The United States Patent and Trademark Office (USPTO), in collaboration with the Patent Trial and Appeal Board (PTAB), launched a new moot court competition for law students this past academic year and I was lucky enough to be selected to participate.  The Competition offered participants a unique chance to sharpen their written and oral advocacy skills through a simulated trial proceeding under the America Invents Act (AIA). This competition simulated a validity challenge before the PTAB in an Inter Partes Review (IPR). IPRs typically are used as a defense to co-pending litigation where the challenged patent has been asserted, as was the case in our scenario. 

Throughout the year, the Competition required teams to take turns challenging the subject patent as petitioner and defending it as the patent owner (through a petition and patent owner response, respectively). In addition to a written brief, I also had the opportunity to argue one of our pleadings in an oral hearing at the end of the competition. Receiving feedback from the Administrative Judges was invaluable. 

The scenario had a fixed record with minimal expert testimony, which challenged the teams to extract the most out of the references for their arguments. PTAB proceedings are very focused on the facts and typically don’t allow attorney arguments that are unsupported by the intrinsic record. Given our very terse expert testimony, this required us to dive deep into precedential PTAB caselaw to fortify our arguments. Additionally, the competition had us tackle multiple issues – as petitioner we had to (i) prove that our asserted references were prior art by disputing the priority date of the challenged patent and also (ii) defend our expert’s standing as a person of ordinary skill in the art. If we failed at either of these, our IPR challenge failed with it. 

Each team was provided a practicing PTAB judge as a coach for the competition, and I found that this was the most valuable part of the experience. Our coach not only provided feedback that allowed us to sharpen our arguments but also shared with us the precedential Federal Circuit and PTAB law that they use when deciding similar issues in actual cases. This feedback deepened my understanding of relevant PTAB caselaw – something that I hope to immediately apply in practice. 

If the USPTO decides to continue the Moot Court competition in subsequent years, I would highly recommend it to anyone interested in patent law or litigation, either before Federal Courts or the USPTO itself. Given recent personnel reductions at the USPTO, the competition may not be held in the next coming years, but the organizers were clear in their commitment to “building the bench” of post-grant practitioners in the future to come.