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, semistructured 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.
10 J. Marshall Rev. Intell. Prop. L. 209 (2011)