Can someone explain to me how patent litigators with no scientific education are effective at their job?
First-first, sorry for the typos/stream of consciousness. This is a topic that comes up often in this sub, but in a different way. Young students without scientific backgrounds are often asking how to get into patent law and being told they can not do prosecution and to try litigation because it doesn’t require scientific understanding. My post is from the perspective of someone in prosecution that is mid career. Thus, I’m not looking for career guidance but looking to understand more about how litigation in highly technical fields works.
First, let me preface this: I am not trying to offend anyone. Senior patent litigators in big law or mid/small firms have proven themselves and have the wins and career history to back it up. They’ve saved tens of billions for their clients. They have worked extremely hard to get to where they are in a challenging profession. They are machines. They can learn complex subject matter quickly. I admire their abilities. Nobody doubts they are effective.
I am not questioning their ability to do their jobs; they obviously do them well. I am confused about how they do them so effectively (sans any scientific understanding).
My attempts to rationalize it go like this. I notice that the litigators without scientific credentials are all older. 60+. Patent litigators that are new (30-45 years of age) in big law all seem to have PhDs (or maybe MS) in their scientific discipline (this is life sciences). Are the senior litigators leaning on the scientific strength of their younger associates?
Is this correlation between younger age and increased scientific credentials simply because the bar has been raised since there is so much more competition for jobs now than there was 40 years ago? If you have people without scientific backgrounds doing this successfully at the highest level (the senior folks), why are all the new people required to have PhDs rather than simply be the best litigators/lawyers?
Some of the pharma lit I see deals with complex chemistry. Of course much of it deals with semantic, non-technical issues as well, but those aren’t the ones that I’m worried about. The depos involve complex answers coming from expert witnesses that are elite scientific researchers. They are being deposed by someone with a humanities/art degree and zero scientific background. How do they even depose someone like this effectively? How do they capitalize on something the witness says if they do not understand the subject matter and are following a script prepared by their PhD-having colleagues and their own hired experts on their side? Is that what is going on when the non-scientific lawyers depose an expert witness scientist (the script following)?
Granted, these older lead litigators have young associates on their teams that all have PhDs. They have their own expert witnesses helping them formulate their own stategies. I'm wondering if its really them doing the technical aspects of the work. Do these senior litigators operate so effectively by cataloguing all of the possible topics that could come up during a depo and having this information in the hopper ready to use it if needed? If so, that is very impressive to have such command of so much material at the ready. Seems far easier to just understand the material technically and respond to a witness using that approach (combine with the pre-prep of course).
Like I've sat in on meetings and hearings with some of these litigators that have non technical backgrounds and you can't have a conversation with them about "what ifs." You can certainly try to but it never seems to go that deep into such issues. They seem to have a script they stick to.
I know part of being a good patent lawyer is having the ability to learn new things quickly, on the job, but learning chemistry or molecular bio takes a solid 4-5 years of study to even reach the undergrad level which isn't enough imo.
Again, no shade, I'm just confused about how it works. Do you think that 20-40 years from now patent litigators in highly technical fields (pharma let's say) will all have PhDs (or Msc)? Do you think the fact that there are elite patent litigators for pharma with no scientific education will be a relic of the past eventually, or is it simply not needed and we will contiue to see patent litigators without scientific credentials litigating pharma patents? Is it their skill at lawyering (digesting large amounts of complex material and having it mentally filed at-the-ready combined with knowing how and when to utilize it) that will dominate and ensure that they have a place for decades to come in this field?