The following is an excerpt from Practice Perspectives: Vault's Guide to Legal Practice Areas.
Betsy is an experienced trial lawyer who specializes in life sciences patent litigation, and she has substantial experience representing innovators against generic challenges in Hatch-Waxman litigation. She has achieved significant wins in district court and defended them on appeal. Betsy also counsels pharmaceutical and biotech companies to strategically strengthen their patent portfolios for litigation. Betsy has played significant roles in complex, multi-jurisdictional cases, as well as appeals through the Federal Circuit and U.S. Supreme Court. She has been repeatedly recognized for her high-impact life sciences litigation work. Betsy takes pride in mentoring the next generation of lawyers, and she is a regular presenter on life sciences litigation topics. During law school, Betsy was lead managing editor of the Minnesota Law Review.
Patrick is an associate in the intellectual property litigation practice group. He rejoined Cooley after serving as a patent law clerk for Judge Beth Labson Freeman in the U.S. District Court for the Northern District of California. Having co-designed a cryptocurrency and completed programming courses during law school, Patrick focuses his practice on cutting-edge technologies, such as augmented reality, artificial intelligence, autonomous vehicles, video games, semiconductor chips, and medical devices. Patrick has experience before the U.S. Court of Appeals for the Federal Circuit, the U.S. International Trade Commission, the Patent Trial and Appeal Board, and federal district courts.
Describe your practice area and what it entails.
Betsy: My practice focuses on life sciences patent litigation and other life-sciences-related IP disputes, including trade secret misappropriation and contract disputes.
Patrick: I am fortunate to have the opportunity to represent some of the most exciting and innovative technology companies from around the world. My work focuses primarily on software and hardware companies. I have litigated cases relating to virtual and augmented reality, lidar sensors, location-based gaming, electronic displays, inertial sensors, haptic feedback, smartphone chips, and video coding standards. I primarily focus on the technical merits of cases, including interfacing with experts, understanding and explaining source code, researching prior art, and generally figuring out how things do (and don’t) work.
What types of clients do you represent?
Betsy: I represent innovative pharmaceutical, biotech, and medical device companies, whether in enforcing their IP or defending against allegations of infringement. As an example, I am currently representing Moderna in a patent infringement case.
Patrick: I primarily represent large technology companies—particularly software and hardware companies defending against patent infringement claims. I also represent smaller emerging technology companies that are either facing some of their first lawsuits or bringing their own patent infringement suits as plaintiffs.
What types of cases/deals do you work on?
Betsy: I handle a lot of Hatch-Waxman litigations, which arise when generic pharmaceutical companies seek to market their versions of branded pharmaceuticals before the expiration of the patents that cover the branded products. I also represent clients in disputes against non-generic competitors.
Patrick: I have mainly worked on patent infringement suits in federal district court. I have also worked on administrative proceedings before the Patent Trial and Appeals Board, International Trade Commission Section 337 investigations, and appeals to the U.S. Court of Appeals for the Federal Circuit.
How did you choose this practice area?
Betsy: I was drawn to life sciences patent litigation after pursuing a chemistry degree and being exposed to the intersection of law and science in my undergraduate studies. Before going to law school, I worked at a pharmaceutical company for a few years, then decided, based on that experience, to pursue a law degree rather than a Ph.D. I’ve never regretted my decision and have enjoyed the tech-heavy aspects of my legal job.
Patrick: I wanted to work directly with the things that make tech companies unique—i.e., the intricate details of their technology. Accordingly, I wanted to practice in an area of the law that allowed me to work directly with source code and technical design—which patent litigation requires me to do daily.
What is a typical day like and/or what are some common tasks you perform?
Betsy: Every day is different, which is fun. I spend a lot of time thinking strategically about cases and analyzing the merits, including doing legal analysis, interviewing witnesses and experts, and reading the scientific literature. I work a lot on teams, and spend time managing case strategy and tasks, as well as reviewing and editing work product and providing feedback to team members. Another daily occurrence is communicating with clients about case progress and strategy, usually by email or video call.
Patrick: One of my favorite aspects of patent law is how wide-ranging and un-typical the tasks can be. In a single day, I can move from standard litigation tasks like writing a brief or taking depositions to highly technical work like parsing through source code or stripping wires so I can get a prior art system hooked up to electricity.
What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?
Betsy: Courses in patents and intellectual property, civil procedure, evidence, and trial practice are all very useful to take if you want to pursue a patent litigation career. One of the most important skills you can hone throughout your studies and early on in your career is persuasive writing. Pay attention to your legal writing instructor and invest the time in your writing assignments.
Patrick: I would recommend supplementing law school coursework with technical courses at the larger university. For example, I took programming and artificial intelligence courses while in law school that have proved valuable for my practice. I also recommend clerking for a federal district court judge in a patent-heavy district like the U.S. District Court for the Northern District of California or the District of Delaware. In my experience, nothing else has been quite as useful for developing strategic instincts than to be faced with the task of helping wade through the massive docket of a federal district court judge as a clerk.
What is unique about your practice area at your firm?
Betsy: Cooley has broad experience and deep knowledge in IP litigation, and there is no type of dispute we can’t or haven’t handled, from patent litigation to trade secret litigation. We know our clients’ businesses and keep their goals top of mind in our legal representation.
Patrick: Cooley’s IP litigation group has played a major role in shaping the patent litigation landscape for software and hardware companies. For example, Cooley partners such as Heidi Keefe and Dena Chen have pushed the area of patent eligibility forward with high-profile, watershed wins at the Federal Circuit. Further, Cooley’s IP litigation group is uniquely dedicated to developing the merits of patent litigation cases, with an almost academic level of focus on understanding and explaining technology to deliver great strategic outcomes for our clients.
What are some typical tasks that a junior lawyer would perform in this practice area?
Betsy: Preparing and responding to discovery; reviewing documents to develop a chronological factual timeline of key occurrences relevant to the case; working with witnesses to prepare for deposition; and drafting motions and briefs.
Patrick: Junior lawyers are given incredible opportunities for growth in Cooley’s IP litigation group. The strength of Cooley’s emerging companies practices on the corporate side of the firm means that the IP litigation group often gets unique opportunities to help out smaller companies facing their very first patent suits. These lower-budget cases are a fantastic opportunity for junior lawyers to get experience running all aspects of a case—from strategy to client interfacing to arguing in front of a judge.
How do you see this practice area evolving in the future?
Betsy: Life sciences continues to be a growing field, and patents are important assets for companies to stake a fence around their innovative technology. As the tech develops, the patents will issue, and IP will always be a key lever for companies to protect their market. As biologics medicines continue to be approved and the biosimilar industry develops, more litigation will ensue.
Patrick: The technology at issue in patent litigation tends to lag slightly behind technology trends, in part because of the time required to prosecute patents. So IP battles more likely to flare up in the near future relate to technology that is prominent or growing in prominence now—including artificial intelligence, electric and self-driving cars, and augmented and virtual reality.
What advice do you have for lawyers without technical or science backgrounds who want to practice in IP?
Betsy: You can do it! As long as you have a passion for what you are doing and are willing to learn, the doors are open. Knowledge of the law and its contours is the key to applying it to any given case. There will always be technical experts to help—and don’t forget, they will be the ones testifying, not the lawyers.
Patrick: As a lawyer without a formal technical or science background (I majored in German literature in college), my main advice is that there is absolutely a place for you in IP litigation if you are interested—no matter what your background is. Even folks who have extensive formal technical backgrounds end up having to do a lot of learning in this job, because no one has a broad enough background to have seen every area of technology that gets litigated. So the main things you need are the humility to be OK with constantly being reminded that there’s something you don’t understand, and the curiosity and drive to dig into a new area of technology and figure it out.