R&G Tech Studio Presents: Intellectual Property Litigation Partner Andrew Radsch
On this episode of the R&G Tech Studio, intellectual property litigation partner Andrew Radsch sits down with technology, media & telecommunications co-lead Andrew Thomases to discuss how the opportunities he was afforded as an associate led to his career as an IP litigator.
Andrew Thomases: Welcome to the latest episode of the R&G Tech Studio podcast. I'm Andrew Thomases, co-chair of Ropes & Gray's technology, media & telecom group. Today, I'm delighted to have with us Andrew Radsch, who is an IP (intellectual property) litigator in the Silicon Valley office of Ropes & Gray, and also is the leader of Ropes & Gray's firmwide sector on semiconductors. Hello, Andrew—so, you're in Ropes & Gray's Silicon Valley office. How long have you been there, and how long have been with Ropes & Gray?
Andrew Thomases: Great. So, what made you decide to move from New York to Silicon Valley?
Andrew Radsch: I grew up primarily in Southern California. I met my wife in New York, and she also happened to be from Southern California, which was to the delight of both of our parents. We decided to move back to California when my wife got pregnant with our first child, so we moved here about three months before he was born, and had the great joy of living out of a hotel for the first month as we navigated the challenges of finding a house in Silicon Valley.
Andrew Thomases: Not necessarily the easiest thing, I'm sure.
Andrew Radsch: No, my wife was quite a trooper to put up with that.
Andrew Thomases: You're in the intellectual property litigation practice, so tell us a little bit more about your practice: What do you do? What clients do you serve? What industries are you working with?
Andrew Radsch: I do primarily patent and trade secret litigation. Most of my clients are in various high-tech industries, and they do span the technology categories, from cybersecurity to semiconductors, to consumer electronic devices and wearables, and really anything with high-tech components, software, or other computer technologies embedded in them. I've worked for many household names, such as Apple, Palo Alto Networks, Roku, and Zoom. And my practice spans both representing patent owners who are seeking to enforce their patent rights or trade secrets, as well as accused infringers of patents, or companies accused of stealing trade secrets. Most of my work is in district courts across the country, and I also do some work at the Patent Trial and Appeal Board at the U.S. Patent Office.
Andrew Thomases: Sounds fascinating. Can you tell us a little bit about what products are involved in some of these matters you've been working on?
Andrew Radsch: Of course. Many of my cases involve the types of devices and products that we use every day, like iPhones and Apple Watches, and devices and products that may be powering a lot of the systems you use at work—there are cybersecurity devices that are protecting many of our companies' internal networks. I've had the privilege of working with Zoom, and I think starting in the pandemic, we are all now quite familiar with their platform for videoconferencing. I've also worked on cases involving Smart TVs, including hardware aspects of those televisions as well as the on-screen technology that allows us to discover and find all the TV shows we love to watch.
Andrew Thomases: Sounds great. I think a lot of us are familiar with a lot of those different products. I'd like to learn a little bit more about cybersecurity, since that's a little behind-the-scenes. You had mentioned that there are hardware products that companies use for cybersecurity: Can you give us a little more detail?
Andrew Radsch: As you could imagine, there is quite a variety of cybersecurity products out there—they come both as hardware and software devices now. We have cybersecurity that runs in the Cloud—just like so many things these days run in the Cloud—and all that's a nebulous concept, but what that really means is that your security is being "hosted" not by your company, but by another company's set of computers and all your traffic will run through there. There are also hardware devices that sit behind-the-scenes that intercept and inspect computer communications to make sure that malicious actors and content are not penetrating through the security of your company's computers, and infiltrating its internal servers and the like. So, these are really interesting and complex products—they are integrating a lot of different technologies, from networking-type technologies to deep-packet inspection, when you look inside the content of a communication between various computers to see what is going on. A lot of it involves guesswork, as well, because bad actors are developing new techniques all the time for attacking computer networks. And so, part of the challenge is staying one step ahead of them, and trying to develop new technologies to fend off those types of attacks, and prevent companies' data and information from being taken hostage.
Andrew Thomases: Fascinating. Now, you've mentioned both "patent protection" for a company, as well as "trade secrets." Can you explain to our audience a little bit about the difference between those and whether there are any similarities?
Andrew Radsch: A "patent" is, really, a grant of a limited-time monopoly from the government that allows the patentholder to be the exclusive person who can make, use, or sell the invention that's patented. And the exchange for that 20-year monopoly on the right to use that invention is that you have to disclose to the world, through your patent application, how to make that invention. So, it's a tradeoff: If I have a new invention, I disclose it to the Patent Office, which then in turn publishes my patent application so others can see how to make and use my invention. If it's determined to be "patentable," then I get the right for the next 20 years from filing of that application to be the only person that gets to use or sell that invention, unless I license somebody else to do so, as well. And that's quite a popular way of protecting new innovations because it gives you that control over the use of that technology.
In contrast, "trade secrets" are a way to protect innovations by keeping them “secret,” as the name would imply. So, it's not any sort of grant of a right from the government to do anything—you're protecting your information by keeping it secret. And there are different ways to do that. You need to ensure that you have proper procedures in place internally in your company to prevent data and information from leaking out. If you are working with a partner on developing new technology, ensuring that your agreements have proper confidentiality protections. Also, ensuring that agreements with employees have proper provisions in them to make sure that they are treating your data and your innovations how you would like to have them treated.
So, they're different in terms of how they are protected: A patent being a grant from the government of a limited monopoly, and a trade secret being something you protect really by keeping the information secret from others. But they have similarities in that they're used to protect new innovations, new technologies, and new developments from being used by others.
Andrew Thomases: Thanks—that was a very helpful explanation. One follow-up: I know if you have a patent, and you see someone is using the invention without permission, you could bring a suit. But how does litigation involving a trade secret work? What are the circumstances that would give rise to that kind of litigation?
Andrew Radsch: It's very similar, in that a company or a person who believes that their trade secret has been stolen can also file a lawsuit against the person or entity that they believe stole their trade secrets. It can often be very difficult to learn if your trade secrets have been stolen, because many times, the technology is not readily apparent in whatever product or activity is being sold or undertaken by the party that you believe may have stolen your trade secret. But there are laws and mechanisms to enforce trade secret protections, and to bring into court those that you believe have stolen or misappropriated your trade secrets—in other words, used them in ways that are not permissible.
One key difference, though, between the patent and trade secret context, is that to be hauled into court for misusing a trade secret, it really does require some misdeeds or theft of that trade secret. Whereas, with patents, you can develop your own technology and it just so happens that you end up developing something that somebody has already patented, you can still be liable as a patent infringer even if you didn't mean to infringe and even if you did not know about the existence of that patent. In contrast for trade secrets, to claim for trade secrets is really around misappropriation of that trade secret—it’s somebody taking that innovation when they were not supposed to do so and misusing it in a way they were obligated not to do.
Andrew Thomases: So, the true "bad actor."
Andrew Radsch: That's right—and those cases are often very interesting for juries because there is at least an allegation of some theft involved.
Andrew Thomases: You've been an intellectual property litigator for a number of years—you must have some interesting war stories. Is there one that you can tell us about today?
Andrew Radsch: Sure. This one goes back a number of years, and I like to tell it because I think it reflects very well on things that, to me, make Ropes & Gray such a special place and the reason I've spent my career here. When I was a junior associate, back in our New York office, I had the opportunity to join a trial team for a jury trial that took place in Delaware. As junior associates often do, I was very close to the facts and I was very close to the law, and at that trial, I had the opportunity to present argument to the court on what we call the "jury instructions"—that's the phase at the end of the trial where the judge will instruct the jury on what the law is. As you can imagine, parties often hotly contest what the judge should tell the jury because they want it spun in their favor. I had the benefit of having some great mentors and partners that really trusted in me, and they gave me the opportunity to present the argument, which is about three hours after the trial day ended in court. In contrast, our opponent in that case put up their lead partner to argue the jury instructions, and it was clear that he was not as close to the law or to the facts of the case. And I was really able to march through the instructions one by one, and tell the court why each of our proposals aligned with the law and also why they applied to the facts of this case. In contrast, the other attorney engaged in a lot of hand-waving, and it was clear that he was just arguing his position based upon what he thought was right, not with adequate support in the law or the facts of the case. After a time, the judge just became exasperated and kicked the opposing attorney out of his courtroom—told him to go work on his closing argument and find someone closer to the case law and the facts to present the argument. So, it was a really good learning opportunity for me and something I've taken to heart, which is to trust your younger associates and younger colleagues, especially those that have opportunities to really be in the weeds with the facts and the law, and spend the time doing that heavy lifting to present the case in the best light. So, I've really taken that to heart, as a partner now working with junior colleagues, to try to give them the opportunities to have those stand-up roles in the courtroom, in deposition scenarios, or anywhere else where they really show that they can shine.
Andrew Thomases: That's a great story, and I'm sure the attorneys who work with you really do appreciate those opportunities. Turning now to what you see coming in the future in your field, in intellectual property litigation in the high-tech space: What are some of the hot topics coming down the road?
Andrew Radsch: It's a great question. I think one of the hot topics really revolves around the convergence of technologies—disparate and different technologies in single products. You take an iPhone or any other smartphone—already a very complex product with lots of technologies baked into it—and every day they're getting new technologies added to them: augmented reality technology, health monitoring technology, and other technologies from different fields. And this is probably nowhere more apparent than in the automotive industry, where we have what used to be relatively, I would say, simple mechanical cars—obviously some complex parts, but there was an engine, a chassis, an exhaust system, maybe a radio, and maybe some electronics to control windows and some of the other devices—now, they are complex computers on wheels. New technologies are being added to them every day—we see the addition of self-driving technologies, the interconnectedness of cars with new wireless capabilities, the introduction of 4G and 5G technologies to automobiles, the introduction of new power trains, and we obviously have the advent of the electric vehicle. So, this really does cut across a lot of industries, and this convergence of technologies can create a lot of new complexities for clients.
Andrew Thomases: For clients that have this convergence, how are they doing with it, in terms of intellectual property issues?
Andrew Radsch: With this convergence of technologies, there is an increased risk of some sort of dispute around IP, because with the more technology introduced into your product, the more IP (intellectual property) there is involved—the more that other companies, parties, or holders of these intellectual property rights may believe that your product is using their technology. And so, one challenge is just anticipating where those risks are coming from. In the automotive industry, the automotive companies often knew who their key competitors were—who the companies are that they are likely to see in the courtroom for allegations of international property theft or misuse, or patent infringement. But now, with so many different technologies coming under one umbrella, there may be completely different avenues in which those risks emanate from—new rightsholders that were not competitors in the past may be competitors now. And one challenge you have from that, too, is parties may have widely differing viewpoints on what the value of a dispute is. If I have a patent on a particular piece of an automobile—a small component, some new technology, some part of the self-driving system—I may value the case differently than you as the car manufacturer who says, "I have thousands of technologies baked into this product. Your technology is only a small piece of that puzzle." Finding a resolution to a dispute often involves finding common ground as to valuing that suit, and this convergence can make that really difficult.
Andrew Thomases: Very interesting. We like to close these podcasts with a little bit of a lightning round, with some personal information about yourself. I'll ask you some questions, and let's get some quick answers. What city do you currently live in?
Andrew Radsch: I currently live in Redwood City, which is in the Bay Area, in the Peninsula, just north of Palo Alto.
Andrew Thomases: You mentioned, at least when you moved out and were living in a hotel, that your wife was pregnant: How many children do you have?
Andrew Radsch: We now have two: I have an eight-year-old and a daughter who is almost three, who was born just at the beginning of the pandemic.
Andrew Thomases: Interesting books you've read recently?
Andrew Radsch: I'm reading an interesting one right now called For Blood or Money, about the development of life-saving cancer drugs, and it's a fascinating look at the drug development process. And what's even more fascinating, to me, is that one of my aunts is featured in the book who had a leading role in bringing a couple of cancer drugs to market.
Andrew Thomases: Wow—I hope you got the book autographed.
Andrew Radsch: I'm going to do that this weekend.
Andrew Thomases: Great. If and when you have free time, with a job and two kids, what are some of your favorite activities?
Andrew Radsch: I love to play outdoor sports with my kids. We love to go play soccer at the park, and we love to throw the frisbee and play basketball. When I have a little bit more free time, I love to go up to the mountains and go snowboarding. And occasionally, when I can find even a little bit more time, I do a little bit of rock climbing.
Andrew Thomases: Sounds adventurous. All right, here's an important question: In a peanut butter and jelly sandwich, which is more important, the peanut butter or the jelly?
Andrew Radsch: I would say the peanut butter, but to me, the most important part would be the bread.
Andrew Thomases:Thank you very much, Andrew—this has been great. It’s great to know you, great to learn about your practice, and about you personally, so thanks for being with us today. And to all of our listeners out there, this has been the R&G Tech Studio podcast. It is available on the Ropes & Gray website, on the R&G Tech Studio podcast page, and also wherever you get your podcasts. I want to thank all of our listeners for joining, as well. Thanks, everybody, and have a great day.