Virginia Law Students Get Rare Front-Row Seat to Federal Appellate Process


Randall R. Rader, chief judge of the U.S. Court of Appeals for the Federal Circuit, discusses the day's cases with University of Virginia law students.

September 12, 2011

University of Virginia law students in Professor Margo Bagley's patent law classes got a rare first-hand look Friday at how patent disputes are decided at the federal appellate level.

The students traveled to Washington, D.C., to observe oral arguments in four cases before a three-judge panel of the U.S. Court of Appeals for the Federal Circuit, which has nationwide jurisdiction over appeals in cases involving patent laws and those decided by the Court of International Trade and the Court of Federal Claims.

The head of the panel, Chief Judge Randall R. Rader, spoke with the students before and after the day's arguments, gave them insight into the federal appellate process and offered a few tips to remember when arguing a federal appeals case.

The impressive [lawyers] are the ones who answer our questions very specifically," said Rader, who formerly taught patent law at UVA. If they're really good, they weave their own arguments into their answers."

Less impressive, he told the students, are those lawyers who try to avoid answering the judges' questions.

"We're not going to ask them easy questions," he said. "We're going to ask them the one thing they do not want to discuss at all."

Every case has a weakness, he said. Addressing that weakness, he added, is what often separates good lawyers from great lawyers.

"You don't want to talk about the weakness; you want to talk about your strength," he said. "Yet all we're going to do is needle you about your weakness. The trick is figuring out how to deal with your weakness up front and then somehow weave back it into the strength of your case. People who are good at it are probably the best-paid people in the business. That's why they make thousands and thousands of dollars for a few minutes of standing in court."

On Friday, the students watched as the judges heard oral arguments in Minkin v. Gibbons PC, a case involving a patent covering extended-reach pliers with multiple pivot points.

The inventor, Herman Minkin, an airline mechanic who wanted to be able to reach deep into an engine without dismantling it first, hired the Gibbons law firm in 1996 to help him obtain a patent covering his invention. The U.S. Patent and Trademark Office rejected the patent application at least twice before ultimately awarding the patent in 1999 after the application was amended to be far narrower and specific.

In 2007, Minkin discovered that a major tool manufacturer, Danaher Tool Co., had created and was marketing its own version of extended-reach pliers that was similar but not identical to Minkin's invention. Danaher had managed to design its tool around the constraints of Minkin's patent.

Minkin sued Gibbons in a New Jersey court, alleging legal malpractice in obtaining a patent that failed to protect his invention. The case was moved to federal court because it dealt with questions of federal patent law.

Students listening to Judge Rader
Virginia Law students listen as Chief Judge Randall R. Rader and his clerks detail the day's cases.

One major question before Rader's panel was whether the federal court had jurisdiction to decide the matter. After the court adjourned, Rader asked the students which court they thought was the proper venue.

Federal court has jurisdiction, one student replied.

"You don't need state judges trying to interpret patent law," he said.

"But don't state judges have a real sensitivity to when lawyers have overstepped their bounds or understepped them?" Rader said.

"Sure," the student replied. "But that wasn't the question."

Rader laughed. "I bet the majority of district judges would prefer that we leave these cases in state courts," he said. "But you make a good argument."

Rader did not detail his views on the case, as the opinion will not be published for some time.

Bagley said the trip to Washington gave the students an invaluable opportunity to witness the nuances of the federal appeals process and to hear insight from a key judge dealing with patent law.

"Having a chance to hear the judge's perspective a little bit before and after, to me, is just invaluable. That's something you just don't get," she said. "This is something that I would have loved to be able to do as a student, so I'm glad to be able to arrange it for my students."

Students also had the chance to speak with Rader's clerks, who explained what is involved with clerking at the federal appellate level.

"I'd like more of my students to consider clerking at the federal appellate level," Bagley said.

Kathleen Vea, a second-year student, said she was struck by the differences between appellate-court hearings and lower-court proceedings.

"It was very interesting to see how it actually works and how the judges would interject when the attorneys are speaking to ask their questions and find out what they want to know," she said. "I got the impression that this is very different from trial court because this is more about what the judges want to know and what they want to hear in the short amount of time available."

Another key takeaway for Vea was that some of the attorneys appeared to be caught flatfooted under questioning from the judges.

"It was interesting to see how they sometimes didn't anticipate the judges' questions and how they handled that," she said. "Presentation is important. If you're talking in front of a judge, you don't want to have to say, 'Uh, I don't remember.'"

Patent Group
Virginia and George Washington law students with Professor Margo Bagley and Judge Rader, center.

Matt Harvey, a third-year student, also said the visit demonstrated the importance of lawyers thinking their argument through from every angle.

"There were a couple times up there when the attorneys said, 'Oh, I didn't expect this issue to come up, so I'm not prepared on that point,' he said. I could see how that would easily happen, but it seems like that would be good to avoid if possible."

Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.

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