The Patent Trial and Appeal Board LEAPs Into the Future

Next Generation Lawyers is thrilled to highlight an incredible new opportunity for young lawyers to gain valuable courtroom experience. On Tuesday, April 28, 2020, the Patent Trial and Appeal Board (PTAB) of the United States Patent and Trademark Office (USPTO) launched the Legal Experience and Advancement Program (LEAP) to foster development and experiences for more junior attorneys. LEAP will be integral to developing the next generation of patent practitioners by giving newer attorneys the opportunities to gain oral advocacy and courtroom skills.

LEAP Practitioners are defined as someone who is new to the practice of law or new to practice before the PTAB. To qualify, a patent agent or attorney must have three (3) or fewer substantive oral arguments in any federal tribunal, including PTAB, and seven (7) or fewer years of experience as a licensed attorney or agent. 

PTAB has provided extra incentives for appellants and parties to support LEAP and offer legal experience to a broader group of practitioners. In exchange for giving LEAP practitioners the opportunity to present argument as part of the program, PTAB will grant the party additional argument time (typically up to 15 minutes depending on the proceeding and PTAB’s hearing schedule). PTAB also strongly encourages LEAP practitioners to be active in all aspects of PTAB proceedings, including conference calls, pre-hearing conferences, and depositions.

In addition, PTAB has taken extra steps to ensure that clients’ interests are well-served by LEAP. First, LEAP practitioners may share time during the oral argument with other counsel (provided that the LEAP practitioner get a meaningful and substantive opportunity to argue). This will enable a LEAP practitioner to take part in a more complex oral argument than they might otherwise be able to take on given their experience level. Second, more experienced counsel may assist a LEAP practitioner, if necessary, during oral argument and can clarify any statements on the record. Finally, and perhaps most importantly, the USPTO will provide free training to familiarize LEAP practitioners with oral argument procedures before PTAB. The training will cover oral advocacy tips, effective use of time in oral arguments, and how to best use demonstratives during a PTAB hearing, among other topics.

LEAP will become effective on May 15, 2020 and petitioners can file requests to participate in the LEAP beginning on that day. For an appeal, an appellant should send an email to [email protected] at least five (5) business days before the hearing. Similarly, for an AIA proceeding, a party should send an email to [email protected] at least five (5) business days before the hearing. 

Kathi Vidal, Managing Partner of Winston & Strawn’s Silicon Valley Office and founder of the ChIPs Next Gen Effort, had this to say about LEAP. “PTAB’s program strikes a great balance. It incentivizes and encourages parties to allow more junior or less experienced attorneys to argue, while ensuring that if other counsel have value to add or would like to supplement the record, they may do so.  There is little risk and much upside.  This program will go a long way toward moving the needle toward empowering and training our next generation of lawyers.  Any time we rise the tide for junior lawyers, we necessarily rise the tide for all and thus promote diversity.”

All in all, Next Generation Lawyers applauds PTAB for developing this innovative program and giving more junior attorneys valuable courtroom experience. The junior patent lawyers among us can’t wait to sign up for LEAP. We are confident that the program will be a huge success and hope that many junior attorneys are able to take advantage of this newly-created opportunity.

Below are links to additional information on LEAP by the USPTO and an excellent blog on the topic 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 of the USPTO.

Written by: Rachel Busch, Winston & Strawn LLP, April 28, 2020