Are You Experienced?: Examining the Need for Specialized Ethics Rules in Patent Litigation

Any attorney licensed to practice before a federal district court, regardless or his or her area of specialization, may file a patent infringement suit on behalf of a client in that court. The possibility exists, therefore, for an attorney having little or no intellectual property experience to represent clients in complex patent litigation matters. Due to this, infringement defendants and their counsel may find themselves on the receiving end of a dubious patent claim brought by attorneys lacking patent law experience. This article discusses whether the existing rules governing attorney conduct, such as professional responsibility, procedural, or statutory rules, are sufficient to address these concerns. Additionally, specialized rules proposed or promulgated for other legal specialties are examined, as well as the impact of inexperienced juries and judges in complex patent law issues and suggested remedies proffered by other commentators. This article concludes with the suggestion that the existing rules regarding attorney conduct, appropriately enforced, are sufficient to foster responsible representation and deter, or punish, abuses