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4 SCHWARTZ 335 - 388 (DO NOT DELETE) 11/8/2012 2:43 PM THE RISE OF CONTINGENT FEE REPRESENTATION IN PATENT LITIGATION David L. Schwartz∗ ABSTRACT It is well known that plaintiff-side contingent representation is on the rise in patent litigation. But why? And what are the lawyers in the field like? Although scholars have studied contingent litigation in other contexts—such as medical malpractice, personal injury, and products liability litigation—patent litigation has received almost no attention. This gap in the literature is unsettling because patent litigation is different from these other fields of contingent litigation in important and interesting ways. These differences include: patent litigation is much more uncertain; the costs of litigating claims are usually significantly higher; and patents, including their underlying infringement claims, are freely assignable. Absent in most other contingent litigation contexts, these characteristics of patent litigation shed light on the br...