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

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kcdc1
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Re: If you're thinking about a career in patent law, read this:

Postby kcdc1 » Thu Jan 15, 2015 4:34 pm

I don't want to go point-for-point on most of what you said, so I'll just say that aside from Alice, the changes to the substantive law are, in my opinion, not terribly threatening to patent practitioners.

As to this point:
Biglaw_Associate_V20 wrote: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.

Of course, companies do not seek out unenforceable patents, but you cannot know ex ante at the prosecution stage whether a given claim will stand up in litigation. The best you can do is to vary your claim scope. Push the envelope with broad claims and cover your bases with narrow claims. A greater emphasis on strategic lawyering strikes me as a good thing.

And of those that I've met, prosecution attorneys are not idiots -- their incentives lie in quantity over quality. And quantity is and will remain a defensible strategy for companies. You don't know where competitors will go, and you don't know where prior art will be found post-allowance. So you seek to issue multiple patents with varied claim scope, and you pick out the best patents to monetize down the road.

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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 4:39 pm

I agree on the varying scope point, but that requires QUALITY patent attorneys. I'm sure quality patent attorneys exist somewhere, but I haven't met many of them. I mean, if you have an EE degree from any school and a law degree from any school, you can prosecute EE patents. The intellectual bar you need to clear is not particularly high.

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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 4:42 pm

what should i do bros. assuming i don't get fired

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

Postby Anonymous User » Thu Jan 15, 2015 7:12 pm

Yikes. Going to be a summer associate at Fish this summer in their litigation group, although I have passed the patent bar. Should I be worried?

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

Postby Spartan_Alum_12 » Thu Jan 15, 2015 7:24 pm

I was actually thinking about this when we were talking about eligibility today in patent law class. It seems the future of software patents and biotech patents are in jeopardy. Luckily the firm I'm working at this summer does mostly semiconductor/optics/circuits type EE work. I'm a 2L w/o engineering work experience so there's no turning back now :shock:

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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 7:41 pm

Anonymous User wrote:Yikes. Going to be a summer associate at Fish this summer in their litigation group, although I have passed the patent bar. Should I be worried?


I would at least consider trying to diversify your practice beyond litigation, at least for the near term. Maybe litigation will pick back up in a few years once we get all this patent reform bullshit out of our political system? The problem is that the meat of your career is going to occur so far out from now that no one knows what things will be like. But things do not appear to be heading in a good direction, IMO.

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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 7:43 pm

Spartan_Alum_12 wrote:I was actually thinking about this when we were talking about eligibility today in patent law class. It seems the future of software patents and biotech patents are in jeopardy. Luckily the firm I'm working at this summer does mostly semiconductor/optics/circuits type EE work. I'm a 2L w/o engineering work experience so there's no turning back now :shock:


The hardcore EE work will always be relatively protected compared to software, since the BA shitheads can't understand it.

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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 7:44 pm

what about CYBERLAW i hear that's hot. they taking laterals?

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

Postby L’Étranger » Thu Jan 15, 2015 7:56 pm

Biglaw_Associate_V20 wrote:I agree on the varying scope point, but that requires QUALITY patent attorneys. I'm sure quality patent attorneys exist somewhere, but I haven't met many of them. I mean, if you have an EE degree from any school and a law degree from any school, you can prosecute EE patents. The intellectual bar you need to clear is not particularly high.


Excellent trolling. Nice job.

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

Postby L’Étranger » Thu Jan 15, 2015 8:19 pm

Also, FWIW:

Alice did not rule that software or business methods are unpatentable, rather, it defines a framework for assessing claims for abstractness. Software patent applications are still being prosecuted and software patents are still being litigated.

IP litigation is not going away nor are patents. If the law continues to change (and who knows if it will or it won't) the way in which IP lit and patent prosecution are practiced may change but they will still exist. In my opinion, changes to the law in general are good because they make IP interesting and challenging.

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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 8:52 pm

L’Étranger wrote:
Biglaw_Associate_V20 wrote:I agree on the varying scope point, but that requires QUALITY patent attorneys. I'm sure quality patent attorneys exist somewhere, but I haven't met many of them. I mean, if you have an EE degree from any school and a law degree from any school, you can prosecute EE patents. The intellectual bar you need to clear is not particularly high.


Excellent trolling. Nice job.


?

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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 8:53 pm

L’Étranger wrote:Also, FWIW:

Alice did not rule that software or business methods are unpatentable, rather, it defines a framework for assessing claims for abstractness. Software patent applications are still being prosecuted and software patents are still being litigated.

IP litigation is not going away nor are patents. If the law continues to change (and who knows if it will or it won't) the way in which IP lit and patent prosecution are practiced may change but they will still exist. In my opinion, changes to the law in general are good because they make IP interesting and challenging.


Alice is being read in such a way that almost every post-Alice Section 101 challenge against software patents has succeeded. The means are irrelevant if the ends are the same.

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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 8:54 pm

L’Étranger wrote:Also, FWIW:

Alice did not rule that software or business methods are unpatentable, rather, it defines a framework for assessing claims for abstractness. Software patent applications are still being prosecuted and software patents are still being litigated.

IP litigation is not going away nor are patents. If the law continues to change (and who knows if it will or it won't) the way in which IP lit and patent prosecution are practiced may change but they will still exist. In my opinion, changes to the law in general are good because they make IP interesting and challenging.


You know what's really challenging? Being unemployed.

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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 9:07 pm

how long do I have before I am permanently tainted with patent litigation re: exit options

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

Postby L’Étranger » Thu Jan 15, 2015 9:15 pm

Biglaw_Associate_V20 wrote:
L’Étranger wrote:Also, FWIW:

Alice did not rule that software or business methods are unpatentable, rather, it defines a framework for assessing claims for abstractness. Software patent applications are still being prosecuted and software patents are still being litigated.

IP litigation is not going away nor are patents. If the law continues to change (and who knows if it will or it won't) the way in which IP lit and patent prosecution are practiced may change but they will still exist. In my opinion, changes to the law in general are good because they make IP interesting and challenging.


You know what's really challenging? Being unemployed.


I'm just more optimistic than you are about the state of affairs.

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

Postby anonymuos » Sun Jan 18, 2015 2:38 am

This is an interesting thread, but ultimately seems like a lot of TLS -- too many people spouting uninformed opinions.

Patent law is changing, for sure. The impact though? That's unclear. Impact of indefiniteness is likely to nil. Would be interested to see any pre-Nautilusconstructions that were indefinite post-Nautilus. I don't know of any, but am OK being shown to be wrong. Alice is absolutely changing the landscape of both litigation and prosecution. But that could be good for practitioners. Lots of NPEs that are going to take their shot now, before the law gets worse; lots of patents that need to be prosecuted differently. There will also be pushback on the non-stop winning streak of Alice. (See DDR Holdings). Patent protection for software is not going away based on Alice alone. If SCOTUS or CAFC wants to get rid of all software patents, there's going to need to be another case to make it happen.

In general, I'm not convinced by the doomsayers. IP Law is maturing. That's different than collapsing. The boom is over, and there will be consequences for those teetering on the edge. But there will also be very successful practices out there as a result of the uncertainty.

In general, I think there's going to be a shift away from extortion-like NPEs, and a shift towards litigation from companies that were practicing entities, and had patents issued to them, but went bust. There's a whole lot of those companies from the late 1990s/early 2000s, with decent patents, just waiting in the wings. That means more BIG patent litigation, and more QUALITY patent prosecution, but not a collapse of the entire industry.

That being said, IF a bill passes with mandatory fee shifting for patent litigation, all bets are off. Then I absolutely believe the doomsayers. But I don't think that will happen. Too many big companies have invested too much in patents to see a bill like that pass.

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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 » Sun Jan 18, 2015 2:39 am

fats provolone wrote:what should i do bros. assuming i don't get fired

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

Postby ExBiglawAssociate » Sun Jan 18, 2015 3:12 pm

There are numerous articles online and at least one precedential Fed Cir opinion (from the Interval case) showing that Nautilus was not a trivial case, so I can't really take someone seriously who thinks Nautilus was nbd. Do some Googling.

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

Postby anonymuos » Mon Jan 19, 2015 12:55 am

Biglaw_Associate_V20 wrote:There are numerous articles online and at least one precedential Fed Cir opinion (from the Interval case) showing that Nautilus was not a trivial case, so I can't really take someone seriously who thinks Nautilus was nbd. Do some Googling.


I'll post once on this sub-issue, then suggest you PM if you want to continue further discussion because I don't want to derail. But weird cite to Interval + online articles. If anything, Interval just affirmed the lack of impact. A decision made under the pre-Nautilus was upheld under the post-Nautilus standard. So why does that show that Nautilus will make an impact? And I don't see anything in Interval that shows Nautilus portends a change in law. I'm not saying Nautilus is a trivial decision - it's a SCOTUS decision on a point of patent law that often comes up, so of course it's going to be cited/quoted often. But that doesn't mean it changed the standard or that patents are going to start being invalidated at a higher rate due to indefiniteness.

But, that's really besides the point. Even if I'm completely wrong on everything about Nautilus, that's no reason to disregard everything else I say. Even Einstein had his cosmological constant, but he still managed to be right about some things. Engage in the debate or don't. But don't be dismissive without substance.

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

Postby ExBiglawAssociate » Mon Jan 19, 2015 2:29 am

anonymuos wrote:
Biglaw_Associate_V20 wrote:There are numerous articles online and at least one precedential Fed Cir opinion (from the Interval case) showing that Nautilus was not a trivial case, so I can't really take someone seriously who thinks Nautilus was nbd. Do some Googling.


I'll post once on this sub-issue, then suggest you PM if you want to continue further discussion because I don't want to derail. But weird cite to Interval + online articles. If anything, Interval just affirmed the lack of impact. A decision made under the pre-Nautilus was upheld under the post-Nautilus standard. So why does that show that Nautilus will make an impact? And I don't see anything in Interval that shows Nautilus portends a change in law. I'm not saying Nautilus is a trivial decision - it's a SCOTUS decision on a point of patent law that often comes up, so of course it's going to be cited/quoted often. But that doesn't mean it changed the standard or that patents are going to start being invalidated at a higher rate due to indefiniteness.

But, that's really besides the point. Even if I'm completely wrong on everything about Nautilus, that's no reason to disregard everything else I say. Even Einstein had his cosmological constant, but he still managed to be right about some things. Engage in the debate or don't. But don't be dismissive without substance.


You said Nautilus's impact is "likely to be nil." But the Federal Circuit stated this in the Interval case:

Although absolute or mathematical precision is not required, it is not enough, as some of the language in our prior cases may have suggested, to identify “some standard for measuring the scope of the phrase….The Supreme Court explained that a patent does not satisfy the definiteness requirement of § 112 merely because “a court can ascribe some meaning to a patent’s claims.” Nautilus, 134 S. Ct. at 2130.


The bolded is at least a clear distinction of previous Federal Circuit case law, so I'm not sure how you can seriously argue that Nautilus's effect will be nil. It's already had an effect.

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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 » Mon Jan 19, 2015 2:31 am

will you guys quit arguing about 112 and tell me what to do with my life

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

Postby ExBiglawAssociate » Mon Jan 19, 2015 2:41 am

fats, just do pros, bro

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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 » Mon Jan 19, 2015 2:43 am

Biglaw_Associate_V20 wrote:fats, just do pros, bro

you think? i worked at a pros shop 1L summer and it seemed like kind of a dead end

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

Postby JohannDeMann » Mon Jan 19, 2015 3:01 am

Work until you get fired and then ride out unemployment while you get your life together like all lawyers do. Open up your own small shop doing whatever and hope you're alright.

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

Postby ExBiglawAssociate » Mon Jan 19, 2015 4:00 am

fats provolone wrote:
Biglaw_Associate_V20 wrote:fats, just do pros, bro

you think? i worked at a pros shop 1L summer and it seemed like kind of a dead end

lol. lit is the real dead end. all the pros dudes i know complain a lot but generally don't worry about their long-term job prospects. all the lit bros i know are shitting themselves over wtf they will do after not making partner




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