The following is an excerpt from Practice Perspectives: Vault's Guide to Legal Practice Areas.
Laura Moran and Allen Wang, Partners—Litigation
Laura Moran represents clients, primarily in the pharmaceutical and life sciences industries, in patent disputes. She has experience representing clients in complex litigation, including Hatch-Waxman litigation, inter partes review proceedings and arbitration involving patent rights. Laura has also provided support to transactional matters, including by conducting intellectual property portfolio analysis.
Laura maintains an active pro bono practice and has represented victims of domestic violence in both family and matrimonial cases.
Prior to joining Fenwick, Laura was an associate in the IP group of a leading international law firm.
Allen Wang advises on litigation matters, with an emphasis on patent litigation, for clients in the technology and life sciences industries. Allen has significant experience litigating complex intellectual property disputes, including representing clients in proceedings before the U.S. Patent and Trademark Office.
Prior to joining Fenwick, Allen was an associate at a prominent international law firm, where he represented clients in a range of IP litigation and counseling matters. Before becoming an attorney, Allen was a software developer, first with Oracle, and later with Compiere, an open-source enterprise resource planning (ERP) and customer relationship management (CRM) platform provider.
During law school, Allen was an extern to the Honorable Lucy H. Koh of the U.S. District Court for the Northern District of California.
Describe your practice area and what it entails.
Laura: I’m a patent litigator in the life sciences space, which at a high level means that I handle disputes over patent infringement and validity in the federal courts. I also practice before the Patent Trial and Appeal Board and counsel clients on patent matters and patent-related matters outside the context of a litigation.
Allen: I am an attorney in the patent litigation space and focus on representing technology companies. Cases for these kinds of companies have the potential of involving patents spanning a wide range of technologies. Additionally, technology companies hold many patents and face a substantial volume of patents in the cases asserted against them. Thus, work on their matters tends to require the team to have a large breadth of technical expertise so we can best adapt to address this variety of patents in different technical fields.
What types of clients do you represent?
Laura: I work with life sciences companies at various sizes and stages of their growth, up to and including leading global pharmaceutical companies that turn to us to litigate their blockbuster drugs. At Fenwick, our clients are innovators and often pioneers in their fields, whether on the tech or life sciences side.
Allen: My clients touch many areas of technology—advertising, location-based technology, smart devices, e-commerce, artificial intelligence, and cloud computing, among others. In these areas they make and develop hardware and software, both consumer facing and business facing. As Laura noted, Fenwick’s clients are innovators and pioneers; working with them keeps us on the forefront of technology.
What types of cases/deals do you work on?
Laura: Working with innovators in the pharma space means that I am often plaintiff-side in a litigation, asserting patents against infringing parties to protect our clients’ proprietary technology. A large part of my practice entails Hatch-Waxman litigation, which is litigation between branded and generic pharmaceutical companies that arises when a patent challenger wishes to market its generic version of our client’s drug after marketing exclusivity on the product has run, but prior to expiration of our client’s patents.
Allen: I work primarily on high-tech patent litigation. These cases involve digging deep into how our client’s products work. This involves reading and researching very modern, advanced tech and meeting the people who invented it and who are at the forefront of their fields. On the flipside, it also involves looking into historical precursors in the relevant fields and working with other people knowledgeable about early developments. Ultimately, the nature of our practice requires that we take all this information and then distill it into something more accessible.
How did you choose this practice area?
Laura: As a student, I always had an interest in science, which led me to pursue a biology major in college. Given this background, I knew that I would be interested in exploring life sciences patent litigation. I was fortunate to try it as a summer associate, and it was a great fit. I continue to be fascinated by the different technologies, drug products, and disease states we dig into with each new case, which certainly keeps it interesting.
Allen: Originally, my plan was to be a software developer. After going to school to study computer science, receiving undergraduate and masters degrees, and working in the industry for a number of years as a programmer, I finally realized I was tired of being pigeonholed into one very specific area of technology. Now, as a patent litigator, I get to work with technology that is farther reaching and more interesting.
What is a typical day like and/or what are some common tasks you perform?
Laura: I wouldn’t say that there is a “typical day.” For any particular case, it largely depends on the stage of the case. Early case assessment, fact discovery, expert discovery, pre-trial, and trial each come with their own unique facets that shape the activities you find yourself engaged in on any given day. Another way to look at the “typical day” is really whatever is most urgent and important for your client that day.
Allen: The only thing that’s typical is starting the day with a plan of what you’re going to do that day and before you even get to the first item, having to change your list. Like Laura said, it depends on the stage of the case, and what’s urgent for the client. And some counseling tasks may arise outside of direct work on our pending matters. Those kinds of requests are at the same time less predictable and often more urgent. For example, clients have sought our input on matters in foreign jurisdictions simply because we had substantial knowledge relevant to the technologies at issue.
What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?
Laura: I always recommend that law students take classes in deposition skills, trial advocacy, and evidence. And specific to my practice area, I recommend taking whatever patent-specific or even IP survey courses your law school offers.
Allen: Agreed, I would say Depositions is one of the most practical courses I took in law school; I still use what I learned to this day. I would especially recommend taking courses taught by practitioners. Look for litigation and patent litigation classes taught by people at law firms since they can get into the details of recent, relevant cases, and if you do well in that class, you get two for one—a good grade and a professional connection with a practitioner who is in your field of interest.
What is the most challenging aspect of practicing in this area?
Laura: It can be challenging at times to feel comfortable with the substantive technical subject matter at issue in the case. This is compounded at the more junior ranks when you’re also still developing basic practice management and litigation skills—clear, concise, and persuasive writing, oral communication skills, and juggling competing demands for your time, for example.
Allen: I agree with Laura on these points. Additionally, it’s quite a challenge to dive into these new technologies that are still emerging. I still have to study when I take on a new case. I may buy a textbook, find experts to talk to, or do other research. My background in computer science gives me a generalist understanding, which serves as a toolbox that lets me get up to speed more quickly, but it’s still critical to go through the exercise of learning something new.
What do you like best about your practice area?
Laura: I enjoy collaborating with and getting to know the inventors of the patents we’re litigating and the top-notch expert witnesses who help us present the strongest case for our clients. They’re such impressive and interesting people. I also enjoy the challenge of distilling complex concepts into persuasive and digestible arguments, which is rewarding when you’ve done a good job of it.
Allen: In addition to the technology itself and the learning opportunities, I also enjoy getting to meet luminaries in the field. These include industry leaders who have gone into consulting roles, professors who are well published and understand the field, and the engineers, scientists, and other key employees of our clients.
What misconceptions exist about your practice area?
Laura: There’s often a misconception that the life sciences practice areas are not an option for those without a relevant technical degree. But that’s not true. I certainly work with associates and partners without technical degrees, and they bring their own skills to the table that are crucial to our success. It’s just as important to have attorneys with strong legal writing, oral advocacy, and deposition skills on your team, all of which are necessary to effectively advocate for our clients. Where there are gaps in our technical knowledge, we’re fortunate to work with such great expert witnesses who serve as a valuable resource in this regard.
How do you see this practice area evolving in the future?
Allen: Looking retrospectively, there have been various changes in the law that affect patent assertions. For example, the Supreme Court within the last decade issued an opinion that changed the landscape of patent eligibility in relation to abstract ideas. That sparked different patent litigation strategies affecting assertion and defense. We’re always keeping an eye on cases that are foundational to the key arguments that we make and watching as they move up through the appeals process. We may not be able to predict exactly what will happen next, but we can try to formulate a practical explanation of why the Supreme Court or Federal Circuit will go a certain way and prepare to pivot as those changes happen.
What advice do you have for lawyers without technical or science backgrounds who want to practice in IP?
Allen: The people who succeed in this practice are good learners, but also good educators. People with the technical background may have some helpful baseline knowledge, but it’s also important to phrase things and communicate ideas in court in a natural way. People who can take the subject material and dial it back in complexity or tweak phrasing to help it make sense to any person from any background are the ones who have the potential to go far.
Laura: Hone those skills that will make you a well-rounded lawyer. Even without a technical or science background, a successful attorney needs to be good in a deposition setting, quick on their feet, and able to express themselves effectively in writing. It’s often these people who are best at making the technical information digestible.