Category: News Feeds

Unlike in staider areas of law such as ________ (fill-in-your-own blank on this one), patent litigation developments come at us in the IP world with the frequency, power, and fury of a Nazare megawave. Maybe that is an exaggeration, since not every development in the patent world is that momentous, but I think the wave imagery is appropriate. Because patent litigation can be a bumpy ride, even for the most frequent participants. Take the column I wrote less than a month ago, on Apple’s (and other Big Tech compadres’) struggle with the PTAB’s seemingly newfound predilection for issuing discretionary denials in certain IPRs — principally where there was parallel district court litigation that promised to finish sooner than the IPR process would. With Apple being an early example of the consequences of such a denial, as its attempt to avert a $500 million verdict — based in part on a pending IPR — was thwarted by the PTAB’s exercise of its discretionary denial power. The decision against Apple undoubtedly gave succor to other patent holders, particularly those fortunate enough to have secured early trial dates in their pending patent cases. But perhaps any such celebrations were premature, underscoring once again the ever-shifting nature of patent litigation practice, especially before the PTAB.

As anyone with an active PTAB practice knows, it is never really safe to try to predict how a particular panel will apply the various multifactor tests (e.g., NHK-Fintiv, General Plastic, etc.) that the PTAB is fond of establishing on precedential procedural issues. As a fee-driven entity dependent on petitioners deciding to initiate proceedings, the PTAB is surely sensitive to any scenario that discourages filers out of concern that they will not get a fair shake before the tribunal. Moreover, the PTAB has been rightfully praised for its performance during the COVID-19 pandemic, a performance that I highlighted (with the help of Lex Machina) in a column back in August. In fact, I continue to believe that even with the recent increased possibility of discretionary denials: “Pandemic or no pandemic, the PTAB’s outsized role in the patent ecosystem will continue apace.”

The continued attractiveness of the PTAB as a forum for patent defendants is an easy prediction to make, considering how quickly it has moved to dispel any suggestion that the rocket docket/NHK-Fintiv interplay will present an easy path to discretionary denial before the PTAB for patent owners. To illustrate the point, let’s consider a recent PTAB decision — in yet another the case involving Apple — where the PTAB refused to allow a discretionary denial request made by the patent owner, Parus Holdings, Inc., to deny institution of the IPR. Relying heavily on the PTAB’s post-Fintiv informative decision in Sand Revolution, the panel in Parus granted institution in Apple’s favor based on two key facts.

First, it found that COVID-19 uncertainty around the trial court’s (the ever-popular Judge Albright in the Western District of Texas) ability to stick with the proposed trial date cautioned against determining that the PTAB’s final written decision would come after trial would be conducted. Second, it noted that the strength of Apple’s position on the merits favored institution, especially where not much of value had already happened in the trial court related to validity. In short, despite what appeared to be a classic example of a favorable (at least for the defendant) rocket docket/NHK-Fintiv interplay, the PTAB still decided in the favor of the petitioner Apple.

While the result in Parus favored the petitioner, it would be folly to assume that the rocket docket/NHK-Fintiv interplay no longer presents any risk for IPR petitioners. Unsurprisingly, Parus itself moved for rehearing on the PTAB’s institution decision, arguing primarily that since Albright is currently conducting patent trials, the PTAB was mistaken in assuming that the Parus/Apple trial would not go off on its scheduled July 2021 (before the PTAB’s final written decision date) trial date — especially where Apple itself had agreed to that trial date. As of this writing, the PTAB had not yet ruled on the rehearing request. But it will undoubtedly be of interest to those who would to know just how viable the rocket docket/NHK-Fintiv interplay is as a strategy for avoiding IPR risk as a patent owner. Which means it will be important for any patent owner (and their lawyers, and litigation funders, too) considering whether and where to file its patent cases, at a minimum.

Ultimately, the two differing decisions in Apple-filed IPRs underscore the importance of counsel and their clients monitoring the PTAB closely for developments around the discretionary denial issue. While keeping in mind that the PTAB is set up for — and has proven — that it can handle the invalidity aspects of a case at least as well, if not better, than the various approaches to invalidity espoused by different district courts around the country. Whether the rocket docket/NHK-Fintiv interplay resulting in discretionary denial survives additional PTAB scrutiny is clearly up for debate at this point, and further developments beg a watchful eye. It is nice to start to handicap whether SCOTUS will rule for or against the PTAB in Arthrex. But for those practicing in the PTAB trenches, considering how the PTAB taketh and giveth on the discretionary denial issue is more of the moment.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

As I predicted in these pages last month, President Donald Trump nominated Judge Amy Coney Barrett of the Seventh Circuit to replace Justice Ruth Bader Ginsburg on the Supreme Court. And as pretty much everyone predicted, her confirmation hearings went smoothly.

I agree with Adam Liptak of the New York Times, who described Barrett’s “deft” performance as follows: “Speaking without notes, she gave sure-footed accounts of Supreme Court precedents and then, almost without exception, declined to say whether the decisions were correct. Judge Barrett was patient, calm, a little stern and sometimes surprisingly terse when she spoke about the law, easily parrying most questions from the Democratic senators who tried to put her on the spot.”

My only real quibble: Barrett’s response to Senator Amy Klobuchar (D-Minn.) on whether voter intimidation is illegal under federal law. Barrett responded by saying, “I can’t characterize the facts in a hypothetical situation, and I can’t apply the law to a hypothetical set of facts” — but that wasn’t what Klobuchar was asking. The senator was just asking the nominee to describe the general state of the law, which SCOTUS nominees do all the time. So a better response would have been, “Senator, federal law — specifically, 18 U.S. Code § 594 — criminalizes voter intimidation. But as to what conduct constitutes voter intimidation, I can’t characterize the facts in a hypothetical situation.”

In any event, even if her performance was a 9 rather than a 10, Barrett will almost certainly get confirmed to the Supreme Court — most likely the week of October 26, right before Election Day. Replacing a staunch liberal like Ginsburg with a staunch conservative like Barrett — who, I predict, will fall to the left of Justices Clarence Thomas and Samuel Alito but to the right of everyone else on the Court — will have significant consequences for the development of American law.

I don’t believe, however, that having a Justice Barrett on the Supreme Court will be as cataclysmic for the left as some are predicting. When Justice Anthony M. Kennedy announced his retirement, I said that it would not mark “the end of the world” for liberals and progressives — and my prediction has so far turned out to be correct.

As I predicted, Chief Justice Roberts moved to the middle. And as I didn’t predict, Justice Neil Gorsuch has sided with the liberal members of the Court in some important cases, such as Bostock v. Clayton County, holding that Title VII’s protections apply to gay and transgender employees, and McGirt v. Oklahoma, holding that a sizable chunk of eastern Oklahoma remains an Indian reservation — both opinions that Gorsuch didn’t merely join, but actually wrote.

Of course, time will tell what effect replacing RBG with ACB will have on our national jurisprudence. For now, let’s focus on a much more immediate, far less consequential, and much easier to answer question: what will happen to Ginsburg’s law clerks?

As you’ll recall from the most recent Supreme Court clerk hiring roundup, Ginsburg had five clerks working for her at the time of her passing:

1. Jack Boeglin (Yale 2016/Srinivasan/Calabresi)
2. Thaddeus Eagles (NYU 2015/Rakoff (S.D.N.Y.)/Katzmann)
3. Eliza Lehner (Yale 2017/Watford/Furman (S.D.N.Y.))
4. David Louk (Yale 2015/Boasberg (D.D.C.)/Katzmann)
5. Brittany Jones Record (Stanford 2016/Sutton/Millett)

Why five? Thad Eagles was originally hired by the late Justice John Paul Stevens, and the Supreme Court, per its tradition, found him a new home with another justice.

Now the tradition will come into play once again, and RBG’s five clerks for October Term 2020 will be reassigned to other justices. But who will go where?

The Supreme Court is, of course, an institution bound by precedent. And according to precedent, it appears that when law clerks get “orphaned,” they get reassigned to the justices who are closest to their former bosses on the ideological spectrum.

When Chief Justice William H. Rehnquist passed away in 2005, his successor, Chief Justice John Roberts, hired all three of the “orphaned” Rehnquist clerks — Ann O’Connell, Mark Mosier, and Michael Passaportis, in case you’re wondering. (Roberts then supplemented them with two of his former D.C. Circuit clerks, Dan Kearney and Kosta Stojilkovic.)

The new Chief hiring the old Chief’s clerks made perfect sense. The two jurists had similar worldviews — generally conservative, with occasional leftward veering when necessary to protect the Court’s institutional legitimacy — and Roberts, as many of you will recall, was actually a former Rehnquist clerk himself. So that was a very natural fit.

When Justice Antonin Scalia passed away in 2016, his four orphaned clerks went to the two justices who were closest to him on the ideological spectrum. Thomas picked up Taylor Meehan and Jonathan Urick, while Alito took on Sopan Joshi and Michael Kenneally.

As for the four clerks Scalia had already hired for the subsequent term, October Term 2016, they also wound up with fellow Republican appointees: Nicole Frazer went to Alito, Nicholas Harper went to Justice Anthony Kennedy, Greg Miller went to Thomas, and Sean Mirski went to Alito. (As far as I know, Ginsburg had not hired any law clerks for October Term 2021, so only one class of RBG clerks has been displaced — but please correct me if I’m wrong.)

So I predict that Ginsburg’s law clerks for OT 2020 will wind up with fellow Democratic appointees to the Court. In other words, don’t expect to see them in the chambers of a Justice Amy Coney Barrett.

And I have more than just a prediction, but actual information: Jack Boeglin and Thad Eagles will work for Justice Sonia Sotomayor for the remainder of OT 2020. This makes sense, since Sotomayor was the closest to Ginsburg in ideological terms. Whenever there was a 7-2, conservative-liberal split, you could count on Ginsburg and Sotomayor to be the two liberals.

As for Eliza Lehner, David Louk, and Brittany Jones Record, my guess is that they will go to the chambers of Justices Stephen Breyer and Elena Kagan. Again, this makes far more sense than shipping them off to, say, Thomas or Alito. We know that Thomas isn’t a fan of dissenting voices in his own chambers; as he memorably quipped, “I won’t hire clerks who have profound disagreements with me. It’s like trying to train a pig. It wastes your time, and it aggravates the pig.”

In the meantime, if you have information about where Ginsburg’s clerks will spend the remainder of this Term, please drop me a line. I will update this post as I receive additional information from readers (and once I hear back from the Public Information Office of the Supreme Court, to which I’ve submitted an inquiry). Thanks!

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David Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@laterallink.com.

Back in July, a concert promoter had an idea: Why not let the beautiful people of the Hamptons blow off some steam while also raising some money for charity? Of course, this being the year of the plague, this couldn’t go off as it normally would: this would be a “drive-in music experience,” which guests would enjoy from the vicinity of their socially-distanced cars.

But the organizers couldn’t have planned for the unstoppable force of Goldman Sachs CEO David Solomon’s sick beats, helplessly drawing people away from their cars and into dangerously proximate reverie. Well, that or something more like this:

* A lawyer has been suspended from practice for five drunk driving arrests. This attorney needs to learn how to “pass” a bar… [Bloomberg Law]

* A pregnant Pennsylvania lawyer completed a hearing in a murder case last week after her water broke during the proceedings. [Today]

* A curfew in Miami, Florida has been eliminated thanks to a lawsuit filed by a local strip club. [Fox News]

* Los Angeles is facing a lawsuit over mamajuana delivery licenses. [Independent]

* Goodwin Procter has promoted a trans lawyer to equity partnership. [Bloomberg Law]

* A Rhode Island criminal trial may be decided by a semicolon in a statute. Still waiting for the Oxford comma to make an appearance in a criminal trial… [Providence Journal]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to Vault’s 2021 practice area ranking, which Biglaw firm is #1 in the white collar defense and internal investigations practice area?

Hint: This selective law firm only has one office, in Washington, D.C.

See the answer on the next page.

What makes for a good lawyer?

We’ve all spent years in law school and since pondering this simple question. Yet, there’s not one clear, widely agreed-upon answer.

There are a few accepted metrics. Billable hours, pedigree, and experience at big-name firms often come to mind. And for many attorney positions, technical skills are table stakes.

But as a hiring manager and former general counsel, I have interviewed, hired, and managed many professionals. And I can decisively confirm that technical skills, once established, are almost never a reason to make a final hiring decision. They’re not what makes a good lawyer good.

Instead, I — and I’ve found that many of my colleagues also — focus on a handful of “soft” skills, human qualities that don’t make an appearance on law school syllabi. After all, we aren’t lawyers in a vacuum, and no amount of technical skills can help an attorney who lacks these innate professional qualities.

The ones I often focus on are:

• Creativity and innovation
• Empathy
• Self-management
• Passion
• Self-development

I crowdsourced this question in the hopes of getting more-complete answers and more-rounded perspectives. I found a range of perspectives, but all, more or less, focusing on soft skills rather than technical expertise in the law.

Many of the answers I received highlighted the importance of just having good interpersonal social skills:

Lenor Marquis Segal, senior counsel – global litigation, at Hitachi ABB Power Grids, said, “Customer service! Client focus! Listening ears! Intuition. Ability to see forest and trees simultaneously. Attention to detail. Big picture view. Work ethic. Professional ethics! Sense of humor. The human soul.” She explained, “Lawyers are very personal! Think about past relationships with counsel and decide what qualities you are looking for personally for a functional and successful engagement.”

Talar Herculian Coursey, general counsel at Vista Ford Lincoln, similarly noted: “When I was recruiting in private practice, I looked for someone with good eye contact, personable and humble.”

Devora L. Lindeman, partner at Greenwald Doherty LLP, explained, “Communication skills, do they really listen, do I think they will interact well with clients, can they think on their feet, did they prepare enough for the interview that they know something about me and our firm, are they passionate about employment law. To name a few.”

Likewise, Neil Greenbaum, partner at Greenbaum Law Firm, explained, “Competence (which, to me, doesn’t mean experience, but ability to learn) and somebody with whom I would like to work and could develop a rapport with. Pedigree is irrelevant.”

Others look for candidates who come informed, having done their homework as a job applicant:

Annie Little, attorney career coach at JD Nation, said, “Although I don’t hire lawyers, I do help them get hired. One pattern I’ve observed is that employers are looking for “informed enthusiasm.” In other words, they want to feel that the candidate understands the company’s business, culture, and overall industry — and that the candidate is excited about and demonstrated their ability to help the company succeed.”

Others sought more fundamental professional skills, like strengths in critical thinking and the ability to stay cool under pressure:

Critical thinking: David Fryman, principal attorney at Fryman PC, shared, “Critical thinking is crucial for me. I find a lawyer that can wrap their head around complicated legal issues will usually be a good fit for my team. Most other skills can be taught.” He explained, “I find out the kind of cases they worked on and get them to talk about them in detail. I also use writing samples because if you can’t write well, you can’t think well.”

Comfortable when things get messy: Andy Dale, general counsel, and head of strategic partnerships at Alyce said, “I like to look for: being comfortable when things get messy or unclear, and curiosity about work and life.” Likewise, Colin Levy, legal counsel at Lookout, “Communication skills, collaborative temperament, fluent in the language of business.”

Though the responses seem to vary at first glance, the truth is, they generally do cover soft skills, qualities that define us as humans before they define us as lawyers. Or, as Christon Halkiotis, criminal defense attorney, explained: “Common sense, ability to problem solve, and good instincts. “You can learn the rest.”

We too often think of being as a lawyer as being completely separate from being a human being — that you can be a good lawyer but a terrible person, or a terrible lawyer but a good person. Both of those are definitely true (and I’m sure we all know both types), the truth is the things that make good lawyers are not all that different from what makes us good people, or good employees in other professions.

Even if you don’t do your homework, being a good person will get you far — in life, and in law.

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Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.

It’s hard to continue holding money back from people who were expecting it originally. Also, the environment for sought-after lawyers has never been more competitive than it is now. … It’s hard to hold on to your best people if you’re paying below market.

— Kent Zimmermann, a law firm management consultant at Zeughauser Group, commenting on the recent wave of law firms that have either rolled back their COVID-19 austerity measures or handed out bonuses to associates, mentioning that competition could play a role in why these things have occurred.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Let’s play along here for a minute and pretend that everything we’re hearing from the New York Post and Rudy Giuliani about Vice President Biden and his son Hunter is 100 percent truthful and not an obvious Russian interference op embraced by a demented grifter and his craven enablers. Just for the sake of argument.

Hunter Biden, a California resident, hopped a plane back to Delaware so he could get drunk and drop off a waterlogged laptop at a repair shop in Wilmington. After which he promptly forgot all about the device, which happened to be full of incriminating emails and videos. Sure, Jan.

Noting that the laptop had a sticker on it from the Beau Biden Foundation, the store owner, who is legally blind, decided he’d better investigate the contents of the hard drive. At which point he discovered incriminating emails from a Ukrainian businessman at the infamous Burisma natural gas company thanking Hunter Biden for setting up a meeting with his father, and also, perhaps videos of Hunter Biden having sex and smoking crack. You bet!

So “in fear for his life” the store owner contacted Rudy Giuliani, the cyber guru who accidentally posted a video of himself cracking racist jokes last week, and Steve Bannon, who was recently indicted for defrauding a charity. Then Rudy and his illustrious compadre Robert Costello, last seen trying to undermine Michael Cohen’s cooperation agreement using Garth Brooks lyrics, “authenticated” the hard drive — although they won’t say how and they won’t allow anyone else to examine it.

“Bob checked everything out, made sure that the document was authentic. He then … authenticated the hard drive with a number of different tests he performed,” Giuliani told Fox’s Mark Levin. “And then he got a copy of it from the gentleman. And then he began cataloging it. And then he brought it to my attention.” Just embrace the crazy.

The FBI has had this computer since 2019, and no arrests have occurred — or even revelations of impropriety by either the Vice President or his son, which would surely have helped Donald Trump’s case during the impeachment hearing. But upon closer examination, it appears that there is child pornography on “Hunter Biden’s” hard drive, conveniently reinforcing the lunatic Q-anon theory that Democrats are a cabal of satanic pedophiles. (Incidentally, planting illicit images on its enemies computers is a common Russian FSB tactic.)

On Fox Business this morning, Senator Ron Johnson warned darkly that the FBI agent who signed the supposed subpoena works on child pornography cases (or he did back in 2012), so the obvious inference is that the FBI is hot on Hunter Biden’s trail for kiddie porn. Maria Bartiromo furrowed her brow in credulous concern. Let’s all be like Maria Bartiromo!

Then Giuliani’s buddy Chanel Rion of One America News Network assured us that something filthy is about to drop.

While Trump ally Wayne Allyn Root tweeted that “My sources- as high up as it gets- watched videos on Hunter’s laptops TODAY. Just told me point blank…no rumor…they saw Hunter raping & torturing little Chinese children.” And if you can’t trust a wingnut talkshow host, who can ya trust!

Meanwhile, Fox itself passed on this story (oh, hey, that’s Bartiromo’s shop!) because it didn’t meet the standards of the network that relentlessly flogged the Seth Rich conspiracy. And the author of the piece at the New York Post refused to put his byline on it because of glaring credibility problems.

But anyway, let’s just accept all of this as gospel truth for the moment.

We just have one question.

What the hell was Rudy Giuliani doing with child pornography? Mere possession of sexually exploitative images of children is a crime, and the law imposes an affirmative obligation on anyone who comes across child pornography, even accidentally, to alert law enforcement immediately. And yet the former mayor and federal prosecutor claims to have had a copy of Biden’s hard drive in his possession for weeks now, long enough to shop the story to Fox and the NY Post.

“I sleep with it at night,” he told The Daily Beast.

So when was he going to get rid of this contraband? For that matter, when were Steve Bannon and Robert Costello going to get around to fulfilling their legal obligation to report this crime? Is the blind computer repairman going to be charged with distribution of child pornography because he made multiple copies of “Hunter Biden’s” hard drive and passed them on to third parties?

Let’s take a wild shot in the dark that no one reported coming into possession of child pornography because it did not exist. There was no kiddie porn, and probably no laptop.

There’s just a steaming pile of bullshit, and no one should swallow any of it.

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Elizabeth Dye lives in Baltimore where she writes about law and politics.

The Above the Law archives are — unfortunately — filled with stories of law professors using the full n-word, both in classrooms and less formal settings. The reactions to being called out for their use of the racial slur have varied from refusing to apologize to flouting their academic freedom to use the offensive term to claiming reverse discrimination and at least one professor had a change of heart about the practice, but this is something else entirely.

For what is at least the first time in Above the Law’s coverage of law schools, a professor has voluntarily resigned after using the n-word in class. As reported by the Pittsburgh Post-Gazette, an unnamed adjunct law professor at the University of Pittsburgh School of Law used the n-word during a class on offensive language on Tuesday, October 13th. Then the next day the professor apologized and announced he was resigning from his position. Law school officials sent around an email detailing the situation:

“Early Tuesday morning, we learned that an adjunct professor at the law school used an offensive racial epithet (specifically, the “n word”) in the course of an academic class discussion on a particular case involving offensive language,” the email stated. “The instructor apologized and expressed his deep regret to the class, and informed the class at 1 p.m. today that he was resigning immediately from teaching at Pitt Law.

“We condemn the use of this word, and we believe that saying this word and words like it, even in an academic context, is deeply hurtful,” the noted added.

Above the Law is generally, firmly, in the camp of identifying which professors think it is acceptable to use the n-word in class, so that future students can insulate themselves from the practice. But it seems, in this case, the professor has decided the best course of action is removing himself from the classroom entirely.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).