Legal Experience and Advancement Program conducts virtual mock arguments
Blog by Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director of the USPTO, and Scott Boalick, Chief Judge of the Patent Trial and Appeal Board
Practitioners in the Legal Experience and Advancement Program participate in a mock argument practicum on August 7, 2020.
In May 2020, the USPTO launched the Patent Trial and Appeal Board’s (PTAB) Legal Experience and Advancement Program (LEAP). LEAP was established to help develop the next generation of patent practitioners by creating opportunities to gain oral argument experience before the Board. To qualify for LEAP, a patent agent or attorney must have three or fewer substantive oral arguments in any federal tribunal, including the PTAB, and seven or fewer years of experience as a licensed attorney or agent. The USPTO recognizes that oral argument opportunities before tribunals are limited and that gaining courtroom experience is valuable for newer practitioners’ career development. Developing strong oral advocacy skills in such patent practitioners benefits clients, the USPTO, the courts, and the whole IP system.
A key component of LEAP is training, and the USPTO has initiated a variety of opportunities with sessions taught by PTAB judges. We have provided three types of training so far. The first is a one-hour classroom-style lecture where PTAB judges explain the basics of an oral hearing. In particular, judges orient participants to PTAB hearing rooms, discuss how to handle virtual hearings as well as in-person hearings where one or more judges appear remotely, and share best practices for navigating the flow of a hearing. Additionally, judges offer tips for managing argument time and demonstratives.
The second type of LEAP training is an interactive discussion focused on viewing and evaluating actual recorded court presentations. By assessing what works and does not work in an argument, judges aim to mentor practitioners into adopting effective techniques and avoiding ineffective ones. Also, practitioners can witness first-hand the ramifications on the case of making missteps during the argument.
The third type of LEAP training we have provided is a live mock argument practicum in front of a panel of three judges. Practitioners are grouped in pairs and must determine how to argue multiple issues in a mock inter partes review case. The mock argument is 30 minutes per side and simulates the oral argument in an actual case. After the argument, the panel gives individual feedback to each practitioner, pointing out the strengths and weaknesses of the presentation. The mock argument practicum is closed to the public to foster an open and honest coaching opportunity.
PTAB held the first LEAP mock argument practicum on August 7, and the second took place October 9. 40 practitioners from a variety of different law firms argued before a total of 30 administrative patent judges, including the Director, Chief Judge, and executive management team of the Board. The arguments were conducted virtually, and all judge panels were extremely active in probing the issues. The practitioners did an excellent job in making their cases and handling judge questions. In fact, Deputy Chief Judge Jackie Bonilla commented, “If I did not know it, I would have thought I was sitting in an actual hearing as the practitioners were steeped in the mock record and well versed in the case law.”
And in the “real world,” the Board has heard 18 arguments by LEAP practitioners in actual pending cases, 30 percent in appeals, and the rest in AIA trials. Feedback from judges who heard cases with LEAP practitioners has been positive and encouraging.
One judge shared, “It is good to hear from newer attorneys because they are usually more intimately involved in the prosecution of an application. They know what the specification says and can answer detailed questions about claim construction issues.”
Another judge offered words of reassurance to future LEAP practitioners: “No matter how intimidating it is to stand up and argue before judges, the more you do it, the more comfortable you will be. The ability to stand up and argue is paramount to progressing your career.”
The USPTO created LEAP not only to advance the careers of less experienced practitioners, but also to further the USPTO’s goal to ensure America’s continued economic strength and technological leadership. A well-trained, inclusive patent bar is a critical element of this effort.