PTAB Judge Encourages Junior Attys To Ask For Help In Args

By: Dani Kass

A Patent Trial and Appeal Board judge on Tuesday encouraged junior attorneys arguing before the board to ask their more senior colleagues for help when needed, saying it doesn’t harm their credibility but increases it.

Speaking at a virtual U.S. Patent and Trademark Office event celebrating one year of the agency’s Legal Experience and Advancement Program, or LEAP, which lets junior attorneys argue at the board with some guardrails, Lead Administrative Patent Judge Michelle Ankenbrand said attorneys shouldn’t hesitate to ask for help.

“It actually boosts credibility because it shows you’re not just going to shoot off an answer that you haven’t really thought through,” Judge Ankenbrand said.

Such moments aren’t a disruption during arguments, she said, comparing it to when senior attorneys consult with their co-counsel. Likewise, the board is okay with having senior counsel taking over if the junior attorney needs it, beyond looking up information for them.

“We understand that not everybody has every answer at their fingertips,” Judge Ankenbrand said.

The LEAP program allows attorneys who have up to seven years of experience and three substantive oral arguments to get 15 minutes of extra time to argue. At a recent Patent Public Advisory Committee meeting, the agency said so-called LEAPers have argued in 46 cases, two-thirds of which were America Invents Act trials, with the rest being ex parte appeals.

Tuesday’s event, moderated by Vice Chief Judge Janet Gongola, brought in the perspective of a top firm partner, a LEAP associate, a corporate client and a PTAB judge.

Finjan’s chief IP officer and PPAC chair Julie Mar-Spinola said knowing PTAB judges are genuinely okay with junior attorneys taking advantage of the LEAP program’s guardrails makes her more confident as a client to let less-experienced attorneys step up and argue cases.

Kathi Vidal, managing partner of Winston & Strawn LLP’s Silicon Valley office, said when it comes to giving junior attorneys a chance to argue at the PTAB, she’s looking for someone who is “rolling up their sleeves and playing a leading role” when the team is working on the merits of the case, and someone who can answer a question “succinctly and persuasively and directly” while supporting it with record evidence.

“Somebody who thinks like that and can communicate effectively I know is going to be extremely successful before the board,” Vidal said.

Judge Ankenbrand likewise said having someone able to point to record evidence is extremely important when arguing before her and other administrative patent judges.

“I’m not looking at the person to say, ‘OK, this person knows how to work a courtroom,'” she said. “I’m looking more for the person who knows what’s in the record and can answer the question. We’re not a jury.”

Sterne Kessler Goldstein & Fox PLLC associate Ian Soule said when he’s argued as part of the LEAP program, the most important things were to know the case from start to finish — “know the record cold” — and do moot courts, whether it be internally, with the client, or through the LEAP program.

When trying to persuade a client to let a more junior attorney take lead, Mar-Spinola said it’s key that they meet the client first. The Finjan counsel said she wants to know the attorneys’ skills and background, their experience level and training, and how they’ll be supported by lead counsel. But she also said knowing the arguing attorney is vital, no matter what their experience level is.

Vidal echoed that if she asks a client to let a junior lawyer step in, it’s “critical” that they’ve met the client.

“Anytime I’ve suggested a junior lawyer argue, it’s always been the case that the client knows the lawyer, the client has developed a relationship with the lawyer and actually has a vested interest in wanting to see that lawyer succeed,” she said.