SEP Litigation and Legal Trends in the US Patent System – Episode 6
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Guest:
- Christa Laser, Cleveland-Marshall College of Law
Professor Christa Laser comes to Cleveland-Marshall after nearly a decade of practice experience as an intellectual property litigator at the law firms WilmerHale and Kirkland & Ellis LLP. She has deep expertise in patents, trademarks, copyrights, false advertising, pharmaceutical litigation and regulation, and technology law. She has represented leading life sciences and technology companies in all stages of trial and appellate matters and consulted on legislative changes to intellectual property laws.
In her time during law practice, she gained a lot of experience representing clients such as Samsung or Lenovo in their defense strategy around standard essential patents (SEPs). SEPs play a particular role in litigation as in such litigation it is not only about questions such as validity or infringement but also about the obligation to disclose SEPs or the big question of what a FRAND rate is. Disputes in other spaces are very different. In bio tech for example the infringement is often not challenged as typically both parties agree on what the compound looks like and how it’s used. Standardized technology is in comparison much more complex and it is thus much more difficult to find evidence for infringement.
“One challenge with SEP litigation is that infringement is happening globally, while patent litigation is always local.”
And related to that we see a lot of SEP litigation where courts file so called anti suit injunctions. A court would issue such an injunction to prevent other courts from deciding the same issue at the same time. This is set to make sure that questions in litigation are decided by only one court. If we don’t do that, we would have chaos as two countries would decide on the same issues that are overlapping and then parties would need to figure out which decision e.g. on rates applies where? The real complexity starts when we have an anti-suit injunction from one country and another country does not agree and files an anti-anti-suit injunction to continue the litigation process. This kind of back and forth creates a lot of inefficiencies and should be avoided as Christa believes we must respect each other legal systems.
After years of legal practice at the major law firms Kikland & Ellis as well as Wilmehale Christa decided to change careers to become a law Professor with the focuses on intellectual property and innovation. She wanted a change in her career to more objectivity look at the legal space. During her law practice she always had to represent one side of the table finding arguments to help the client win. Now she can look at issues from the outside. She still uses her practical experience with teaching her students that get presented real cases where they must then develop a strategy to win the case. Her approach is called the Socratic method a form of cooperative argumentative dialogue, based on asking and answering questions to stimulate critical thinking and to draw out ideas and underlying presuppositions.
Finally, Christa talks about her personal career and the challenge to manage working late hours at a law firm while having two kids being the main responsible childcare parent. She experienced a lot of support from her colleagues and people that helped her along the way, but she still felt it was often very hard to manage. In general, yet women are still expected to give up their careers when having children and the situation is not equal compared to men. Christa can be seen as a role model for many women as she showed others that you can have a career while having children. However, the whole system is a long way from supporting strong women in their career path. We still see a majority of males higher management positions, we still see many more male inventors e.g. listed on patents compared to women and the list goes on where even in the venture capital investment space, women less often receive investments even though statics prove women to be the more successful founders. All that must change, and our society must find ways to make this change happen.