San Diego Patent Litigation
HOW TO SELECT THE RIGHT COUNSEL FOR YOUR PATENT CASE
It is difficult to know how to select the best patent litigation counsel if you have limited or no experience with patent litigation. Below are five criteria that you should consider in order to make an informed decision.:
We can all agree that experience is important. But what type of litigation experience should your counsel have for your patent case? Here are four types of experience that your counsel should be able to demonstrate:
- A. Your counsel should be patent trial counsel; not just a patent litigator. There is a significant difference. Patent trial lawyers are those who have experience before judges and juries conducting actual federal court trials in patent cases. Many attorneys who handle patent litigation have never tried a patent case. They know all the pretrial procedures, but their cases have all settled or an older attorney in their firm has tried the cases. It is like knowing the procedures for flying a jet, but never having actually flown one. If you are forced to take your case to trial, you do not want your case to be the first one your lawyer has flown.
- B. Your counsel should have appellate experience in patent cases. Patent attorneys who have never handled a patent appeal are far more likely to make critical mistakes in preserving issues for appeal. If a case goes all the way to trial, it has a higher likelihood of being appealed. You want to make sure your attorney knows how to preserve issues for appeal.
- C. Your counsel should have a science or engineering degree. Most attorneys have a B.A. degree in such majors as political science, English, or philosophy. They may understand the law, but that does not give them the background to understand the finer points of science and engineering above a superficial level. You want your counsel to have a meaningful understanding of both patent law and the technology involved in your case.
- D. Your counsel should be a Registered Patent Attorney. Many attorneys who handle patent cases are not Registered Patent Attorneys. Registered Patent Attorneys have science and engineering degrees and have been admitted to the Patent Bar in addition to their State Bar. Registered Patent Attorneys are the only attorneys who can practice before the Patent Office. They have a specialized understanding the procedures in the Patent Office and experience with those procedures. This is valuable background when interpreting patents issued by the Patent Office and evaluating the validity of patents.
2. COST EFFECTIVE:
Patent litigation is expensive, but that does not mean that your counsel should be paying for his or her vacation home with your case. If an attorney has experience in patent litigation, then they will have sought their attorney’s fees in some past case that they won. Did the judges in those past cases find their fees to be reasonable? That is one objective way to know if the attorney is charging too much.
Another way to assess if an attorney will be reasonable in his or her fees is to look for reviews that make mention of the reasonableness of the fees charged by the attorney. Such reviews will provide an additional insight into the cost effectiveness of the attorney.
Not all attorneys are responsive as they should be. You want to know what is going on in your case. It is your case. You should be a part of the decisions that are made in your case. Your attorney may know the law, but you are a major source of facts for your case. Your attorney needs to be enthusiastic about taking advantage of your knowledge of your products and your industry.
You should not be left waiting when you have a question or concern. Your attorney should be able to respond to your inquiries within 24 hours. And your attorney should be able to answer your questions in plain language that you can understand. Yes, patent law is complex, but if your counsel cannot explain the basis of your legal position to you in language that makes sense, then your counsel is not going to be able to explain your position to a jury in language they can understand.
On-line reviews are a good resource for this factor because many such reviews comment on the responsiveness of counsel.
4. TRUTHFULNESS THROUGH OBJECTIVITY:
It is important that you know the truth about your patent case. Both the good and the bad. Most attorneys will tell you what they believe to be true. You may be convinced that your attorney is an honest person. But the problem occurs when your attorney has become invested in a particular narrative of the case that you want to hear. As the case progresses, you both must be honest with each other if new facts emerge that damage the original strategy. Litigation is a dynamic event. You both need to be prepared to change your strategy, and possibly lower your expectations, as new facts emerge in your case.
For your attorneys to be honest with you, they must first be honest with themselves. So how do you know if an attorney is being honest with himself or herself? If your attorney cannot logically explain how new facts, especially new bad facts, fit into the agreed strategy, then the attorney may have lost their objectivity.
Do not allow your attorney to waive off new facts that concern you. How they will be dealt with must be explained. Without objective analysis of new facts, you may lose the opportunity to modify your strategy in time to still win the case. Or you may continue with a patent case at great cost when the new facts indicate that you should lower your expectations and settle the case. This is why a commitment to truthfulness through objectivity is a value you should seek in the counsel you select for your litigation.
5. POSTIVE REVIEWS:
Nowadays, it goes without saying that on-line reviews are a great source of information about the quality of products and services. Take advantage of this resource.