The following is an excerpt from Practice Perspectives: Vault's Guide to Legal Practice Areas.
Abby Litow, Partner, and Kyle Calhoun, Associate—IP Litigation
Abby Litow is a partner in Kirkland’s Washington, DC, office. While much of her practice is focused on patent infringement litigation, she also has experience litigating cases and advising on other subject matters, including trade secrets, antitrust, pharmaceutical regulation, and breach of contract. She has represented clients in litigation and advisory matters involving a variety of technologies and products, including medical devices, pharmaceuticals, HVAC controls and accessories, semiconductors, consumer products, and mechanical designs. Before joining Kirkland, Abby earned her B.S. in Biology from the College of William & Mary and her J.D. from Harvard Law School, where she served on the masthead of the Harvard Journal of Law and Technology and was a National Winner of the Giles S. Rich Moot Court Competition.
Kyle Calhoun is an intellectual property litigation associate focusing on high-tech patent and trade secret litigation in U.S. federal courts and at the International Trade Commission. Kyle also has extensive experience in motion practice and fact discovery in matters not strictly limited to patents, including contract and licensing disputes, business torts, and claims based in unfair competition laws. Before joining Kirkland, Kyle attended law school at the University of Texas at Austin, where he was involved in a number of advocacy and intellectual property organizations, including the Board of Advocates and the Texas Intellectual Property Law Journal. Kyle received his B.S. in Mechanical Engineering from the University of Florida.
Describe your practice area and what it entails.
Kyle: Kirkland’s intellectual property litigation group handles a wide variety of technical litigation matters, including patent cases before federal district courts, the Patent Trial and Appeal Board, and the International Trade Commission, as well as a variety of trade secret, copyright, and trademark matters in district court. We handle cases through all facets of litigation, from filing or answering a complaint up through trial and appeal, with particular focus on taking those most difficult and complex cases to jury or bench trial.
What types of clients do you represent?
Abby: Working at Kirkland has given me a great opportunity to represent clients whose businesses involve a variety of technologies and products, including medical devices, pharmaceuticals, HVAC controls and accessories, semiconductors, consumer products, and mechanical designs. Many of my clients are Fortune 500 national or international corporations, but others are smaller innovative companies or startups that have retained Kirkland to represent them in a litigation matter where they are asserting or defending patent infringement claims with significant implications for their business.
Kyle: My work predominantly involves large companies with highly technical intellectual property, both on the plaintiff and defense sides of the bar, with particular focus on hardware and software technologies, computer networking systems, smartphones, solar panel devices, and image-processing systems. Specific clients include Cisco Systems, Motorola, Samsung, Solar City, and EagleView Technologies.
What types of cases/deals do you work on?
Abby: No matter what claims are at issue in a litigation matter for which Kirkland has been retained, my job is to manage all phases of the case, including conducting pre-filing analyses to assess potential claims on behalf of patent owners; constructing claims; performing fact and expert discovery; briefing and arguing dispositive motions; and trial and post-trial briefing. There are other parts of my practice that are not technically part of active litigation but are closely related—for example, advising clients who have received or are considering sending a cease-and-desist letter or negotiating and drafting settlement agreements to resolve litigation.
Kyle: I primarily work on high-tech, complex litigation matters that, in all likelihood, are destined for trial. This work involves both patent and trade secret litigation matters that have several patents or trade secrets at issue that span a large number of technical fields.
How did you choose this practice area?
Abby: I fell in love with biology in high school and college but never saw myself becoming a doctor or working in a research lab—I always wanted a job where I could write, think critically, and work as part of a team. Patent litigation allows me to combine my interest in science with my desire for an exciting, challenging, and team-oriented career.
Kyle: With a background in engineering, I knew I wanted to be involved in legal matters that implicated technical issues. I also knew that I wanted to challenge myself with the critical-thinking, persuasive, and competitive aspects implicit in high-stakes commercial litigation and leverage my experience in and passion for advocacy developed during law school. These considerations are what drew me to work in the intellectual property litigation space, and in particular, Kirkland’s Intellectual Property Litigation group.
What is a typical day like and/or what are some common tasks you perform?
Abby: One of my favorite things about my job is there is no such thing as a “typical day.” While some litigation deadlines are set and can be worked on weeks or months in advance, other deadlines come up at the last minute and require critical thinking and problem-solving that I find very exciting. The most common task I perform is communicating with people—with my clients, with my team members, with opposing counsel, with fact and expert witnesses, and with the court, I have to effectively communicate and think on my feet.
Kyle: On one side of my practice, I work on researching, drafting, and revising papers to be filed with the court, including briefs in support of motions to dismiss, motions for summary judgment, discovery motions, Daubert motions, and the like. This work primarily addresses complex legal and factual issues and requires keen focus on distilling complex, highly technical information down into a form that can be digested and understood—and is persuasive to the court. On the other side of my practice, I work on developing discovery during the course of litigation by reviewing documents and conducting interviews to understand highly technical technologies, preparing for and taking/defending depositions, and working with experts to better understand how all of the facts and technologies piece together.
What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?
Abby: At Kirkland, we are focused on developing patent litigators who have the skills to contribute to all phases of litigation, no matter what claims or technologies are at issue in the case. That’s why, even though I have a degree in biology, I have worked on cases involving semiconductors, thermostats, and motion-control software. The most important skills to be a successful IP litigator at Kirkland are not necessarily knowledge or understanding of a particular scientific area—though, of course, that can be helpful; they are learned skills like persuasive writing and clear oral communication. Taking courses in writing and trial advocacy or participating in mock trial or moot court are helpful to start developing the skills that Kirkland expects its litigators to have.
Kyle: I highly recommend any prospective intellectual property attorney to take as many litigation, advocacy-focused classes as possible, to get involved in groups such as mock trial and/or moot court, and to focus on developing their abilities as a legal writer. Attorneys in this field typically have the technical background that allows them to tackle the technical issues at play in a given case, but what sets those great intellectual property litigation attorneys apart from the rest is their proficiency to persuasively draft and argue their positions to the court or a jury.
What is unique about this practice area at your firm?
Abby: One thing that is unique about Kirkland’s Intellectual Property group is that we do not offer patent prosecution services to our clients. This is typically a benefit to junior lawyers who want to focus their practice on litigation instead of dividing time between litigation and prosecution. That being said, with the recent rise of post-grant proceedings at the PTO, there are ample opportunities for lawyers who want to engage in prosecution-like activities. For example, filing and responding to petitions for inter partes review is becoming an increasingly large part of our intellectual property practice.
Kyle: I think what sets Kirkland’s intellectual property litigation group apart is its focus on developing younger attorneys to take on roles and responsibilities that would typically be beyond their years. This focus includes a number of training programs keyed in on trial advocacy, deposition taking, and discovery development. Combined with Kirkland’s willingness to take its cases to trial, this allows junior attorneys to truly get hands-on experience in each aspect of litigation from start to finish.
What are some typical tasks that a junior lawyer would perform in this practice area?
Abby: One of Kirkland’s goals is to get junior lawyers significant litigation experience as early as possible, and my career has been a good example of Kirkland’s success in this regard. In my early years at Kirkland, I worked on junior-level tasks, such as legal research assignments and drafting discovery requests and responses, but I also defended multiple fact witness depositions and sat at counsel table during a jury trial within my first two years at the firm—experience most of my friends at other firms didn’t get. At Kirkland, an associate can be promoted to partner at the end of their sixth year at the firm, which provides earlier opportunities for junior lawyers to take on responsibilities, such as arguing motions in court or taking witnesses at trial.
What kinds of experience can summer associates gain in this practice area at your firm?
Abby: Kirkland’s summer program is the best! Summer associates at Kirkland get a great introduction to what it’s like to be an IP litigator at our firm. In addition to working on legal research and writing projects for patent infringement cases, summer associates experience invaluable hands-on opportunities, like sitting in on depositions, participating in meetings with clients and opposing counsel, and attending hearings and appellate arguments. Our summer associates also participate in an introductory version of Kirkland’s industry-leading trial advocacy training that we require for all associates (called KITA), which teaches the mechanics and art of courtroom presentations, including opening and closing statements and direct and cross examinations.
Kyle: The great part about the summer associate program here at Kirkland is that our summer associates are not simply given busy work but instead are tasked with working alongside both associates and partners to tackle real issues in real cases. Summer associates get the opportunity to prepare for a number of depositions and hearings and participate in aiding the team to prepare for trial. Getting to go to a jury trial as a summer associate was one of the most formative and exciting experiences during my time in law school.
What advice do you have for lawyers without technical or science backgrounds who want to practice in IP?
Kyle: My biggest piece of advice would be not to get too intimidated by the amount of technical and scientific issues inherent in this practice. These issues are just as challenging for most of us attorneys that do have technical backgrounds and require learning something entirely new from scratch. The technology at issue in the majority of my cases bear little relation to my background as an engineer, and I am challenged every day to wrap my head around complex technologies. What will set you apart is your willingness to take these technical challenges head on and leverage your skills as a legal researcher and writer to frame each of your client’s positions in a persuasive light. Some of the best intellectual property litigation attorneys that I know have little-to-no technical background.