By Jasper L. Tran, Cameron Baker, and Matt Johnson

As fewer cases go to trial nowadays, judges have long been mindful of providing young lawyers with “stand-up” opportunities.  For example, Judge William Alsup of the Northern District of California, in his Standing Order, “strongly encourages lead counsel to permit young lawyers to examine witnesses at trial and to have an important role.  It is the way one generation will teach the next to try cases and to maintain our district’s reputation for excellence in trial practice.”

On April 28, 2020, the USPTO announced that it will join this nationwide effort of training the next generation of lawyers as part of its commitment to promote innovation and diversify the patent bar.  Effective May 15, 2020, the USPTO launched the Legal Experience and Advancement Program (LEAP) to provide “new” patent practitioners with speaking opportunities before the PTAB.  To qualify, patent agents or attorneys must have seven years or fewer years of experience as licensed attorneys or agents and three or fewer substantive oral arguments in any federal tribunal, including PTAB.

Parties who allow young practitioners to argue on their behalf would also benefit by having up to 15 additional minutes for oral argument.  The LEAP practitioners may handle the entire argument, or simply a portion thereof, as long as they have “a meaningful and substantive opportunity to argue.”  More experienced counsel may even assist the LEAP practitioners while they argue, including being able to clarify statements for the record.  If this sounds enticing, the parties need to notify the PTAB at least five business days in advance of the hearing to participate:  for an appeal, email PTABHearings@uspto.gov; for an AIA proceeding, email Trials@uspto.gov.

To alleviate concerns and smooth the transition, the USPTO will provide training to the “new” practitioners before their first argument.  The training will focus on oral argument procedures before the PTAB and address the flow of a hearing, effective use of time and demonstratives, and other oral advocacy tips.  Ultimately, “having a patent bar with strong oral advocacy skills benefits clients, the USPTO, the courts, and the whole IP system.”

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Matt Johnson is one of the Firm's primary contacts on practice before the PTAB. Matt consults on nearly every one of Jones Day's over 290 PTAB cases to date. He currently serves as co-chair of Jones Day's PTAB practice.