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IP Legal Ethics in the Everyday Practice of Law: An Empirical Perspective on Patent Litigators

57 Pages Posted: 23 Jan 2011 Last revised: 3 Jan 2015

William T. Gallagher

Golden Gate University School of Law

Date Written: January 22, 2011

Abstract

This article presents preliminary findings from a qualitative empirical study of patent litigators. Part of a larger and ongoing project studying intellectual property lawyers in patent, trademark, and copyright enforcement and litigation actions, this article focuses on ethical decision-making by patent litigators in the pretrial discovery process. The article is based on data from in-depth, semi-structured interviews with fifty-five patent litigators and from a detailed case study of the infamous Qualcomm patent sanctions case. The article critically examines how patent litigators perceive of and respond to ethical issues that arise in the discovery process. It also analyzes the structural and cultural factors that influence ethical decision-making, as patent litigators navigate the multiple and often conflicting demands made throughout the discovery process by clients, firms, colleagues, and ethical rules. A significant finding from this study is that the threat of Qualcomm-like discovery sanctions is largely irrelevant to the everyday practice of patent litigators and has had little effect on their ethical decision-making. To-date there are few empirical studies of intellectual property lawyers or of legal ethics “in action.” This study begins to fill that gap.

Suggested Citation

Gallagher, William T., IP Legal Ethics in the Everyday Practice of Law: An Empirical Perspective on Patent Litigators (January 22, 2011). John Marshall Review of Intellectual Property Law, Vol. 10, p. 309, 2011. Available at SSRN: https://ssrn.com/abstract=1745540

William T. Gallagher (Contact Author)

Golden Gate University School of Law ( email )

536 Mission Street
San Francisco, CA 94105
United States
(415) 369-5339 (Phone)

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