The foundational comic premise of walk-into-a-bar jokes is the underlying differences among the characters walking in. The three characters—in this case a chess player, a hockey player, and a patent litigator—may appear different. But what if the joke is flipped, and they are more alike than you think? What does a patent litigator have in common with a chess player and a hockey player?
Successful chess players are able to anticipate an opponent's strategy—not just for the next move, but perhaps for 10 to 20 moves in the future—and build their own strategy accordingly. How do the best chess players see the game before it happens? Preparation is indispensable.
An experienced chess player can draw on history to intuit how an opponent might react to certain lines of moves. In addition, if a good player knows who their opponent will be at a tournament, they might familiarize themselves with that player's tendencies. Studying games played by grand masters can also provide a player with novel strategies to employ in a range of situations during a game. Using good judgment during a match is obviously key to playing well, but often good judgment is simply an outcome of significant preparation.
In terms of strategy and difficulty, chess's mirror image in the sports world may be ice hockey. According to ESPN's Sports Skills Difficulty study, only boxing is harder than ice hockey. Hockey players need to be able to shoot a rubber puck with a crooked stick at a net that is guarded by a goalie. While balancing on two thin blades. On ice. While moving at speeds up to 25 miles per hour. While five opponents are trying to knock them off the puck or knock their teeth out.
Great ice hockey players need to be more than just skilled with the puck. They need physical and mental toughness. Games and, indeed, seasons, are long. It is not enough to be on your game for a single 45-second shift. Having a high mental compete level for the entire time on the ice is critical.
For successful patent litigators, like chess players, it all starts with preparation. Many Hatch-Waxman litigations will begin around the NCE-1 date, but successful preparation begins earlier. For example, review of the patent portfolio, many of which are listed in the Orange Book, may reveal issues that need to be addressed. They may be similar to issues seen in other pre-suit litigations. Knowing how to handle those issues allows patent lawyers to address them before the litigation begins. Without that preparation, the litigation may be more challenging than it needs to be.
Once the litigation begins, as if triggered by a puck drop, mental toughness is key for what can be a process lasting two to three years. There are often multiple defendants in Hatch-Waxman litigation, and there can be several patents at issue, turning each litigation into what seems like several.
To successfully navigate all these challenges, attorneys need to get the most out of everyone on their team. Having a lawyer skilled at trial advocacy is important, but training those on your team to play their best is the best strategy for a successful trial team. Lawyers who can perform any task are valuable. Lawyers who can tackle a range of tasks and train others to perform at a high level are great leaders. Move that knight to f3 and sharpen those skates. You'll be a better person for it, and your clients will reap the rewards.
