3 Questions For A Delaware Litigator And Court Commentator (Part I)

Andrew Russell's coverage of the fast-changing developments in a popular patent jurisdiction have been both enlightening and indispensable.

intellectual property law

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In my naivete as a young IP litigation associate, I assumed that because I was working in the New York City office of a large law firm, my practice would focus on representing the firm’s clients in the Eastern and Southern Districts of New York. I was wrong — and found that out very quickly when it became clear to me that none of the cases I was being assigned to were filed in New York at all.  Instead, I found myself staffed on a pharma case that ended up going to trial in Delaware, as well as a host of cases in other technology areas that had me traveling to the four corners of the continental United States. Eventually, as the middle part of my associate career overlapped with the boom in Eastern District of Texas patent filings, my caseload started to take on a heavier EDTX orientation as well. During those years, I was a diligent reader of Michael C. Smith’s EDTX blog (now at  https://edtexweblog.com/) — an invaluable resource for a Yankee patent litigator who needed to keep abreast of developments in a jurisdiction that none of our clients at the time wanted anything to do with. While patent defendant antipathy to being sued in Texas remains at the same level even today, so too does the value of a solid single-jurisdiction IP litigation-focused blog remain evergreen.

The value of such a blog is heightened whenever there are fast-changing developments in a popular patent jurisdiction that could have outsized impact on the fortunes of litigants going forward. On that front, one of the most important such developments was covered on these pages this past April, namely the issuance in Delaware by Chief Judge Connolly of a standing order requiring robust disclosure of those with “direct or indirect interest” with respect to ownership of a litigant. The contours of that standing order are now being litigated in a series of dramatic hearings being held by Connolly, involving entities putatively associated with the single-most-prolific patent litigation filer, IP Edge. The situation is a fast-moving one, with this past week seeing an extraordinary petition for mandamus to the Federal Circuit by one of the IP Edge-associated plaintiffs, asking for the Federal Circuit to effectively shut down Connolly’s proceedings midstream. In the latest twist, the Federal Circuit has effectively granted a stay of at least one of Connolly’s orders. For patent litigators, this is as juicy a situation to watch unfold as it gets.

Leading the charge in terms of covering the ongoing hearings is Andrew Russell, a litigator at the high-end Delaware-based IP litigation firm Shaw Keller, as well as the founder of the IP/DE blog, one of the handful of blogs focused on IP litigation in the ever-busy district of Delaware. For those with an interest in the ongoing Connolly hearings, Andrew’s coverage has been both enlightening and indispensable. Which is not a surprise, considering his experience as law clerk for a Delaware magistrate judge, as well as his current practice at a busy IP litigation firm based in Delaware. As is my wont, I reached out to Andrew to see if he would be interested in sharing some thoughts on what it is like to run an IP-litigation blog focused on a particular jurisdiction. He graciously agreed and as you will see over this week and next, has great insights for this audience.

Now to the interview. As usual, I have added some brief commentary to Andrew’s answer below but have otherwise presented his answer to my first question as he provided it.

Gaston Kroub: How has your blogging about patent developments in Delaware helped you as a practicing lawyer?

Andrew Russell: I certainly feel like I’ve learned to write more clearly and quickly. My co-bloggers Nate Hoeschen, Emily DiBenedetto and I try to have at least one blog post per day, and sometimes two or three. Each post takes an average of around two to three hours to write, if you factor in the time spent reviewing opinions and orders to find something to talk about, plus time spent looking at the docket to figure out what is really going on.

Even split among multiple people, that adds up to a fair bit of time — around eight to 10 hours per week for me. And it spirals out of control quickly if you don’t keep a grip on it. There might be three or four interesting things to post about in a day, and at times I feel like “blog writer” could be a full-time job on top of the time I spend actually helping clients.  To keep the blog going, I’ve had to get better at writing quickly. It’s great practice, and I’ve noticed that I have an easier time writing other things too.

I also feel like I have a better grip on what is going on in the court since I started blogging. Before, I used to try to read or at least skim all of the relevant opinions from our little district. But to blog about them, you have to not only read them, but also decide whether you can post about them, whether they are worth posting about, and then come up with a blog entry that (ideally) describes what is interesting or important about them and puts them in a broader context. It’s a lot.

Monitoring what’s happening at that level really leads to a deeper understanding of what’s going on, what the judges are thinking, and what the trends are. All of that is very helpful to my practice and benefits clients directly. People also send me things to post about from time to time, some of which are obscure but also important and useful in practice. I often end up citing things in meet-and-confers, e-mails, or briefs that I only know about because of the blogging.

GK: As someone who knows how much work goes into preparing this weekly column, I have a lot of respect for the commitment Andrew and his co-bloggers have to making the IP/DE blog a useful and timely resource for others. At the same time, I can vouch for Andrew’s opinions on the benefits of blogging as a practicing lawyer, from getting quicker and more direct as a writer, to thinking more deeply and broadly about legal developments arising in one’s practice, to just being more informed on relevant issues in a way that can positively impact on one’s work for clients. In short, the time investment may be substantial as a legal blogger, but that investment garners a healthy return in terms of becoming a more thoughtful and skilled practitioner. And I am sure that sharing the load with fellow attorneys only ups the fun quotient of the endeavor, while also helping build camaraderie within their firm. It all adds up to time well spent, as well as a worthy contribution to fellow lawyers practicing patent litigation in Delaware.

Next week, we will hear from Andrew about why blogging as a practicing lawyer is not without challenges, as well as why he feels that blogs remain an important resource for IP lawyers.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.


Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.