What Does a Patent Litigator Do?
Could This Be the Law Career for You?
In recent years, one of the hottest areas of litigation has been intellectual property, especially patent cases. Enormous cases such as Apple v. Samsung made the front pages of newspapers across the country, but countless smaller cases kept thousands of large law firm litigators busily billing hour after hour.
What do patent litigators do all day, and who’s the field a good fit for? Could this be the perfect area of law for you?
What Do Patent Litigators Do?
In addition to the typical work of a litigator—propagating and responding to discovery requests, taking and defending depositions, drafting documents for the court, engaging in legal research, and so on— patent litigators spend a lot of time looking at prior technology (called “prior art”) and working with technical experts. If you’ve got a technical bent, this might be just the field for you!
At the most basic level, a defendant can defend against a claim of patent infringement in two ways—by claiming the patent is invalid, and by claiming they don’t infringe on it (if it is found to be valid). To invalidate a patent, it’s necessary to show that it wasn’t actual a novel invention when the patent was granted, which can be done by showing that someone else had “invented” the same thing earlier. Therefore, much of a patent litigator’s time (especially at the associate level) is spent looking for earlier similar technologies that predated the patented concept. Convince a judge or jury that sufficient relevant prior art exists, and you can invalidate the underlying patent. (On the flip side, a prosecution-side patent litigator is going to spend a lot of time making arguments about why the prior art introduced by the defendants is distinguishable from the claimed invention.) In all cases, these arguments require expert testimony, typically from professors in the field, to explain to the court what the underlying claimed technology does and how earlier discoveries were (or were not) similar.
Assuming the patent is found to be valid, the argument shifts to whether the defendant’s technology is covered by the patent. This is driven by a process known as “claim construction,” where the parties engage in a deep, almost metaphysical, reading of the patent claims (i.e. the actual written patent language). Hundreds of pages of briefs might be written on the meaning of a single phrase (one likely given little to no attention when the claims were originally drafted). If you have a low tolerance for discussions of the meaning of “is,” you’ll find claim construction maddening. If, however, you love carefully reading language (and constructing creative arguments about what impenetrable phrases mean), you’ll love it!
What Background Is a Good Fit for Patent Litigation?
You might expect that a technical background would be required for patent litigation, but that’s not necessarily the case. Certainly, technical training—especially in computer science, engineering, and biology—is useful, but lots of so-called “patent litigators” were English majors! In most cases, they started as general litigators and shifted into the field as demand grew.
That being said, most of those people wouldn’t be hired as patent litigation associates today. Increasingly, firms are looking for young patent litigators with a technical background, even if they don’t have formal training or a degree. Being able to read code, and talk intelligently to software engineers, is a huge plus for a patent litigator doing work for software companies. For hardware patent disputes, at least one lawyer on the team will probably also have an electrical engineering degree, although there’s likely to be a “non-technical” attorney too, who acts as the front man and gives the opening and closing arguments at trial and examines the non-technical witnesses.
In short, patent litigation is an excellent fit for attorneys with a technical background, but the lack of such a background isn’t necessarily disqualifying!