talent.

As a young attorney she was often told: “I was too nice, I had to be more aggressive. I did that for awhile, I was aggressive, I did try to be more confrontational and it didn’t work for me.

“I learned how to be effective in my way, by being the most reasonable person in the room not necessarily the most aggressive or the loudest.”

She continues: “I think a lot of clients talk about diversity and hiring women as lead counsel and hiring more women, but at the end of the day a lot of people worry about explaining that to their business side… Ultimately it’s not about why did you hire a woman but hiring the best person for the job.”

However, she understands that when it comes to that multibillion dollar case, people start to question themselves and “whether they can provide enough evidence to support the decisions that they are making”. They might just go with the person that “everyone hires” and has a good reputation.

AI

A&O is following developments in AI closely and uses ChatGPT through its artificial intelligence platform Harvey. She is monitoring cases relating to AI and whether certain companies like ChatGPT creator OpenAI will be held liable for its models. 

“I think though what we will see is essentially an extension of old principles, whether you can apply copyright infringement principles to AI. There are a lot of traditional defences you can raise for many of the claims being made relating to AI,” she says.

Pointing to writer and performer Sarah Silverman’s involvement in a US class action lawsuit for copyright infringement, Nguyen notes that much of the AI litigation cropping up are class action suits. In the EU, she says, there are more class action privacy cases, but she wonders whether there will be more class action cases in Europe like in the US, given the new EU class action directive.