patent litigation questions Forum

[Anonymous User]

All of the below relate to patent litigation only. Not prosecution. Please answer accordingly. Thanks guys.

1. What are some good firms out there? Let's stick to NY and DC.

2. What is the importance of clerkships for patent litigation?

3. What is the relevance of taking the patent bar?

4. What are the differences between patent boutiques and GP patent litigation groups? <- think purely patent litigation please. I know that GP groups rarely do prosecution. But I'm focused on litigation.

I'm working for a firm which doesn't have a particularly big patent litigation practice. But it is a v50 and has a good litigation group (general commercial). And I'm interested in interviewing as a 3L elsewhere, thus all these questions. Thanks.

[azntwice]

1. What are some good firms out there? Let's stick to NY and DC.
Weil, Quinn Emmanuel, Sidley, Kirkland, Mayer Brown, Jones Day, White & Case, Paul Hastings, Kenyon, Fitzpatrick, Fish & Richardson, Latham (maybe). Paul Weiss and Skadden are starting up their groups so we'll see how they fare.

2. What is the importance of clerkships for patent litigation?
I don't think they are important at all. I have many friends who just went straight into the field. Having a science degree is more important IMO.

3. What is the relevance of taking the patent bar?
You will not need it to do your job, but it is a helpful credential to have when you are interviewing for jobs (shows that you're committed to IP), esp if you don't have a science degree (you can take the patent bar by taking enough science classes to qualify).

4. What are the differences between patent boutiques and GP patent litigation groups? <- think purely patent litigation please. I know that GP groups rarely do prosecution. But I'm focused on litigation.
Not entirely sure about this one, but I think GP groups tend to get all the big clients (think Apple, Samsung, Boeing, GlaxoSmithKline, Pfizer etc). GP groups have the resources of a big firm that boutiques don't.

[patentlaworbust]

1. What are some good firms out there? Let's stick to NY and DC.
Weil, Quinn Emmanuel, Sidley, Kirkland, Mayer Brown, Jones Day, White & Case, Paul Hastings, Kenyon, Fitzpatrick, Fish & Richardson, Latham (maybe). Paul Weiss and Skadden are starting up their groups so we'll see how they fare.

2. What is the importance of clerkships for patent litigation?
I don't think they are important at all. I have many friends who just went straight into the field. Having a science degree is more important IMO.

3. What is the relevance of taking the patent bar?
You will not need it to do your job, but it is a helpful credential to have when you are interviewing for jobs (shows that you're committed to IP), esp if you don't have a science degree (you can take the patent bar by taking enough science classes to qualify).

4. What are the differences between patent boutiques and GP patent litigation groups? <- think purely patent litigation please. I know that GP groups rarely do prosecution. But I'm focused on litigation.
Not entirely sure about this one, but I think GP groups tend to get all the big clients (think Apple, Samsung, Boeing, GlaxoSmithKline, Pfizer etc). GP groups have the resources of a big firm that boutiques don't.

This. I'll add just a bit...


2. Clerkships can offer about as much to a candidate in IP lit as they can for any other practice area. The benefit is that you are gaining practical experience in a (hopefully) relevant area of law which will enhance your legal comprehension when you begin practicing. For patent lit specifically, you're going to want to limit your clerkship to the Federal Circuit or possibly Fed District close to around the DC area (or other district courts which are particularly known to handle patent cases). Are clerkships necessary? Absolutely not. But do some firms see them as desirable? Sure, and some will even pay you a nice bonus (~$30k) for the experience you're bringing.

3. Having the patent bar under your belt will open up more opportunities to you for patent lit, although it is certainly not required. Unless the firm is particularly known for doing only litigation, they will likely have a good bit of prosecution on their plate as well. A lawyer who can do the client's prosecution as well as their subsequent litigation (if it comes to that) will be more valuable to the firm and to the client. ITE, it is best not to limit your interest to ONLY patent lit, but to express your interest in trying both out. Doing purely litigation may burn you out rather quickly, so having a healthy balance of the two may keep you more sane.

4. Big companies will sometimes prosecute their patents with boutiques (because they are often much less expensive) and because prosecution is generally a lot more straight forward. However, companies will seek out a large GP firm when the need for litigation arises. GP firms have greater resources at their disposal and also a more expansive selection of skilled trial attorneys. In the eyes of the client, with a multi-million-dollar patent on the line, it's worth paying the higher price-tag if it means better odds of success.


HTH

[Anonymous User]

1. What are some good firms out there? Let's stick to NY and DC.
Weil, Quinn Emmanuel, Sidley, Kirkland, Mayer Brown, Jones Day, White & Case, Paul Hastings, Kenyon, Fitzpatrick, Fish & Richardson, Latham (maybe). Paul Weiss and Skadden are starting up their groups so we'll see how they fare.

And Finnegan, of course.

[wiseowl]

There's some thought that the patent bar may become a little more important for litigators going forward given all the new post-grant stuff in the AIA. The goal was to present cheaper, faster alternatives to district court lit. Whether that happens, who knows.

[englawyer]

i think clerkships for patent lit are highly underrated in this thread. sure, its a bit less important than for normal litigation because there is a limited supply of qualified attorneys but its still a premium credential.

see, e.g., Keker Van Nest which has 90% of attorneys with clerkships: --LinkRemoved-- (among other things, doing work for HTC in Apple v. HTC and for Google in Google v. Oracle).

[englawyer]

btw, for boutique vs GP. i have seen it described as boutique="engineers practicing law" whereas GP="lawyers with technical background". boutiques also have better work/life balance, but GP is generally more lucrative.

[Anonymous User]

btw, for boutique vs GP. i have seen it described as boutique="engineers practicing law" whereas GP="lawyers with technical background". boutiques also have better work/life balance, but GP is generally more lucrative.

So what about large IP firms like Finnegan and Fish? If you are getting paid market, do you work just as hard as the GP firms, or are they still closed to being a true boutique?

[Anonymous User]

i think clerkships for patent lit are highly underrated in this thread. sure, its a bit less important than for normal litigation because there is a limited supply of qualified attorneys but its still a premium credential.

see, e.g., Keker Van Nest which has 90% of attorneys with clerkships: --LinkRemoved-- (among other things, doing work for HTC in Apple v. HTC and for Google in Google v. Oracle).

+1
As someone who clerked in a very patent-heavy and prestigious district court and on the Federal Circuit, I can tell you that it is invaluable so long as you are clerking in a patent-heavy district or on the Federal Circuit. I would not clerk on any other appellate court if you know you want to be a patent litigator. That is a somewhat questionable use of a patent litigator's time. A non-patent district clerkship has a lot of value (way more than a non-Fed. Cir. appellate court) because you understand how litigation works. But a patent-oriented district clerkship is the single best thing you can do for your career (I'm super biased, obviously); it is unlike any other clerkship or experience you'll get even as a practicing attorney.

When I entered a law firm after having clerked for two years on those two courts, I came in at an extremely high level of sophistication for patent litigation. In several ways, I came in way higher than even junior associates returning from non-Fed. Cir. or non-patent districts. Was I behind in some aspects in understanding how a law firm works and how discovery works? Yes, of course. I had never taken a deposition. But I've more than made up for that by now. I'd do it again a hundred times over.

It is one thing to learn discovery. It is quite another to understand what works in a Markman, AND what will work on appeal.

[r6_philly]

i think clerkships for patent lit are highly underrated in this thread. sure, its a bit less important than for normal litigation because there is a limited supply of qualified attorneys but its still a premium credential.

see, e.g., Keker Van Nest which has 90% of attorneys with clerkships: --LinkRemoved-- (among other things, doing work for HTC in Apple v. HTC and for Google in Google v. Oracle).

+1
As someone who clerked in a very patent-heavy and prestigious district court and on the Federal Circuit, I can tell you that it is invaluable so long as you are clerking in a patent-heavy district or on the Federal Circuit. I would not clerk on any other appellate court if you know you want to be a patent litigator. That is a somewhat questionable use of a patent litigator's time. A non-patent district clerkship has a lot of value (way more than a non-Fed. Cir. appellate court) because you understand how litigation works. But a patent-oriented district clerkship is the single best thing you can do for your career (I'm super biased, obviously); it is unlike any other clerkship or experience you'll get even as a practicing attorney.

When I entered a law firm after having clerked for two years on those two courts, I came in at an extremely high level of sophistication for patent litigation. In several ways, I came in way higher than even junior associates returning from non-Fed. Cir. or non-patent districts. Was I behind in some aspects in understanding how a law firm works and how discovery works? Yes, of course. I had never taken a deposition. But I've more than made up for that by now. I'd do it again a hundred times over.

It is one thing to learn discovery. It is quite another to understand what works in a Markman, AND what will work on appeal.

Thanks for the insight. So would Delaware be a worth while district? Should be more valuable than 3rd Circuit then?

[Anonymous User]

i think clerkships for patent lit are highly underrated in this thread. sure, its a bit less important than for normal litigation because there is a limited supply of qualified attorneys but its still a premium credential.

see, e.g., Keker Van Nest which has 90% of attorneys with clerkships: --LinkRemoved-- (among other things, doing work for HTC in Apple v. HTC and for Google in Google v. Oracle).

+1
As someone who clerked in a very patent-heavy and prestigious district court and on the Federal Circuit, I can tell you that it is invaluable so long as you are clerking in a patent-heavy district or on the Federal Circuit. I would not clerk on any other appellate court if you know you want to be a patent litigator. That is a somewhat questionable use of a patent litigator's time. A non-patent district clerkship has a lot of value (way more than a non-Fed. Cir. appellate court) because you understand how litigation works. But a patent-oriented district clerkship is the single best thing you can do for your career (I'm super biased, obviously); it is unlike any other clerkship or experience you'll get even as a practicing attorney.

When I entered a law firm after having clerked for two years on those two courts, I came in at an extremely high level of sophistication for patent litigation. In several ways, I came in way higher than even junior associates returning from non-Fed. Cir. or non-patent districts. Was I behind in some aspects in understanding how a law firm works and how discovery works? Yes, of course. I had never taken a deposition. But I've more than made up for that by now. I'd do it again a hundred times over.

It is one thing to learn discovery. It is quite another to understand what works in a Markman, AND what will work on appeal.

Thanks for the insight. So would Delaware be a worth while district? Should be more valuable than 3rd Circuit then?

I'll be blunt. Delaware is hit or miss depending on which judge you get. It has a reputation as a rocket docket. But Wilmington sucks. And depending on which judge you get, you could be in good shape. If I had to pick a judge to clerk for in Delaware, it'd be Judge Robinson. Your whole experience as a law clerk is a function of which judge you get. If a judge has no friggin clue what they're doing with a patent case, you will not learn from them. You will only learn from a judge who knows how the job is done. An experienced patent judge. There are maybe a dozen of them in the country at the district level. And they're not very hard to find.

For example, you could end up clerking in the Northern District of California for a judge who really doesn't know much about patents, despite being in one of the hottest patent dockets in the country (well, traditionally), and take away less value than clerking in the Northern District of Illinois for the Chief Judge there - who knows a whole lot more about patents than most judges.

[gotmilk?]

i think clerkships for patent lit are highly underrated in this thread. sure, its a bit less important than for normal litigation because there is a limited supply of qualified attorneys but its still a premium credential.

see, e.g., Keker Van Nest which has 90% of attorneys with clerkships: --LinkRemoved-- (among other things, doing work for HTC in Apple v. HTC and for Google in Google v. Oracle).

+1
As someone who clerked in a very patent-heavy and prestigious district court and on the Federal Circuit, I can tell you that it is invaluable so long as you are clerking in a patent-heavy district or on the Federal Circuit. I would not clerk on any other appellate court if you know you want to be a patent litigator. That is a somewhat questionable use of a patent litigator's time. A non-patent district clerkship has a lot of value (way more than a non-Fed. Cir. appellate court) because you understand how litigation works. But a patent-oriented district clerkship is the single best thing you can do for your career (I'm super biased, obviously); it is unlike any other clerkship or experience you'll get even as a practicing attorney.

When I entered a law firm after having clerked for two years on those two courts, I came in at an extremely high level of sophistication for patent litigation. In several ways, I came in way higher than even junior associates returning from non-Fed. Cir. or non-patent districts. Was I behind in some aspects in understanding how a law firm works and how discovery works? Yes, of course. I had never taken a deposition. But I've more than made up for that by now. I'd do it again a hundred times over.

It is one thing to learn discovery. It is quite another to understand what works in a Markman, AND what will work on appeal.

If you're feeling charitable, I'd love to be able to ask you some questions, since I'm currently applying for district court clerkships, with the plan being to do a Fed Cir clerkship afterward. PM me if you're willing?

[Anonymous User]

If you're feeling charitable, I'd love to be able to ask you some questions, since I'm currently applying for district court clerkships, with the plan being to do a Fed Cir clerkship afterward. PM me if you're willing?

I feel charitable but not interested in losing anonymity - mostly because there are not THAT many double clerks in the patent game in the entire national BAR . But happy to take questions here.

Frankly, the district court judge you get holds more value than whatever Fed. Cir. clerkship you end up getting, even if its with the good Chief Judge or some of the other entertaining judges. If you want to argue appeals before the Federal Circuit or go work at the PTO Solicitor's office, sure - go clerk on the appellate court. But if you want to be a line litigator - you get more bang for your buck with a patent district clerkship than anywhere else (again, depending on which judge you get).

[patentlaworbust]

Relevant to clerking; for those of you interested in Patent litigation specifically: http://amlawdaily.typepad.com/Lemley.pdf

Although the document is older (2010), it gives you a good idea (inter alia) of which District Courts see the most Patent litigation action, which Districts are the most Plaintiff-friendly, what percentage of cases actually go to trial. I'm sure there is a more updated report out there, but I couldn't find it by doing a quick search.


Here's the top bunch taken from the document in what I think are the more interesting categories:

Most cases filed
1) C.D. of Cali --> 2289
2) N.D. of Cali --> 1424
3) N.D. of Illinois --> 1233

Claimant win rate
1) N.D. of Texas --> 55.1% (405 total cases)
2) M.D. of Florida --> 46.3% (429 total cases)
3) D. of Nevada --> 46.2% (198 total cases)

Percentage of cases that go to Trial
1) D. of Delaware --> 11.8% (1017 total cases)
2) E.D. of Texas --> 8.0% (1024 total cases)
3) W.D. of Wisconsin --> 7.4% (256 total cases)
4) E.D. of Virginia --> 6.4% (373 total cases)


Other tables in the report: Time to Resolution of Case, Time to Trial, and Lemley's rankings.

[r6_philly]

I'll be blunt. Delaware is hit or miss depending on which judge you get. It has a reputation as a rocket docket. But Wilmington sucks. And depending on which judge you get, you could be in good shape. If I had to pick a judge to clerk for in Delaware, it'd be Judge Robinson. Your whole experience as a law clerk is a function of which judge you get. If a judge has no friggin clue what they're doing with a patent case, you will not learn from them. You will only learn from a judge who knows how the job is done. An experienced patent judge. There are maybe a dozen of them in the country at the district level. And they're not very hard to find.

For example, you could end up clerking in the Northern District of California for a judge who really doesn't know much about patents, despite being in one of the hottest patent dockets in the country (well, traditionally), and take away less value than clerking in the Northern District of Illinois for the Chief Judge there - who knows a whole lot more about patents than most judges.

Again thanks for the tip. I am not completely sure about clerking yet, but I will make sure to be selective if I decide to apply. I am not sure if Fed. Cir. is in the cards, but I am pretty interested in a DC clerkship. Sounds like a very beneficial experience.

[Anonymous User]

I'll just add - any of those districts are fine. Seek out well respected patent jurists in those courts. Again, this will take you perhaps twenty minutes on Google.

[gotmilk?]

If you're feeling charitable, I'd love to be able to ask you some questions, since I'm currently applying for district court clerkships, with the plan being to do a Fed Cir clerkship afterward. PM me if you're willing?

I feel charitable but not interested in losing anonymity - mostly because there are not THAT many double clerks in the patent game in the entire national BAR . But happy to take questions here.

Frankly, the district court judge you get holds more value than whatever Fed. Cir. clerkship you end up getting, even if its with the good Chief Judge or some of the other entertaining judges. If you want to argue appeals before the Federal Circuit or go work at the PTO Solicitor's office, sure - go clerk on the appellate court. But if you want to be a line litigator - you get more bang for your buck with a patent district clerkship than anywhere else (again, depending on which judge you get).

Fair. What, in your view, is the added value of the 2nd year Fed Cir clerkship?

[gotmilk?]

Relevant to clerking; for those of you interested in Patent litigation specifically: http://amlawdaily.typepad.com/Lemley.pdf

Although the document is older (2010), it gives you a good idea (inter alia) of which District Courts see the most Patent litigation action, which Districts are the most Plaintiff-friendly, what percentage of cases actually go to trial. I'm sure there is a more updated report out there, but I couldn't find it by doing a quick search.


Here's the top bunch taken from the document in what I think are the more interesting categories:

Most cases filed
1) C.D. of Cali --> 2289
2) N.D. of Cali --> 1424
3) N.D. of Illinois --> 1233

Claimant win rate
1) N.D. of Texas --> 55.1% (405 total cases)
2) M.D. of Florida --> 46.3% (429 total cases)
3) D. of Nevada --> 46.2% (198 total cases)

Percentage of cases that go to Trial
1) D. of Delaware --> 11.8% (1017 total cases)
2) E.D. of Texas --> 8.0% (1024 total cases)
3) W.D. of Wisconsin --> 7.4% (256 total cases)
4) E.D. of Virginia --> 6.4% (373 total cases)


Other tables in the report: Time to Resolution of Case, Time to Trial, and Lemley's rankings.

Up to date info is on lexmachina.com, but you need a login.

[Anonymous User]

If you're feeling charitable, I'd love to be able to ask you some questions, since I'm currently applying for district court clerkships, with the plan being to do a Fed Cir clerkship afterward. PM me if you're willing?

I feel charitable but not interested in losing anonymity - mostly because there are not THAT many double clerks in the patent game in the entire national BAR . But happy to take questions here.

Frankly, the district court judge you get holds more value than whatever Fed. Cir. clerkship you end up getting, even if its with the good Chief Judge or some of the other entertaining judges. If you want to argue appeals before the Federal Circuit or go work at the PTO Solicitor's office, sure - go clerk on the appellate court. But if you want to be a line litigator - you get more bang for your buck with a patent district clerkship than anywhere else (again, depending on which judge you get).

Fair. What, in your view, is the added value of the 2nd year Fed Cir clerkship?

Winning district arguments is really about minimizing reversal risk. Why? District judges care deeply about minimizing their own reversal risk. That's their "magna" or "coif" - to make that relatable to you.

You will have a very sophisticated understanding of reversal risk when you come out of the Federal Circuit clerkship. That insight, in turn, will improve your line litigation work with good patent judges who care about their own reversal risk. When a litigator argues a low-reversal-risk patent argument in any patent motion, a good judge who knows what she or he is doing will recognize that and will likely affirm.

Also, you'll just be regarded in a different way in patent circles than if you didn't clerk on that court. This latter reason is pretty dumb. But that's the way the ball rolls, like it or not.

Finally, you'll be pretty tight with a very small group of law clerks on the Federal Circuit, mostly because unlike other circuits, this court is all housed in one building and operates quite like a law firm. That network has a lot of value.

You are probably aware - unless nobody's told you yet - that both you and I are entering this industry a decade or two too late. Patent litigation has been a moneymaker for some time. That is likely not going to continue, no matter how hard the Federal Circuit or some trial courts or members of the patent bar try to keep the goose alive.

[Anonymous User]

What do you think was key in getting your clerkships? Do you think for the few patent judges that you need a certain connection (like a recommender who is well-known in patent circles)? Were there different things that you think were crucial to securing the Fed Cir clerkship as opposed to the DCt clerkship?

[gotmilk?]

If you're feeling charitable, I'd love to be able to ask you some questions, since I'm currently applying for district court clerkships, with the plan being to do a Fed Cir clerkship afterward. PM me if you're willing?

I feel charitable but not interested in losing anonymity - mostly because there are not THAT many double clerks in the patent game in the entire national BAR . But happy to take questions here.

Frankly, the district court judge you get holds more value than whatever Fed. Cir. clerkship you end up getting, even if its with the good Chief Judge or some of the other entertaining judges. If you want to argue appeals before the Federal Circuit or go work at the PTO Solicitor's office, sure - go clerk on the appellate court. But if you want to be a line litigator - you get more bang for your buck with a patent district clerkship than anywhere else (again, depending on which judge you get).

Fair. What, in your view, is the added value of the 2nd year Fed Cir clerkship?

You are probably aware - unless nobody's told you yet - that both you and I are entering this industry a decade or two too late. Patent litigation has been a moneymaker for some time. That is likely not going to continue, no matter how hard the Federal Circuit or some trial courts or members of the patent bar try to keep the goose alive.

I've heard this claim a number of times, although I've also heard it rebutted. So, just to get your perspective, why do you say that it won't continue to be a moneymaker?

[Anonymous User]

What do you think was key in getting your clerkships? Do you think for the few patent judges that you need a certain connection (like a recommender who is well-known in patent circles)? Were there different things that you think were crucial to securing the Fed Cir clerkship as opposed to the DCt clerkship?

My first judge was the district judge, who hired me through OSCAR. He or she recommended me to the Federal Circuit judge when I mentioned an interest.

[Anonymous User]

I've heard this claim a number of times, although I've also heard it rebutted. So, just to get your perspective, why do you say that it won't continue to be a moneymaker?

There is a phenomenon called group polarization that runs rampant among patent circles. I'll just say you should be a detached (keyword, detached) observer of the value of patents as an asset to businesses - and where that trajectory is headed. And you should keep an eye on how businesses are responding to those changes in the value of patents as an asset - and where THAT more important trajectory is headed.

It is an excellent idea, I think, for a patent litigation associate to diversify the portfolio - so to speak. General commercial litigation is actually more challenging than patent litigation and can actually make you a better patent litigator. So in that sense, I would even go for a non-patent clerkship (on either district or appellate level) - again, depending on the damn judge.

Sorry for qualifying every comment regarding clerkships with "depends on the judge." The judge is your firm for that one year. And I have heard too many horror stories and seen too much disparity between peoples' clerkship experiences to understate the importance of finding the right fit.

[Julio_El_Chavo]

Clerking is a nice idea, but it's definitely not available for everyone right out of law school. You need top grades from a top law school, and if you have that you can do whatever you want anyway. I know people who graded on to law review at my T10 who did not land a federal clerkship. So unless you absolutely want to work for a firm that requires clerking, like KVN, I think you should plan on working at a firm for a year or two and, if you think it's appropriate, apply for clerkships then. The work experience at a firm will probably give you a leg up in the clerkship hunt.

[Anonymous User]

Clerking is a nice idea, but it's definitely not available for everyone right out of law school. You need top grades from a top law school, and if you have that you can do whatever you want anyway. I know people who graded on to law review at my T10 who did not land a federal clerkship. So unless you absolutely want to work for a firm that requires clerking, like KVN, I think you should work at a firm for a year or two and, if you think it's appropriate, apply for clerkships then. The work experience at a firm will probably give you a leg up in the clerkship hunt.

I agree with parts of this. Although by year three or four, it is extremely hard for most people to give up the income. Also, by that point in your career, the value-added of a district clerkship - while certainly there - is attenuated because of all that you've done as a junior associate. And by year three or four, I'm not sure what extra oomph you could add to your skills by clerking on an appellate court.

One common reason for clerking midway during one's career is lateraling out of big law into something else - academia, government (AUSA), etc. Another reason is lateraling up - although I often wonder about this idea given that clerks for the most part come from pretty decent firms - and the firms north of those firms don't magically hire you after your clerkship (at least based on my cursory observations).

I noticed that at my firm a lot of second or third years simply lost the desire they once had to clerk - relative to how they felt about clerkships as law students. Once you're at a firm, nobody really gives a shit where you clerked or talks about it. It is like law review - nobody actually brings it up. And once nobody's talking about it, junior associates stop giving a shit about it. I once read that teenage girls have a higher statistical chance of getting pregnant if they observe their friends getting pregnant. I guess the same idea operates here.