If you're thinking about a career in patent law, read this:

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bearsfan23
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Re: If you're thinking about a career in patent law, read this:

Postby bearsfan23 » Thu Jan 15, 2015 5:01 am

Oh noes

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ExBiglawAssociate
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Re: If you're thinking about a career in patent law, read this:

Postby ExBiglawAssociate » Thu Jan 15, 2015 5:08 am

bearsfan23 wrote:Oh noes

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pancakes3
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Re: If you're thinking about a career in patent law, read this:

Postby pancakes3 » Thu Jan 15, 2015 8:48 am

IP is an option for me but I don't have a burning desire to practice. Nonetheless being a stupid 1L (or even objectively stupid from a RP standard), I don't know how to properly react to this.

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Re: If you're thinking about a career in patent law, read this:

Postby kcdc1 » Thu Jan 15, 2015 9:11 am

Law student opinion: software/business methods are functionally unpatentable after Alice, so that litigation should taper off even without further changes. OTOH, if judicial reform goes the other way, that litigation could bounce back.

Mandatory/presumptive fee shifting could be a big deal. I'd be curious to learn more about the status of this proposal.

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gk101
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Re: If you're thinking about a career in patent law, read this:

Postby gk101 » Thu Jan 15, 2015 9:46 am

I don't see why the IP litigation groups aren't just going to start taking over IPR work. It may become harder for non-science background folks to get into IP Lit, but it wasn't really an easy option before. Also, the first few IPR decisions are just getting to the Federal Circuit on appeal, so there is a lot of unsettled law. I think a majority of the IPRs have a concurrent district court litigation pending (usually stayed until the IPR proceedings are completed) and clients aren't willing to rely solely on IPRs. I wouldn't buy all the doom and gloom surrounding IP lit just yet.

As for Alice killing software/business method patents, meh. A lot of the same things were said after Bilski and it didn't turn out to as big a deal as many predicted at the time.

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ExBiglawAssociate
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Re: If you're thinking about a career in patent law, read this:

Postby ExBiglawAssociate » Thu Jan 15, 2015 1:37 pm

gk101 wrote:I don't see why the IP litigation groups aren't just going to start taking over IPR work. It may become harder for non-science background folks to get into IP Lit, but it wasn't really an easy option before. Also, the first few IPR decisions are just getting to the Federal Circuit on appeal, so there is a lot of unsettled law. I think a majority of the IPRs have a concurrent district court litigation pending (usually stayed until the IPR proceedings are completed) and clients aren't willing to rely solely on IPRs. I wouldn't buy all the doom and gloom surrounding IP lit just yet.

As for Alice killing software/business method patents, meh. A lot of the same things were said after Bilski and it didn't turn out to as big a deal as many predicted at the time.


After a while, companies are going to stop paying for large quantities of patents and focus on greater quality. Companies will switch to prosecuting patents with a lot of disclosure, concrete ties to machines and clearer claims (in order to survive IPR, Alice and indefiniteness challenges). Hiring mass-producing patent firm like Knobbe to crank out hundreds of overly broad patents will be completely worthless in light of Alice and the new indefiniteness standards. The IPR work will eventually slow down as fewer patents are acquired and asserted by companies. In short, it may take a while, but there will be a definite slowdown across all patent-related fields unless the legal landscape changes unexpectedly. Obviously, the litigators will feel it first, since it makes no sense to sue people on patents that are almost certainly going to be invalidated.

The difference with Alice is that we're already seeing software/business method patents getting annihilated using Alice's Section 101 analysis. Less than 5% of these kinds of patents are surviving Alice challenges, which is unprecedented.

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Re: If you're thinking about a career in patent law, read this:

Postby Stevoman » Thu Jan 15, 2015 1:59 pm

There's still going to be plenty of patent work, it's just going to be more specialized than ever as the work moves to PGR type stuff. Hard science/engineering attorneys will continue doing just fine.

The only people who will be hurt by this are the soft IP guys from multi-service sweatshops who got thrown at the field when it was hot a few years ago. Which I'm guessing is OP judging by his name.

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fats provolone
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Re: If you're thinking about a career in patent law, read this:

Postby fats provolone » Thu Jan 15, 2015 2:01 pm

welp

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Re: If you're thinking about a career in patent law, read this:

Postby mvp99 » Thu Jan 15, 2015 2:12 pm

to hell with efficiency... why arent laywers in Congress helping lawyers!! The GAAp writedowns dont surprise me as much.. didnt we let companies inflate the value of their shit w the excuse that there was no market a couple of years ago

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Re: If you're thinking about a career in patent law, read this:

Postby gk101 » Thu Jan 15, 2015 2:25 pm

Biglaw_Associate_V20 wrote:
gk101 wrote:I don't see why the IP litigation groups aren't just going to start taking over IPR work. It may become harder for non-science background folks to get into IP Lit, but it wasn't really an easy option before. Also, the first few IPR decisions are just getting to the Federal Circuit on appeal, so there is a lot of unsettled law. I think a majority of the IPRs have a concurrent district court litigation pending (usually stayed until the IPR proceedings are completed) and clients aren't willing to rely solely on IPRs. I wouldn't buy all the doom and gloom surrounding IP lit just yet.

As for Alice killing software/business method patents, meh. A lot of the same things were said after Bilski and it didn't turn out to as big a deal as many predicted at the time.


After a while, companies are going to stop paying for large quantities of patents and focus on greater quality. Companies will switch to prosecuting patents with a lot of disclosure, concrete ties to machines and clearer claims (in order to survive IPR, Alice and indefiniteness challenges). Hiring mass-producing patent firm like Knobbe to crank out hundreds of overly broad patents will be completely worthless in light of Alice and the new indefiniteness standards. The IPR work will eventually slow down as fewer patents are acquired and asserted by companies. In short, it may take a while, but there will be a definite slowdown across all patent-related fields unless the legal landscape changes unexpectedly. Obviously, the litigators will feel it first, since it makes no sense to sue people on patents that are almost certainly going to be invalidated.

The difference with Alice is that we're already seeing software/business method patents getting annihilated using Alice's Section 101 analysis. Less than 5% of these kinds of patents are surviving Alice challenges, which is unprecedented.


Most companies already use different firms and programs like fast-track applications for prosecuting patents that have a lot of disclosure, concrete ties to machines and clearer claims. The mass-produced broad patents serve a different role in an IP portfolio. IPRs aren't exactly the cheapest or the most efficient way to invalidate a large no. of claims/patents. The cost of litigating a large number of claims in district court vs cost of instituting multiple IPRs to adequately address all the claims might end up being very similar.

I am sure there will be some slowdown in litigation (that's kinda the point of all the lobbying efforts and upcoming legislation) but again the "end of patent law as we know it" talk seems premature. There hasn't been such a massive shift in patent law landscape that companies will start abandoning a significant part of their portfolios at least in the foreseeable future

As for Alice, I agree that the immediate aftermath has been unprecedented. But its not like business method patents are categorically non-patentable. It might take some time but I am sure prosecutors will adapt to it and soon litigation folks will have more stuff to fight about. Companies like Mastercard, AMEX etc that have significant IP portfolios in the financial transactions/business methods area are not going to abandon it because of Alice alone

Litigation in general is slowing down across the industry and patent won't be an exception to that. On the other hand, I don't think patent lit will be uniquely worse off than others.

TLDR:
fats provolone wrote:welp

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ExBiglawAssociate
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Re: If you're thinking about a career in patent law, read this:

Postby ExBiglawAssociate » Thu Jan 15, 2015 2:30 pm

Stevoman wrote:There's still going to be plenty of patent work, it's just going to be more specialized than ever as the work moves to PGR type stuff. Hard science/engineering attorneys will continue doing just fine.

The only people who will be hurt by this are the soft IP guys from multi-service sweatshops who got thrown at the field when it was hot a few years ago. Which I'm guessing is OP judging by his name.


...not sure why my name would indicate a lack of technical background.

Like I said, the "PGR type stuff" will be hot for the next little while until companies figure out that they are throwing a shitload of money at getting worthless patents. Then everything will decline: post-grant proceedings, prosecution and traditional litigation.

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Re: If you're thinking about a career in patent law, read this:

Postby FSK » Thu Jan 15, 2015 2:33 pm

.
Last edited by FSK on Thu Jan 15, 2015 2:36 pm, edited 1 time in total.

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Re: If you're thinking about a career in patent law, read this:

Postby FSK » Thu Jan 15, 2015 2:33 pm

I'm happy to see this, because 1) I think IPR and Alice on the net favor innovation and I like that, and 2) I go to GW and I'm sick of the people walking down our prestttigious halls drooling the words "patentttttttttttttttttttttttttt".

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ExBiglawAssociate
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Re: If you're thinking about a career in patent law, read this:

Postby ExBiglawAssociate » Thu Jan 15, 2015 2:41 pm

gk101 wrote:
Biglaw_Associate_V20 wrote:
gk101 wrote:I don't see why the IP litigation groups aren't just going to start taking over IPR work. It may become harder for non-science background folks to get into IP Lit, but it wasn't really an easy option before. Also, the first few IPR decisions are just getting to the Federal Circuit on appeal, so there is a lot of unsettled law. I think a majority of the IPRs have a concurrent district court litigation pending (usually stayed until the IPR proceedings are completed) and clients aren't willing to rely solely on IPRs. I wouldn't buy all the doom and gloom surrounding IP lit just yet.

As for Alice killing software/business method patents, meh. A lot of the same things were said after Bilski and it didn't turn out to as big a deal as many predicted at the time.


After a while, companies are going to stop paying for large quantities of patents and focus on greater quality. Companies will switch to prosecuting patents with a lot of disclosure, concrete ties to machines and clearer claims (in order to survive IPR, Alice and indefiniteness challenges). Hiring mass-producing patent firm like Knobbe to crank out hundreds of overly broad patents will be completely worthless in light of Alice and the new indefiniteness standards. The IPR work will eventually slow down as fewer patents are acquired and asserted by companies. In short, it may take a while, but there will be a definite slowdown across all patent-related fields unless the legal landscape changes unexpectedly. Obviously, the litigators will feel it first, since it makes no sense to sue people on patents that are almost certainly going to be invalidated.

The difference with Alice is that we're already seeing software/business method patents getting annihilated using Alice's Section 101 analysis. Less than 5% of these kinds of patents are surviving Alice challenges, which is unprecedented.


Most companies already use different firms and programs like fast-track applications for prosecuting patents that have a lot of disclosure, concrete ties to machines and clearer claims. The mass-produced broad patents serve a different role in an IP portfolio. IPRs aren't exactly the cheapest or the most efficient way to invalidate a large no. of claims/patents. The cost of litigating a large number of claims in district court vs cost of instituting multiple IPRs to adequately address all the claims might end up being very similar.

I am sure there will be some slowdown in litigation (that's kinda the point of all the lobbying efforts and upcoming legislation) but again the "end of patent law as we know it" talk seems premature. There hasn't been such a massive shift in patent law landscape that companies will start abandoning a significant part of their portfolios at least in the foreseeable future

As for Alice, I agree that the immediate aftermath has been unprecedented. But its not like business method patents are categorically non-patentable. It might take some time but I am sure prosecutors will adapt to it and soon litigation folks will have more stuff to fight about. Companies like Mastercard, AMEX etc that have significant IP portfolios in the financial transactions/business methods area are not going to abandon it because of Alice alone

Litigation in general is slowing down across the industry and patent won't be an exception to that. On the other hand, I don't think patent lit will be uniquely worse off than others.

TLDR:
fats provolone wrote:welp


I don't understand why you expect prosecution to remain largely the same when litigation is becoming more difficult. The only value inherent in a patent is the ability to sue someone for infringement. Take away that value, and the patent is worthless. Why would companies continue prosecuting worthless patents?

Companies like Mastercard and AMEX do not care nearly as much about the patent landscape as companies like Google, which are highly motivated to both squash the patent trolls and make it easier to rip off other peoples' ideas (e.g., Apple's). Either way, it's not like credit card companies are going to have a choice in this matter, unless there's a radical change in the law. Their patent are already invalid. As I said, the overwhelmingly vast majority of business method patents are being invalidated and new applications on the same are being rejected in the patent office. There are entire art units devoted to business method patents that are denying something like 97% of applications, whereas the number was closer to 60% pre-Alice.

Patent lit is significantly worse off than other kinds of litigation because it doesn't translate well to other types of litigation if you want to switch. A lot of litigation job postings specifically say that they do NOT want applications from patent litigators because a lot of the skills you develop as a patent litigator are 100% useless for other kinds of litigation. Also, there are way too many patent litigators right now. Almost every firm is overstaffed.
Last edited by ExBiglawAssociate on Thu Jan 15, 2015 2:44 pm, edited 1 time in total.

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fats provolone
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Re: If you're thinking about a career in patent law, read this:

Postby fats provolone » Thu Jan 15, 2015 2:43 pm

brb abandoning ship

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fats provolone
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Re: If you're thinking about a career in patent law, read this:

Postby fats provolone » Thu Jan 15, 2015 2:44 pm

in all seriousness i'm not too worried about it. i only have hundreds of thousands of dollars in debt so i can be pretty flexible in terms of jobs

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Re: If you're thinking about a career in patent law, read this:

Postby kcdc1 » Thu Jan 15, 2015 3:30 pm

Biglaw_Associate_V20 wrote:I don't understand why you expect prosecution to remain largely the same when litigation is becoming more difficult. The only value inherent in a patent is the ability to sue someone for infringement. Take away that value, and the patent is worthless. Why would companies continue prosecuting worthless patents?

. . .

As I said, the overwhelmingly vast majority of business method patents are being invalidated and new applications on the same are being rejected in the patent office. There are entire art units devoted to business method patents that are denying something like 97% of applications, whereas the number was closer to 60% pre-Alice.

I think you're conflating the Alice issue with procedural reform (fee shifting, complaint standards, etc).

Alice will affect both lit and prosecution. Software/business methods are of suspect validity, which means companies will be have less incentive to seek new patents in those arts and will be less likely to assert the patents that they already have.

The procedural reforms are designed to hit litigation, and it stands to reason that they will succeed in this regard to some degree. But the tie to prosecution is much more tenuous.

Say Congress enacts mandatory fee shifting so that the winner automatically recovers his own legal fees. Now patentees are less likely to assert patents of questionable validity because they risk being on the hook for both sides' legal fees if they lose. Thus, questionably valid patents are more difficult to monetize and are of lesser value. It's possible that companies would recognize this trend and will cut prosecution budgets because so many of the patents that issue are weak.

But there are also countervailing factors. When the winner recovers legal fees, stronger patents become cheaper to assert, and therefore become more valuable. So companies might want to increase their prosecution budgets to get higher quality patents. Or they might simply seek more patents so that they have more options from which to pick out the strongest cases.

And of course patents can still be used outside of direct litigation. You can still use a weak patent to extract a licensing fee -- the procedural shift changes the parties' leverage, but the prospective licensee is still risk-conscious. And you can still use patents at the portfolio-level for the same strategic purposes that you could pre-reform.

In short, I'll buy that procedural reform could reduce litigation, but it's not at all clear to me that it will cut down on prosecution. It would reasonable to predict a shifting emphasis from quantity to quality, but a net reduction in investment doesn't seem to follow.

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Re: If you're thinking about a career in patent law, read this:

Postby Leo » Thu Jan 15, 2015 3:45 pm

I know a 1L at CCN who left engineering to pursue a career in patent law. He/she also secured a 1L SA at a V100 that is top 5 in IP. Should he/she be worried?

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Re: If you're thinking about a career in patent law, read this:

Postby kcdc1 » Thu Jan 15, 2015 3:52 pm

Leo wrote:I know a 1L at CCN who left engineering to pursue a career in patent law. He/she also secured a 1L SA at a V100 that is top 5 in IP. Should he/she be worried?

I know which of CCN this 1L attends. And if I were him/her, I would not worry. Although given a choice, I don't think I would go to a practice group that specializes (specialized?) in software/business method lit. EE/ME is mostly unaffected by Alice, and I doubt any procedural reforms would be world-ending.

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Re: If you're thinking about a career in patent law, read this:

Postby gk101 » Thu Jan 15, 2015 3:53 pm

Leo wrote:I know a 1L at CCN who left engineering to pursue a career in patent law. He/she also secured a 1L SA at a V100 that is top 5 in IP. Should he/she be worried?

yes leaving engineering to become a lawyer shows very poor judgment

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Re: If you're thinking about a career in patent law, read this:

Postby ExBiglawAssociate » Thu Jan 15, 2015 4:09 pm

kcdc1 wrote:
Biglaw_Associate_V20 wrote:I don't understand why you expect prosecution to remain largely the same when litigation is becoming more difficult. The only value inherent in a patent is the ability to sue someone for infringement. Take away that value, and the patent is worthless. Why would companies continue prosecuting worthless patents?

. . .

As I said, the overwhelmingly vast majority of business method patents are being invalidated and new applications on the same are being rejected in the patent office. There are entire art units devoted to business method patents that are denying something like 97% of applications, whereas the number was closer to 60% pre-Alice.

I think you're conflating the Alice issue with procedural reform (fee shifting, complaint standards, etc).

Alice will affect both lit and prosecution. Software/business methods are of suspect validity, which means companies will be have less incentive to seek new patents in those arts and will be less likely to assert the patents that they already have.

The procedural reforms are designed to hit litigation, and it stands to reason that they will succeed in this regard to some degree. But the tie to prosecution is much more tenuous.

Say Congress enacts mandatory fee shifting so that the winner automatically recovers his own legal fees. Now patentees are less likely to assert patents of questionable validity because they risk being on the hook for both sides' legal fees if they lose. Thus, questionably valid patents are more difficult to monetize and are of lesser value. It's possible that companies would recognize this trend and will cut prosecution budgets because so many of the patents that issue are weak.

But there are also countervailing factors. When the winner recovers legal fees, stronger patents become cheaper to assert, and therefore become more valuable. So companies might want to increase their prosecution budgets to get higher quality patents. Or they might simply seek more patents so that they have more options from which to pick out the strongest cases.

And of course patents can still be used outside of direct litigation. You can still use a weak patent to extract a licensing fee -- the procedural shift changes the parties' leverage, but the prospective licensee is still risk-conscious. And you can still use patents at the portfolio-level for the same strategic purposes that you could pre-reform.

In short, I'll buy that procedural reform could reduce litigation, but it's not at all clear to me that it will cut down on prosecution. It would reasonable to predict a shifting emphasis from quantity to quality, but a net reduction in investment doesn't seem to follow.


It's not just procedural reforms that should be worrying to patent practitioners. As I mentioned above, the indefiniteness standard has changed and will negatively impact all kinds of patents, not just software patents. Likewise, changes in law for contributory infringement, the already-difficult assert of the doctrine of equivalence and other "clarifications" of law coming from the Supreme Court and Federal Circuit may be much more damaging over the long run than any procedural reforms enacted by Congress. I don't know why these pompous dickheads on the Supreme Court felt it necessary to venture into a field they know nothing about in an attempt to fix it.

I was using Alice as an example, but my point about the value of patents depending on litigation still stands: patents are useless when you cannot or are unwilling (due to fee shifting, etc.) to enforce them. Explain to me why someone would get a patent that he/she never intends or will not be able to enforce.

Anyone with industry experience knows that 1) the vast majority of patents are shit and 2) getting more patents never leads to higher quality patents, because budget constraints are made on a per-patent basis, not on any kind of patent-quality metric. Another fact of life in the prosecution world is that a large number, perhaps a majority, of prosecution attorneys are idiots who are incapable of drafting high-quality patents. If companies decide to increase prosecution budgets (which may be the case, who knows) it will not lead to a greater number of jobs in patent prosecution. Rather, they will (or should) start paying the good patent prosecutors more money.

Your point about licensing does not contradict anything I have said. The bottom line is that licensing fees will go down, in the aggregate, because licencees see the drop in value for both individual patents and portfolios as a result of the difficulties with asserting patents in litigation.

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Re: If you're thinking about a career in patent law, read this:

Postby ymmv » Thu Jan 15, 2015 4:09 pm

fats provolone wrote:in all seriousness i'm not too worried about it. i only have hundreds of thousands of dollars in debt so i can be pretty flexible in terms of jobs


:lol:

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Re: If you're thinking about a career in patent law, read this:

Postby ExBiglawAssociate » Thu Jan 15, 2015 4:09 pm

gk101 wrote:
Leo wrote:I know a 1L at CCN who left engineering to pursue a career in patent law. He/she also secured a 1L SA at a V100 that is top 5 in IP. Should he/she be worried?

yes leaving engineering to become a lawyer shows very poor judgment

+1

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Re: If you're thinking about a career in patent law, read this:

Postby gk101 » Thu Jan 15, 2015 4:20 pm

Biglaw_Associate_V20 wrote:
I don't understand why you expect prosecution to remain largely the same when litigation is becoming more difficult. The only value inherent in a patent is the ability to sue someone for infringement. Take away that value, and the patent is worthless. Why would companies continue prosecuting worthless patents?


ETA: nvm I see what you are saying re lit changes driving patent values down. I don't agree with the scope of those changes that you seem to be implying, but I understand your point

As I said, the overwhelmingly vast majority of business method patents are being invalidated and new applications on the same are being rejected in the patent office. There are entire art units devoted to business method patents that are denying something like 97% of applications, whereas the number was closer to 60% pre-Alice.


The 97% rejection rate, while technically correct, is very misleading. There were 2-3 art units in the PTO devoted to business method patents that were told expressly by the PTO to issue non-final rejections in every single application (even in apps where the issue fee were paid) once the Alice decision came out. The PTO decided that they would issue guidelines to the Examiners on how to hand out and respond to Alice rejections after the comments period. They finally released the interim guidance on December 16 (on which they are still accepting comments). AFAIK the Examiners are finally supposed to receive training in February on how to analyze claims in view of Alice and to address the arguments made traversing the previously-issued Alice rejections. The 97% number is meaningless because it was a PTO policy decision to informally suspend prosecution on business method patents until further guidance is provided by the PTAB and Fed Circuit. I would be more curious to see the numbers from the next 2 quarters to see the actual impact of Alice. I don't expect it to be anywhere near the 60% pre-Alice mark but the 97% number is way too high.

Patent lit is significantly worse off than other kinds of litigation because it doesn't translate well to other types of litigation if you want to switch. A lot of litigation job postings specifically say that they do NOT want applications from patent litigators because a lot of the skills you develop as a patent litigator are 100% useless for other kinds of litigation. Also, there are way too many patent litigators right now. Almost every firm is overstaffed.


I will defer to you on this because I haven't done other kinds of litigation so I have no idea how well patent lit translates to other types.




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