U.S. patent litigation practice has evolved over the past several years, driven primarily by the 2012 America Invents Act that introduced the Patent Trial and Appeal Board (PTAB) and established inter partes reviews, and the Supreme Court’s 2017 TC Heartland ruling, which changed the distribution of patent disputes at the various district courts. Additionally, the overall number of patent disputes involving non-practicing entities (NPE) has decreased, and the number of patent disputes at the International Trade Commission (ITC) has increased.
These changes clearly affect how firms and young litigators maintain and build their reputations. Finnegan partner Mareesa Frederick considers these changes a great opportunity for attorneys that “ultimately gives more associates an opportunity to get real, substantive experience very early on in their careers,” providing “excellent training.” Thanks to the rapid pace of ITC litigation, “associates are often given opportunities that may be difficult to obtain in slower-moving district court cases. Many associates’ first deposition or first cross-examination of a witness occurs during an ITC case,” Frederick said.
The importance of staying within budget and providing service based on the client’s business goals is more important than ever. This provides a challenge to the next generation of trial lawyers and makes it critically important to build teams that can deliver and think outside the box. According to Finnegan partner Frank DeCosta, “for many types of cases, teams are now smaller than they used to be.” Litigators have to be “nimble” and “play multiple roles within a case,” while balancing parallel cases across venues. In response to financial pressures on clients, cases must have leaner staffing, which, DeCosta notes, “has been a career development opportunity for young lawyers” who must now “ramp up very quickly.”
