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 » Mon Jan 19, 2015 4:09 pm

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.

We're not saying it has no change on the substance of the law. We're saying that the change won't impact the amount of work available to patent practitioners. You can still argue the same cases -- you just argue them under a slightly different rule.

In order to say that the change will impact the amount of patent litigation work, you have to believe that there is a substantial number of cases that will not be brought under the new standard but that would have been brought under the old standard. Any claim that was at least arguable under the old standard is still arguable under the new standard. Maybe there's a tiny fraction of cases that are much weaker post-Nautilus. But the impact on volume of work seems like it will be nil or approaching nil.

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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 4:11 pm

well if indefiniteness becomes stronger you have patents getting killed earlier (at claim construction) = less work

but it's pretty ridiculous to fixate on this one thing in the context of all the other shit. no one is saying nautilus on its own is going to destroy patent litigation.

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

Postby kcdc1 » Mon Jan 19, 2015 6:22 pm

I agree that mandatory fee shifting could have a significant impact. Alice is significant too, but its effect will be primarily limited to the software/business methods fields. Of course, there has been a ton of lit work in those fields over the past decade, so that's a meaningful hit.

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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 10:26 pm

fats provolone wrote:but it's pretty ridiculous to fixate on this one thing in the context of all the other shit. no one is saying nautilus on its own is going to destroy patent litigation.


Yeah, I originally listed it as yet another bad sign, and that's what I think it's most useful for: it's just another sign of the direction things are going in. Even if it only barely nudged the indefiniteness standard, it still moved it in a direction that is bad for patent litigators, especially with claim construction being argued more and more as a separate issue involving mini-expert reports, etc. before even getting to trial (which in and of itself is a sign of the bad direction patent lit is headed toward). It's part of the larger message the Fed Cir and SCOTUS is sending re patents in general: TOO MANY SHITTY PATENTS are being asserted in litigation.

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

Postby anonymuos » Tue Jan 20, 2015 3:24 am

If you really want to look at developments in CAFC law that's portending doom, look to VirnetX. Damages is an underrated aspect of the patent litigation model. If there's no way for the jury to award damages without getting overturned, then patent litigation will surely fall. That's an actual pitfall that could happen. Well, that and Congress getting involved. I tend to think the damages aspect will shake out, but it's a legitimate concern right now.

But, I remain unconvinced by your sky is falling argument. There's still a difference between maturing and imploding. People called the demise of dot-coms in the early 2000s an implosion, but really it was a sign of maturation. The businesses with poor business models failed. As it should be. But that didn't mean all dot-com businesses were awful. Similar deal here -- yes, the trend is to get rid of bad patents. As it should be. But that doesn't mean all patents are awful or that all patent litigation will die. Counter this argument, then we have a thread.

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

Postby Stevoman » Tue Jan 20, 2015 11:27 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


Depends on your definition of "dead end" I guess. If you're looking for some pie-in-the-sky "I'm helping the world!" job, then sure patent pro is "dead end." After you mature a bit, you realize that 99% of the jobs in this world are irrelevant "dead end" jobs.

The reality is that a good prosecution boutique is a fast-moving place to work, pays at (or in my case more) than biglaw, has a shorter partnership track, and has great in-house exit options. If that's "dead end," then we might as well go back to engineering.

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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 » Tue Jan 20, 2015 11:29 am

Stevoman wrote:
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


Depends on your definition of "dead end" I guess. If you're looking for some pie-in-the-sky "I'm helping the world!" job, then sure patent pro is "dead end." After you mature a bit, you realize that 99% of the jobs in this world are irrelevant "dead end" jobs.

The reality is that a good prosecution boutique is a fast-moving place to work, pays at (or in my case more) than biglaw, has a shorter partnership track, and has great in-house exit options. If that's "dead end," then we might as well go back to engineering.

lol @ mature a little bit

i did not have the same experience as you. partnership prospects seemed almost as unrealistic as biglaw. maybe my experience was unrepresentative though.

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

Postby Stevoman » Tue Jan 20, 2015 11:48 am

Partnership prospects are unrealistic in general. It's just that for most smaller firms, if you do somehow manage to win the partnership lottery, you're probably looking at 5-7 years instead of 7-9 years.

And sorry about the mature bit, but that's just a dose the reality. The children on this board think they're going to be Lt. Daniel Kaffee when they graduate and get their NYC biglaw gig; in reality they're going to be Peter Gibbons.

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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 » Tue Jan 20, 2015 12:03 pm

I'm with you but it was laughably off the mark for me

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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 » Tue Jan 20, 2015 12:21 pm

and now claim construction deference. that's annoying

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

Postby Stevoman » Tue Jan 20, 2015 1:02 pm

This ultimate interpretation is a legal con­clusion. The appellate court can still review the district court’s ultimate construction of the claim de novo.


Most of it is still a matter of law. Only underlying factual disputes are deferred on (e.g., what is the level of ordinary skill in the art?) .

I don't see this changing much, besides no more re-litigating facts before the CAFC. And that change was long overdue. Patent litigation is still going to make or break on Markman and be a huge point of appellate litigation. In fact, it's probably going to be more work for litigators: now there's arguing on appeal if something was an issue of fact/law.

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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 » Tue Jan 20, 2015 1:05 pm

yea i just liked having a redo at the fed cir.

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

Postby Anonymous User » Tue Jan 20, 2015 1:31 pm

What it seems like to me (and several partners voiced the same thing this AM) is that it now opens the door for arguments that Markman hearings now need to be rolled into trials if they involve factual findings.

Taken to its extremes, that means summary judgment would be a thing of the past anytime there's a disputed claim construction.

If so, likely a further decrease in filings, but more work if you get one on the hook.

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

Postby Desert Fox » Tue Jan 20, 2015 2:24 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.


1) They are.

2) IPR work is way more efficient if the case is stayed.

3) IPR could start knocking down patents at a much higher rate than district court which means less litigation. If some troll who sues 5 billion small companies get its patents KO'd after 9 months, it is all over.

4) IPR free rates have been generally lower since prosecution bros were doing 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 » Tue Jan 20, 2015 2:25 pm

maybe I'll try to get on some iprs and transition into pros/IPR practice

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

Postby Desert Fox » Tue Jan 20, 2015 2:33 pm

biglawV20 outted himself as Quinn ITT right?

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

Postby kcdc1 » Tue Jan 20, 2015 2:36 pm

What it seems like to me (and several partners voiced the same thing this AM) is that it now opens the door for arguments that Markman hearings now need to be rolled into trials if they involve factual findings.

Interesting argument, but I highly doubt it would succeed -- it would essentially overrule the functional rationale in Markman. Still, the 7th Amendment is a thing.

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

Postby Desert Fox » Tue Jan 20, 2015 2:37 pm

The only real worry for people with a tech background should be what happens if patent trolling is successfully ended. Alice won't do that because business method and software is only part of patent trolling. They'll just move into other techs.

The good patent trolls that great a lot of work for biglaw are the ones who buy oldish patents from legit companies. These patents usually aren't total bullshit anyway.

Fee shifting is the only thing I'm legitimately afraid of. Hopefully trial attorney lobby throws tons of money at lobbying against that. If that passes, it's the first step to the end of trial lawyers making big money.

But even the free shifting can probably be bullshitted. Just organize patent trolls as independent organizations per portfolio.

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

Postby Desert Fox » Tue Jan 20, 2015 2:38 pm

fats provolone wrote:maybe I'll try to get on some iprs and transition into pros/IPR practice


high tech trade secrets bro. $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$4

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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 » Tue Jan 20, 2015 2:45 pm

^ explain pls.

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

Postby Dr. Review » Tue Jan 20, 2015 3:09 pm

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


IPNav wrote:The impact will be more significant in tech (initially). Wait for Alice to really set in and the whole Alice/IPR/fee shifting impact will be evident across the board. Maybe move to prosecution side? The ones that litigators look down on now, will soon be their bosses.

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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 » Tue Jan 20, 2015 3:12 pm

i mean i have a bar # so its a possibility. dealing with examiners every day seems pretty shitty. but lawyers aren't much better. my firm doesn't do pros tho (besides iprs)

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

Postby Anonymous User » Tue Jan 20, 2015 3:15 pm

My firm already brought on IPR guys from a Pros shop.

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

Postby Dr. Review » Tue Jan 20, 2015 3:35 pm

fats provolone wrote:i mean i have a bar # so its a possibility. dealing with examiners every day seems pretty shitty. but lawyers aren't much better. my firm doesn't do pros tho (besides iprs)


I'm a pros guy. The extent to which I would say that I "deal with examiners" is much less frequent than daily. If you consider the office actions themselves to be dealing with the examiners, then the frequency is upped, but it still does not apply to application drafting. For me, the slight negatives associated with the infrequent examiner that refuses to accept textbook definitions of well known terms are generally overshadowed by the positives that come with learning new technologies regularly.

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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 » Tue Jan 20, 2015 3:37 pm

Dr. Review wrote:
fats provolone wrote:i mean i have a bar # so its a possibility. dealing with examiners every day seems pretty shitty. but lawyers aren't much better. my firm doesn't do pros tho (besides iprs)


I'm a pros guy. The extent to which I would say that I "deal with examiners" is much less frequent than daily. If you consider the office actions themselves to be dealing with the examiners, then the frequency is upped, but it still does not apply to application drafting. For me, the slight negatives associated with the infrequent examiner that refuses to accept textbook definitions of well known terms are generally overshadowed by the positives that come with learning new technologies regularly.

yea fair enough. my only experience is as a summer associate so im not exactly an expert. i was doing phone interviews like every day. probably because they are annoying.

you get lit guys switching over? i wasn't really planning on switching firms but it kinda feels like if you do lit for very long at all you're locked in




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