Patent Litigation Training: Law Schools’ Freedom to Operate

Michelle L. Gross and Eric W. Menkhus

©2013. Published in Landslide, Vol. 6, No. 2, November/December 2013, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

With U.S. law schools making a push toward providing practical training to law students to decrease employer training costs, thereby making practically skilled law students more attractive in the job market, why does such a gap exist in the amount of practical training for students seeking careers in patent litigation?

Many schools have recognized that intellectual property law is a field that offers relatively good job prospects for graduates, and provide at least a modest offering of general intellectual property courses. However, our colleague at the Sandra Day O’Connor College of Law at Arizona State University, Dean Douglas Sylvester, notes in a companion article, Patent Transactions: Novelty and Best Modes in Legal Innovation, that the majority of patent law courses offered are based on transactional practice. Yet the number of patent lawsuits filed continues to rise, which indicates ongoing strength in the job market for newly graduated patent litigators.1 Of law schools that offer enforcement-oriented training, most offer a two or three credit lecture-based course on patent litigation that covers the broader concepts of the practice, such as infringement analysis, claim construction, venue and expert witness selection, and possible defenses.

Considering the high stakes and costs of a typical patent case—the average cost of a patent litigation is $1.2 million through the end of discovery and $2.1 million through final disposition for cases in which $1 million to $10 million is at stake2—it is virtually impossible to provide students with a significant portion of the practical skills they need to know in a single, lecture-based course. Wouldn’t students with an interest in patent litigation be much more marketable to prospective employers if they were able to receive similar practical training as those pursuing careers in civil or criminal litigation via externship positions and clinical experiences to enhance their practical skills and reduce employer training costs? The obvious answer, in turn, raises the question of why there is such a lack in courses specifically directed toward building potential patent litigators’ skills prior to graduation.

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