Khurram Naik: Lewis, I'm really happy to have you here. I think in many ways this episode is, let's say about 13 years in the making. If I knew it was going to have a podcast 13 years ago, this is one of the ones I thought I was going to do. So I decided to have you on.

Louis Tompros: I really appreciate being here. Thanks so much.

Khurram Naik: So ⁓ how I met you 13 years ago was I was part of an advocacy challenge for an end of court in Chicago, the Lin-In, as a 3L. And Judge Lin was part of a panel of en banc, part of an en banc panel and where we as advocates argued an issue and then ⁓ we all retreated to celebrate afterwards and talk about it. And so.

Louis Tompros: you

Khurram Naik: ⁓ Judge Lynn had asked me about my career plans and told me, I'm looking to be a patent litigator at a large law firm. I'm not working my way into that. And he said, well, this sort of entrepreneurial approach you're taking has reminded me of one of my former clerks, Louis Tompros, and some of the things that he did. And so one thing in particular that he did was... ⁓ He ended up arguing a matter for the Federal Circuit and the Federal Circuit prevailed and the Federal Circuit issued a presidential opinion. But how he did that was through this very entrepreneurial route. And so I wonder if you could talk a little about ⁓ Enrique Klein.

Louis Tompros: Sure. So this was before I was a partner. was a ⁓ counsel here at WilmerHale and very interested in Federal Circuit cases. I'd gotten a chance to do a lot of Federal Circuit briefing and second chair some of those. And I'd obviously clerked there. And I started ⁓ following the Federal Circuit docket. At the time, you could sort of see case filings as they hit using various tools. And I was just kind of mostly curious to to see what was going on. And then it occurred to me that there were a number of cases that were getting filed, pro se, by inventors or by ⁓ small ⁓ companies where there was essentially a single person ⁓ that could bring the case. And the Federal Circuit has a policy that every case where there's representation, where there's a lawyer, automatically gets oral argument. And I thought, you know, I wonder if any of these have issues that are interesting enough where I could get an oral argument out of going in to represent just on a pro bono basis, one of these inventors or individuals. And I just kind of kept track of it. And it probably took, I don't know, four or five, maybe six months of just reading the opening briefs that folks would file in these cases, pro se, until I found this one ⁓ by this guy, Arthur Klein, who Arnold Klein, who was a ⁓ an individual inventor, had this hummingbird related ⁓ business. He basically out of his backyard was making these hummingbird nectar mixers and he had been denied his patent on this. He worked with an attorney to try to get a patent on essentially the design of this particular nectar mixer with this dividable structure. And it had been rejected in part because of some old inventions on not nectar mixers or not containers for liquids, but on old card catalog dividers. And this was pretty soon after the federal circuit had decided ⁓ the cases that followed the Supreme Court's decision in KSR on obviousness. And one of the big open questions was whether this old federal circuit doctrine called the analogous art doctrine still applied after the Supreme Court's KSR decision. And I was reading what, what, ⁓ just the opening brief that Mr. Klein had filed. And it occurred to me that he had a pretty good argument that if the analogous art doctrine were still the law, then the patent office made a huge mistake in rejecting his, his application. And so I just called him. and we chatted for a bit ⁓ and he was really interested in having me help with the case. He was willing to hand this over to this young lawyer who hadn't argued one of these before, but seemed to know what he was talking about and didn't have the money to pay for ⁓ WilmerHale rates. I then talked to some of the folks on our ⁓ department management and they thought this was a great opportunity and were willing to let me do it on a pro bono basis and that worked great. I worked with him. I argued the appeal. We got a judgment from the, an opinion from the federal circuit, presidential opinion reaffirming that the analogous art doctrine remained viable. And then the patent office ended up having to issue updated rules. was pretty cool. And I later did, years later, ⁓ talk to Arnold Klein's ⁓ wife right after he had passed away. And she sent me his obituary. And in it, there's a whole sort of section about how this was such an important part of his life that that having the opportunity to be part of a challenge that really helped individual inventors and to take that all the way to the Court of Appeals was a really important part of what he saw his legacy as. And I thought that was super cool to be part of that. It was also just a great opportunity for me to get an argument opportunity early in my career.

Khurram Naik: What I'm so struck with that approach is that, ⁓ know, Lewis, you know, and this is something that was a takeaway when we had our conversation all those years ago was, I mean, you, you'd gone to Harvard Law, you had clerked at the Fiddle Circuit, you were counsel at, you know, one of the strongest firms in patent litigation. And I think any number of the lawyers in those circumstances, ⁓ I know this because these are people that I know and talk to regularly, ⁓ would have just way different opportunity. It's something I hear a lot from people of that seniority that you're at is, well, the partners are the ones who argue things in court. And I haven't had that opportunity yet. That's a phrase I hear a lot from people of a certain vintage. And so I'm so struck with someone of your credentials. think just you could say, Hey, you know what? Everything's worked for me so far. Like I'm clearly good at this. I'm good at this system. And the system Wilmer has tons of patent trials. I'm going to get my day in court, um, to, to, advocate, to, practice all these skills. So you could have let the work come to you, but you, you chose to go to the work. And I think that's really remarkable. I'd like to hear you talk a little more about where that drive came from. Have you observed that in others? Because it seems to me to be rare. And I will point to your credentials and background. It seems to be particularly rare among that demographic.

Louis Tompros: Yeah, it may be a little bit of a personality thing, but I definitely ⁓ have always looked for interesting opportunities. And I'm just attracted, perhaps naturally, to new and interesting things. Maybe I get bored too easily. Maybe I don't like the safe path. And you're right. Look, I went to the Harvard Law School and have Ada and have the great privilege of working at a fantastic, fantastic and very prestigious firm. I think to me that has, you know, I don't know, to me that's, I feel incredibly lucky and incredibly privileged to have that. But I think it's always seemed ⁓ to me like there's this, when things kind of present themselves, when there's sort of an opportunity to go after, I do kind of. I like it's often worth a shot to go after those kinds of things. So I don't know, the drive for me comes, maybe it comes a little bit out of ⁓ always being interested in the next new thing and always looking for ways to kind of challenge myself and do something different and new. And I think, I don't know, I think if there is a through line to my career, if it's possible to find one, there's a little bit of that. do like, I... I like to get good at things. And then I very quickly like to find the next interesting thing to get good at. I like that challenge and I like to continue to learn. that's probably the biggest motivation. I did not, when I took the client case and when I've done other things in my career, I didn't sort of do them with an end goal in mind of, ⁓ I'm going to argue a federal circuit appeal and therefore this thing is going to happen. I think I can do this. ⁓ You said it correctly that most firms, including mine, it's mostly partners arguing those appeals that there are some great times to try to make opportunities for more junior people, but it's rare. So if I wanted to do this, I was going to have to try to find a way to get it myself. It looked interesting. It looked fun. I wanted to do it. And so I did it. And I think that it's a little bit of motivation by way of being continually interested in learning and doing new stuff.

Khurram Naik: On that note, I'd also like you to share your adventures in patent prosecution.

Louis Tompros: Yeah So I am NOT a patent prosecutor Hilariously, I am right now in the process of coaching a team of my students in the national patent drafting Competition every time I meet with them. I have to remind them like I am NOT a patent prosecutor This is not what I do. I I am NOT a member of the patent bar. I've read a lot of patents I've read a lot of patent prosecution and I teach patent law but the you know I'm going to give you my advice, but this is not my day job. did, however, at one point decide that I wanted to understand it and try it. So as you mentioned, I clerked for Judge Lynn at the Federal Circuit. And I actually went to go clerk ⁓ after being at the firm for roughly four years. So I had been kind of doing this law firm life practice, working very hard, working sort of long hours, ⁓ doing all these. incredibly interesting work, but at sort of a law firm pace. And then I went to go clerk for Judge Lynn and the work was incredibly interesting. But candidly, had just, I went from law firm pace to appellate court pace and it was different. It was slower, it was more deliberate. We had a lot of time to think about things and as a result, I had probably more free time than I was used to. ⁓ things just kind of fill the time. so, My wife and I had just had our second child when I was clerking, and he was a baby, and we were in this tiny little apartment in DC, and we were trying to figure out how to manage him in this tiny little space. And we ended up coming up with this kind of weird combination swaddle hook thing, where we could kind of bundle him up and then. frankly, kind of hang him on stuff, mostly hang him on this hook that I'd installed on the wall. And he would very happily sit there in his little thing and we hung him on the hook. And it was probably not the smartest or safest thing to be doing with the baby, but it was interesting. And then I decided, you know, I've never prosecuted a patent. I wonder if I could do it and figure out how this works and kind of go through it to understand it better. And now we've got this invention of this baby hanging from the wall invention. Why don't I give it a shot? And so in my free time, I wrote up a patent application. ⁓ I did all the drawings myself using a very old ⁓ 3D drawing program. read the parts of the Manual of Patent Examining Procedure, the MPEP, that I needed to read to figure this out. And I filed the application. ⁓ It was ⁓ ultimately unsuccessful. The examiner issued a four-reference combination, obviousness, rejection, which I still think was wrong. But it would have, I think, cost me something like $500 to appeal it to the board. And I was not going to pay at that point to try to keep on going. But it was really interesting experience. And it was a really kind fun use of time. Hilariously, many years later, I learned that ⁓ someone had been writing a book about failed inventions and had searched through various patent application publications and had found my invention. my wife said my invention. And so there is actually in this book of it's called something like, know, inventions that could have changed the world, but didn't. There's a hilarious description of my baby hanger with one of my terrible Google SketchUp drawings there. So it, guess, has made it to the the patent wall of shame as far as that goes. But it was fun. was a really, I'm glad I did it. I definitely learned a bit about what that process is like. You do not want to hire me as a patent prosecutor. Do not have me try to prosecute your patents. It would be a bad idea, but at least I know a bit about it.

Khurram Naik: Yeah. And so again, I think, you know, I have observed this theme of, of taking manageable risks. You know, these aren't completely open ended risks, ⁓ you know, but, these manageable risks to, for learning and not necessarily for, like you're saying, some objective gain, ⁓ some, some definable payoff. I think they'll be interesting to start talking about ⁓ how you think about

Louis Tompros: No.

Khurram Naik: risk because I think that's something you've been early to a number of spaces in the course of your careers. And so I'd be interested in talking about how you think about the projects you take on because the context is I think I'm starting to see in the podcast and talking to successful lawyers who are often litigators and a number of them patent litigators. is there's I think this distinction or relation between strategy and opportunism. So, you know, it's something that, you and I have talked a little bit about. And so there's a relationship between the two. So strategy involves a little opportunism, opportunism involves a little bit of strategy. But I think learning about how you've chosen some of these creative projects and what others can infer, what others can learn from your progress. mean, so there's things like the Pepe frog, copyright litigation and, you know, something I was struck with that when I saw that you did that was not just the subject matter's relevance, you know, it's just here's this like interesting way that IP plays into some larger conversations. But, you know, it was also early and it was, it was copyright litigation and, you know, even just a handful of years ago, copyright litigation was, you know, obviously just a small fraction of what it is now. ⁓ thanks to all the AI disputes. so, but that also, I'm guessing, gave you a foothold in space that would have seemed completely, I would be surprised, Lauren, if that was something that you had in my perspective way, or anyone could really have, you know, would be reasonable to forecast. So I'd like to learn some more about this, maybe it's opportunism. How you select these projects, how you come to them, and what others can learn about.

Louis Tompros: Yeah.

Khurram Naik: How can others be a little more opportunistic and just kind of pursue interesting things like that?

Louis Tompros: Yeah, I think you're right that I think if I had to sort of think about do I have an overall career strategy, really fundamentally is one that is opportunistic that I see things that look interesting and maybe I just have a good instinct for this. But for me, it's the things that I latch on to when they kind of appear in the periphery of what I'm doing are things that both look interesting and fun to me, and I can envision a potential upside if it goes well, a potential longer term upside. And I think that, you as you mentioned the Pepe the Frog work that I did and continuing to do for Matt Fury, you know, out of the blue, an email came in to a listserv that we had of someone that knew this cartoonist's wife who was interested in trying to figure out if anybody could do copyright litigation against Alex Jones and the alt-right because they had appropriated his cartoon frog. And that was this kind of the, and to me, of course, that seemed interesting. And I knew enough about copyright litigation ⁓ on sort of the periphery of the patent work that I'd been doing. And I'd done some other smaller related copyright and trademark cases at the time. that I thought this looks really interesting. And I did, I would never say that I could have predicted that copyright litigation was going to take off and technical copyright litigation in the AI space was going to be so important. Of course, of course I didn't, but I did have the sense or the instinct that expanding my own practice and expanding our firm's footprint in this space. in the copyright space more generally, particularly with something that had the potential of being high profile such that if it went well, it could be valuable. I certainly had an instinct that that was a potential payoff. The main motivation, honestly, was that it was interesting and it seemed like the right thing to do. But I had certainly in the back of my mind this idea that expanding into those kinds of spaces is the kind of thing that could have great long-term benefits. And so I did. indeed represent ⁓ Matt in a whole series of litigations, most famously the one against Alex Jones's Infowars ⁓ for misappropriating his cartoon character Pepe the Frog. ⁓ It was great case. We had a big summary judgment win that then led to ⁓ the other side ultimately caving and paying Matt everything and stopping this use, which was great. ⁓ There was a movie made about it, which was super cool. I got to go to Sundance, which is not something I'd ever thought I would get to do. And it was really interesting. And it did, think, position me and position a lot of the folks at our firm really well when copyright litigation in the technology space really took off. And I've had the great fortune of being able to be involved in a lot of that work where all of the the technical competence and the litigation skills that I developed over many, years of patent litigation, plus the copyright knowledge that really took off with that seizing on that one opportunity but a cartoon frog, that combining that really ⁓ happened to work incredibly well in this era of AI copyright litigation. I think if you sort of draw something from it, I do think my primary motivation for taking on new things is because I think they're going to be interesting and worthwhile. But I do think, I do keep in mind, is there a potential for if this goes well for it to have some greater benefit for me, for my firm, for my colleagues, for society at large? And that definitely is there as an additional motivation and filter as I'm looking at opportunities as they kind of present themselves.

Khurram Naik: So in thinking about how to use your time and resources, isn't, you could just say, hey, I will look for really interesting opportunities in patent law. Like you could have this approach of, I'm gonna have a core competency and expertise and focus on that, laser focus on that, and just be the absolute best in the space and look for every opportunity to be the very, very best in the space.

Louis Tompros: yet.

Khurram Naik: And so you could be, let's say, you know, going with a dendring client, like, hey, that was an option in the patent space to build your skillset. So you could just say, hey, like, that's all I'm doing. It's just looking for every option to build my skillset in the patent space. What was it about apart from the raw interest you had in the topic? Was there some other theory you had about the or inclination or idea about the benefit of core wheelhouse plus something slightly adjacent?

Louis Tompros: It's interesting. It's hard for me to say that I had a particular instinct that that was going to matter, though I can say two things about it. The first is I think that any time you kind of overly box yourself in into any particular area, you're missing potential opportunities. And I've been, you I've been part of a world of patent litigation where it was always patent litigation plus some other really important stuff adjacent to it. And I dealt with patent and antitrust issues before. I dealt with patent and standard setting issues when that first came up many years ago and seen that the relationship between those areas really mattered. I'd seen this interesting world of design patents in a couple of cases and how that intersects with trade. and the rest of it. So I'd always been somewhat appreciative of the idea that you can't be laser focused in completely because so many of the cases are going to involve these adjacent issues. And the second thing I would say is I have become a firm believer that an understanding of related areas benefits both the your core competency and the related areas. And so I often think I do a mix of patent trial work and patent appeals work. And I have colleagues and friends here and at other places that are laser focused on just one. I'm just a patent trial lawyer or I'm just a patent appellate lawyer. And I get it. I understand the focus. I think that having argued a bunch of patent appeals makes me a better trial lawyer. And I think that having tried cases makes me a better appellate lawyer because I can see the way that the trial plays out and what I'm looking for and how to brief those issues. And I can see from the appellate perspective the things that are going to matter for trial and where I can cut and where I can focus and for purposes of preserving an appellate record. And I think the same is true across different areas of intellectual property in particular and possibly more broadly. And I did just in the past few years. have a very significant case ⁓ at the federal circuit on a complicated patent damages issue. And the way that I saw the other side, we were representing the defendant and they had a very aggressive damages view around the reasonable royalty statute. And I could see that the way that they were arguing it was fundamentally arguing a disgorgement of profits type argument. Now I had done enough copyright law to know that that fundamentally is a copyright remedy that is specific and called out in the statute and the copyright space and very much not called out in the patent space. And I was able then to articulate a theory, both at the district court and then ⁓ as part of the appeal, that essentially they're seeking is a different kind and nature of remedy. It is a kind of nature of remedy that is known, and it is known in this other area of law and called out in a very specific way. I think, but for having done a fair amount of copyright work, it wouldn't have occurred to me to make the argument that way. And that's just one example. I do see that those each, becoming laser focused has its advantages for sure. The danger of laser focused is that it can lead to you having blinders where you're not seeing something very helpful in some adjacent area. So I certainly teach patent law. I focus, I think, on patent law. But I also think of myself as a copyright litigator for sure. I think of myself as a trademark litigator for sure. And that generalism does help me in both areas, the ability to translate from one to the other.

Khurram Naik: That's very interesting. Can you be more specific about the relationship between your trial work and your pilot work and how one helps you get better at the other?

Louis Tompros: Yeah, mean, think ⁓ trials are crazy for folks that have been through, especially patent trials. So many patent trials are compressed. They end up, in many jurisdictions, being five days on a firm time clock. ⁓ When I teach my patent trial class, the students have to do it in two days on an even more firm time clock. So you're always making decisions, and you're always having to make determinations on the fly that that have consequences. The way that I like to think about trials is that they are fundamentally a simultaneous presentation to three audiences. You're talking using the same words, the same slides, the same witnesses, the same questions. You're talking at the same time to the judge and the jury and the court of appeals. And it's that last piece, that court of appeals piece, that can really easily get forgotten in the moment, right? When you're in the fight, in the thick of it, ⁓ fighting something out, if you don't have really good instincts for what you are going to need to make sure it gets done to preserve the appellate issues you need to preserve, you will make mistakes at trial. If you don't know what's never going to matter on appeal, you can burn time at trial in a way that's not materially advancing your theme or winning the hearts and minds of the jury and that the judge could care less about. but you don't know that you're never going to appeal that issue. You can end up wasting time. You can end up ⁓ really ⁓ mucking up your trial presentation for no reason. So I think that the more experience that you have with appeals and appellate strategy, the better choices you can make at trial day to day. Honestly, I think that's something that carries through all aspects of litigation. And that's one of the biggest pieces of advice that I give to junior lawyers is, You really, you have to do your best to at least get in the room to see things all the way from the beginning to the end of a case as soon as you possibly can because it's very hard to write a set of document requests until you have engaged in a meet and confer about document requests and understand what the fights are gonna be. It's very hard to engage in that meet and confer and know what matters. until you've used those documents in depositions. It's very hard to take a deposition until you've seen the deposition used at trial. And it's very hard to make trial strategic decisions until you've gone all the way through a verdict and then seen whether it holds up on appeal. So if you can see the through lines, it does make you better at certainly all of the earlier decisions. And I think it does help give you context for some of the later ones as well.

Khurram Naik: And then maybe I missed it, but the symmetry is like, what is it about the improves about your arguments before the Federal Circuit with a mastery of how things play out at the trial court?

Louis Tompros: Yeah, so I think there it's understanding the choices that get made that lead to that, you know, in the trial process so that you know where to look. If you've gone through, even if it's not your own trial that is on appeal, if you've gone through trials and you then begin the appellate brief writing process, you have a much better sense of where the bodies are going to be buried. know, so many appeals are not ⁓ about or won and lost about the big flashy issues that were decided at trial. They're about the failure of proof on some particular element of some claim in the infringement analysis or an error somewhere in the jury instructions that nobody really paid much attention to even though there was an objection noted somewhere. So understanding all of the detail that goes into all of that. It makes you certainly a better issue spotter on appeal. And I think it makes you a better judge of the kinds of issues that you ought to be spending time looking for within the trial record to make a better appeal if you've actually gone through that process. Now, that's not to say there aren't brilliant appellate-only lawyers who can do that just as well as I can. But I do think having done a lot of that trial work, it gives you a sense of what to look for in a way that it's hard to do without having lived it from the trial level.

Khurram Naik: you said there's three audiences, jury, of appeals. ⁓ And I hope doesn't seem but is the client fourth audience?

Louis Tompros: Yeah, it's funny that you say that. When I teach, I do a whole ⁓ lecture for my trial advocacy class on the three audiences and how to think about them and ways what matters where, how you sort of map out what is a jury thinking, and then what does that mean you need to do. And I always then end that with a slide that has one of my many favorite New Yorker lawyer cartoons that is a person standing up in court saying objection this makes my client look bad and I I point out to them that in in the real world there is always the fourth audience of your client right and and that ⁓ can be a challenge especially for a litigator who's crafted a strategy that is going to win everywhere else and then you realize actually what your client cares most about is keeping this piece of financial information confidential, or actually what your client cares most about is this aspect and not that aspect. And you can win the case and still lose. And that's something that you do have to absolutely keep in mind the whole time. And it can be an extra challenge and one that is, I don't know, it's another ball to juggle in the course of this trial work. I think if. If it were up to me in sort of a pure world, you would have sort of like, and I could sort of pick, I would get to dictate my client's strategy and it would be the thing that's going to win this case. But of course we know that's not the way the real world works and it's not about winning the case. It's ultimately about what's best for the client. And that does often lead to conflicts and challenges and having to juggle and pull back on arguments you'd love to make or make arguments that are not as good, not because the judge or the jury or the court of appeal, but because they really matter to your client.

Khurram Naik: And maybe we can come back to that client management dimension later. But what I want to pick up on is, you've explained in two different contexts, context, the importance of context for, you know, with your understanding of patent doctrine, then copyright doctrine, you know, one was able to inform the other, you know, beneficially.

Louis Tompros: Thank you.

Khurram Naik: and then try and appeal. These are mutually informative. It's interesting in hearing you talk about your work in recline, your patent prosecution adventures, and then the Pepe or Frog. And something I was noticing is that you are on the plaintiff's side for these. And so Wilmer is ⁓ very much a defense-oriented firm. And so I wonder if you can talk about the relationship between plaintiff and defense work. My first reaction was, well, Louis, you seem to have all these instincts as a plaintiff's lawyer another interesting theme from this podcast I have seen has been the value of diversification for senior talent. So like I interviewed Kalpana Srivastava, co-managed partner at Sussman, well known for being outstanding, largely plan aside lawyers. And so Kalpana is very well known for her plan, it's work in patent and then also antitrust. And so the question I asked her is that, well, look, you've done just about everything that you could do in this way as a patented, what comes next for you? Like how much bigger could your cases get? And she said, hey, the real adventure for me now is being able to do both plaintiffs and defense work. And so that's really what's universal. Then later in the conversation, asked her, what's a Fermi admirer? expecting a very skillful redirect to Sussman. so she mentioned Houston Henning and say, you know, they get lots of trial work and do both plans and defense work very, very well. So I expect the answer is just as you're saying, relationships, since they try to appeal the correlation between plans and defense work. But I wonder how you think about that.

Louis Tompros: I think you've correctly predicted what I would say about this, which I do think that there are advantages to doing both. it is funny, you're right. Wilmer certainly has the reputation as, in the patent space in particular, as representing a lot of defendants. Although it's a little bit more nuanced than that in that we tend to, in the technology space, represent companies that are doing stuff that are not practicing entities or universities, companies that are making, which tend to be defendants in the technology space. In ⁓ the pharmaceutical space, we tend to represent branded pharmaceuticals which actually do tend to be plaintiffs or declaratory judgment patent owners, so quasi-plaintiffs. And it is funny because you're I agree with you. probably have represented more defendants or been on the defendant side of the V materially more over my career than on the plaintiffs side. ⁓ That said, I was laughing because a few years ago I won the ⁓ plaintiffs Trailblazer award ⁓ from an organization that was sort of handing this out for a couple of plaintiffs cases that I did. So I don't. think of myself really as a plaintiff side or defendant side lawyer, you do have to orient yourself a little bit differently. And when I'm representing a company that is going to sue a competitor or otherwise, I often talk with the team about there are different degrees of focus and things that you have to do differently. And certainly when I teach this, I talk with folks about the things that plaintiffs who are going to make a good case that's actually going to stand up ⁓ have to do to make it work. ⁓ But I actually think that just like there's a lot to learn from trial and appeals, there's a lot to learn from being on both sides of the V. In front of a jury, the jury dynamics and the ability to tell a story and to paint yourself as the party that is fundamentally the one that the jury wants to root for, the good guy or the innovator or the person doing the right thing, those kinds of things are. ⁓ Plaintiff's lawyers, I think, figured that out a bit before defense lawyers did in the patent world. I think in the patent world, we've now kind of all figured that out, and that the importance of that narrative is there from both sides, at least in patent cases that are litigated at sort of the highest level with the greatest stakes. So there's always this narrative importance. And I think that much like on appeal, having done trials lets you know where the flaws are. Having done cases from the plaintiff's side, I think I have a better sense of mistakes the plaintiffs can make when I'm representing a defendant and vice versa. I think it is very similar that there's an ability to learn and to apply those skills on both sides. I survey. my trial advocacy students every year, because I divide them into plaintiffs and defendants teams. And I survey them to make sure that I'm getting a balance of technical skills and litigation skills for these law students, litigation experiences for these law students as I'm dividing the teams up. And I always ask them, all things being equal, would you rather be a plaintiff or a defendant in a patent case? And it's fascinating year over year the way that this changes. I've had years where everybody wanted to be the plaintiff. And then I've had years where everybody wanted to be the defendant. I think that there are really interesting aspects to both and really interesting skills that you get to bring to bear on both sides. I wouldn't have it any other way. I like doing a mix.

Khurram Naik: I think so when it comes to patent and copyright works, I'm just thinking of the buckets of context. you know, there's not some obviously different, say, risk profile or posture for the kinds of clients you're working with in one of these doctrines. When comes to trial versus appeal, there's things like the kind of one of the key things you're looking on the appellate side is standard review and kind of looking for favorable standards of review, ⁓ depending on what your posture is, of course, ⁓ whether you're trying to overturn a trial court decision or not. But when it comes to plaintiff's defense, think risk profile pays off. is a lot more relevant, right? Because like, you know, for a ⁓ large ⁓ tech company, you know, they have a very different risk profile than, you know, somebody holding the copyright to Pepe the Frog, right? So how do you think about, so that seems to be a really remarkable, very different calculus. So can you talk a little more about how you think through those opportunities? Again, you've got, there's only so much time.

Louis Tompros: Yep. Yep.

Khurram Naik: for you and then your team. like, how do you think about, know, when you think about these different risk profiles of planet defense work, you know, how do you think about those two?

Louis Tompros: Yeah, I think it is in part driven by the client's own strategic objectives. And this is where that fourth audience of the client really is the driver. have, thinking about just the patent space in particular, I have represented clients who fundamentally would be just fine in a world without patents and fundamentally therefore want to take positions where they vigorously defend patent cases and want to, in some instances, make clear that they're not going to be a cash register for the next person with a weak patent to come after them and pay out. so they want, so their risk profile is more driven by this sort of broader policy. Also represented clients in the patent space who have really important patents of their own. and are also the target of competitors or others. And so I've had these competitor-competitor patent cases where I've been on the plaintiff's side for one case in one jurisdiction while at the same time on the defense side for another another jurisdiction. I think at the end of the day, the risk profile of different firms, law firms is a little different there. We don't tend to do contingency style plaintiffs work at WilmerHale. We certainly have all kinds of interesting alternative fees and things that we're willing to offer folks, but we're not in the world of representing class action plaintiffs or doing big contingency focused litigation. So for us, it's much more about what the client's strategic objectives are and what makes most then tactical sense to use litigation. particularly intellectual property litigation in a way that's going to advance that. Sometimes that's fundamentally sitting back and saying, yeah, we've got a great patent portfolio. You don't want to mess with us, right? And playing mostly defense. In other instances, it's taking a more aggressive, offensive approach. And that's when you get to file cases on the plaintiff's side. So it's a little bit, ⁓ I would say it's much more driven strategically from the client's perspective. And in terms of what kinds of cases I end up preferring or wanting to take there. Candidly, that tends to be more also client driven and relationship driven. I have great relationships with a variety of different clients and as do many of my partners and I'm perfectly happy to understand their strategic goals and kind of go the direction they want to go and leverage our skills and abilities there. I will be. The first to say I do not have an MBA, I would be a not so great CEO driving strategy of a big public company or otherwise. I'm very good at taking someone's objectives and then using the tool that I know best, litigation, to try to get what we can out of that to advance those objectives. But in that sense, I'm much more like... a football quarterback than a coach or a team owner, right? I know what to do and can give great advice and make great tactical calls in those specific positions. But I'm largely guided by my client on the broader sets of risk questions.

Khurram Naik: You're an owner of a law firm though. So as an owner of a law firm, do you not set that sort of objectives?

Louis Tompros: It's true. Yeah, mean, honestly, I have the great fortune of ⁓ working at a place where I very much trust the management, and they are doing a great job of guiding those things. Law firms, I think you appreciate this, having dealt with so many. Law firms are weird, right? It is ⁓ a whole bunch of cat herding operations, where there's a bunch of partners, me included, that have sort of our own interests, our own objectives, and are kind of going our own way. God bless the management team that tries to kind of keep us generally steered in the right direction. And I think firms can set and do set strategic policies and goals, but firms are just made up of a bunch of people, kind of each individually doing their own thing with each of their own individual client relationships and trying our best to row in sync never perfectly. So in terms of what the firm is interested in, I think at the end of the day, ⁓ The firm has its values and its deep commitments to things that are very important to us as a law firm and as a community. But in terms of what we want for our clients, we want for our clients what our clients want. And we're willing to kind of give them the strategic advice and help them figure that out. As to prioritizing between different clients ⁓ and prioritizing between different issues, I certainly want to avoid positional conflicts or issue conflicts. But I think At the end of the day, law firms are for the most part there to represent the specific interest of the client that's before them at the specific time. I don't think that the firm in the patent space or otherwise has any kind of grand policy objectives that we're trying to advance. We're trying to do the best for the folks that we represent.

Khurram Naik: And so with Wilmer, say with his patent practice, like there's certainly a number of, I think both on the pharmaceutical side and the tech side, a number of what you would call institutional clients, clients come back again. So there certainly is, you've mutually selected each other in that way, right?

Louis Tompros: Yep.

Khurram Naik: So I guess that also, that selection decision that one makes drives, okay, so fine. Maybe you don't have to find what a client says about what their objective is. You just work with that in quarterback as you're saying. This is risky territory for me because I know very little about sports. But I mean, there's a client selection component. I guess I'll build on this to ask you a question about. what you've talked about in business development and a lot of what's interesting about your work has been, again, the right thing was opportunism in the positive. That sounds like a really bad word, opportunism, but opportunistic maybe. ⁓

Louis Tompros: Yeah, I'll embrace it. You can call me an opportunist.

Khurram Naik: the opportunistic has a better competition opportunism for some reason. ⁓ but ⁓ in developing these clients, there's been a practice that you say that you learned from your colleague and mentor Billy of gift giving. And so I'm curious to hear a little more, I'm really...

Louis Tompros: Yeah.

Khurram Naik: be fascinating to learn here some more about that technique you use, which again, think followed that earlier principle we talked about, is just doing interesting things. That's the impression I have is that, you know, that just flows from less of a, hey, my goal is to cultivate these kinds of clientele, but more, hey, these are people in my ecosystem and things I can do to help them. But I'd like to hear some more about the kinds of things you do for gift giving. And then... how you make decisions around the kinds of matters you can take on, like how that evolves into this set of potential matters you can take on and clients you can work with. How do you navigate that space once that starts to form? know, what's, yeah, what are the criteria that you're applying from that? But maybe we can start with the technique you're using, because it seems very powerful.

Louis Tompros: Sure. Yeah, mean, look, I've, Billy has been a mentor and a friend of mine for 20 plus years. And I remember very early, ⁓ both watching him do what he does by way of cultivating relationships and practicing and then hearing him talk about it and getting advice from him. he, what he fundamentally said was if you do the right thing and do good work and are kind to the people around you and without kind of any reservation, do the right thing for them. That's both a really great thing to do in a very positive way to live and practice and the kind of thing that long term ⁓ ends up ⁓ cultivating relationships that end up being beneficial to you. It is ⁓ an incredibly, incredibly long term play. And it was very hard for me at the beginning of my career to hear that, you know, how do you develop a practice? How do you build clients? Well, you do good work, you do the right thing, and then you wait a really long time. But I'm here now 20 years later to say, I did, and it has worked, I think, quite well. ⁓ So, you know, And the way that I try to put that into practice is that much of my time is spent on, even today, is very much spent on things that are ⁓ not yielding any kind of short-term benefit. I am always happy to work with and mentor and teach students. And I teach multiple classes. the firm is not making a ton of money based on my teaching work. It would certainly be better for me to be billed out. by the hour rather than meeting with students and chatting with them. But I have seen in others the way that that pays off in very long term where people then want your help four or five years, six years, seven years down the road. to be clear, I actually don't do much of what I do for that reason. I do much of what I do because I find it interesting and fun. And I wouldn't build those kinds of relationships if it if it weren't also rewarding in the short term for me. I really love teaching. I really enjoy a lot of the pro bono work that I do. I really love the work that I get to do with the Equal Justice Coalition to advocate for legal aid. I mean, think that that's the primary reason that I do it is because I enjoy it. think the secondary reason is because it's the right thing. But there is a third piece of it, which is it does indeed plant seeds that pay off. long term. And so what does that mean for somebody sort of early in their practice? I I think do good work for sure. But don't be afraid to just chat with the junior person at the client and help them out. And if somebody is looking to make a move from one in-house position to another, connect to them. If somebody is really confused about some area of the law, make the connection to help them with that. If you have an opportunity to go you know, teach a law school class or visit a business school and meet with students, do it. ⁓ Because if you find it interesting, do it. But it should be interesting and rewarding short term, but also really does sort of lay the groundwork long term. It is, to be clear, you know, when I talk to my mentees at the home about this, it is a really hard thing to say. Do these things that are not billable, that are taking your time. ⁓ that are hopefully enjoyable, but not the things that are going to get you any short-term reward, but do them because you realistically can trust that many years down the road, you really will have a longer-term benefit from it. But it is true. I think I've seen it play out in my own career. And I've certainly seen it play out in the careers of others that I have worked with. ⁓ You know, there's that that's easy the cheesy line about about ⁓ doing well by doing good, but I do think it is correct Empirically that by being a good person taking care of and helping people ⁓ where you can That you will see long-term benefits from

Khurram Naik: You shared an example of this where you mooted an argument, a trademark argument. So I wonder if you can share that story or some other specific examples of how you've actually implemented this. And then maybe like you're saying, think what's helpful is that to the extent you can recall in any these instances, like what else you had going on and how the constraints you're facing because... you know, there's this saying, I saw someone say this in financial writing, to say, you know, there's this cliche in finance, you know, just buy when there's blood in the streets, which is horrible, gory line, by the way. But what this person observed is like, well, that's all well and good. But the thing is that some of that blood is yours, right? So just, it's all good to talk about, you know, like, you know,

Louis Tompros: Yeah.

Khurram Naik: going all in when you see some risky thing, but by definition, what makes it a risk is that it is scary and unknowable and there's some downside to it. So I wonder if you can talk about, to give us some more specifics about moments when you've done this and what flowed from there.

Louis Tompros: Sure. ⁓ I'll tell you one that is somewhat immediate. We started this discussion with the Klein case. I got a whole bunch of calls after that from paying clients all over the place. None of them were existing firm clients. They were all smaller, but were perfectly happy to have, again, at that point, very early stage partner take over their case that was not going to be the billion dollar case, but was going to be significant. And they were perfectly happy to have me take over those cases. And that allowed me to both build experience and bring in revenue for the firm, which of course the firm was very happy about it. And it was sort of this huge win-win for the clients because I took sort of an early risk and then saw it work. So that kind of investment certainly happens. You mentioned a trademark case that you and I had talked about. I did. I had a client that we had done some appellate work for and was very happy with that appellate work in the patent space. And they had a ⁓ trademark trial that was ⁓ coming up. they just asked, they said that, know, that the, was very last minute and they didn't have a ton of budget for it, but could we come in and do the other side of this trademark mock trial? ⁓ And they said, you know, unfortunately our finance folks had given us just this tiny amount. It was going to be kind of, you know, not a loss for the firm. We weren't going to make any money off of this. I, as a, I guess, a very junior partner, I brought a second year associate in and she and I went and played the other side of this and did it sort of mostly as a favorite of this client to kind of build the relationship. They were super impressed with what we did. And then a few months later, when the case started to go downhill, they called us and said, can you take over the whole thing? And so then we had this whole trial now. It was a challenging trial, but it was one that I think had we not been willing to go do this basically as a favor, as sort of ⁓ a low cost favor to a client that we knew and trusted, there's no way that we would have then been handed this incredibly ⁓ valuable piece of business. I would be remiss if I didn't say we then pulled it off and won the trial. And it was a great, great win for the client. They were super happy with us. ⁓ And so it turned out to be financially beneficial as well. it was it I mean it it was essentially, you know a week or so plus of my own time to you know with the thing that I knew was not going to be particularly financially beneficial ⁓ And and had no promise right no guarantee of anything else coming from it I think those are it takes a little bit like everything a little bit of practice and instinct to see which ones of those things have the potential to pay off, but those are the kinds of risks that if you do enough of them, they do indeed pay off longer term.

Khurram Naik: How can you start to attract more of those? how do you? become known as someone that people can come to for those kinds of, cause I think I didn't ever lawyer to say, Hey, like, Hey, like I'm willing to help. And yeah, I can knock on doors and say, how can I help? But then I'm guessing, you know, think better still is people wanting to come to you for help. But is there some way that someone can make themselves a beacon for, for, for helping people with problems? And I recognize, I think as soon as you say that, I think the next question is, Oh shoot, well then how do I manage? So it's just not like, how do I manage? I'm just not giving away my time for.

Louis Tompros: Yeah. Yeah.

Khurram Naik: everything and anyone. So I think those are the two things that flow from

Louis Tompros: Right? Yeah. I mean, on the last part of that, it's always going to be a balance, right? It's always going to be a balance between how, you know, and it does, it's a little bit like, like riding a bike, right? You kind of have to over correct and then over correct and then over correct. And then eventually you'll find the right, the right middle path. But I would say there are, are two basic avenues that I've used for that. ⁓ the, the one is one that I think anybody can and should use, which is just fundamentally all about relationships. That is, in every piece of work that you're doing, in every outside activity, any board that you're on, or any bar committee that you're on, or any school relationship that you have with former classmates and stuff, just maintain those relationships. Make sure that people understand. Generally what you do and can trust you and can call you and that you're and that you're willing to pick up the phone and or respond to an email or respond to a text and and and talk with them so just sort of a pure human relationship maintenance thing including very importantly for folks Reasonably early in their career with all of those, you know Deputy assistant general counsel in charge of acts that at a client that you're the person interfacing with maintaining those relationships checking in with those people and genuinely caring about what they're doing is sort route number one. And then the second that ⁓ comes with time is fundamentally reputational. And so I have tried to, in my career where I've had successes, make sure that I do what I can to make those successes known. So being willing to talk to clients about the ability to then talk to the media. about wins that you've had, being willing to engage in interviews. I talked to folks about, I've had a whole bunch of interviews with sort of like the tech press and the legal press about what is AI going to do with the industry and those kinds of things. If you're willing to say yes to those kinds of things, it does increase your... broader public profile and the combination of a lot of people knowing that you do good work, are a trustworthy person and who respect you from years of relationships coupled with a bit, a bit of broader publicity where you find opportunities to get it, I think then leads to those calls coming in. And then you're right. you have to exercise some judgment about what you're willing to. to take on in what you're not. But honestly, I think for most folks, and certainly for me, that feels like a good problem to have. I wish I could represent everybody that wants me to represent them. I do have to do a little bit of picking and choosing. But then that's an OK spot to be in.

Khurram Naik: You mentioned some of ⁓ these efforts that you've been taking, these longer term projects, it starts to take a payoff. Do you have some back of the envelope ⁓ timeframe that people should expect? Okay, if you're doing these kinds of things based on what you've observed, maybe in yourself, maybe in others, ⁓ is there a reasonable timeline to expect? I feel like that could be helpful for people. ⁓ could be misguided, but I wonder if you find it to be a helpful way to communicate how to think about this to make it little more tangible for people.

Louis Tompros: Yeah, I don't know that there's kind of a, there's certainly not any kind of a linear timeline that you can expect. I think for me, I have seen, you know, relationships that I built, you know, at the very beginning of my career, take, you know, years and years and years, certainly, you know, eight, nine, 10 years to really kind of, to result in anything immediate and tangible. I've also seen situations where we've had something that has worked really well, a client's been really happy, I've talked with the client about it, and then there's some random press piece about it, and then literally the next week I get a call from someone saying, can you do something like this, here's my problem, and can you refer me to somebody, and I refer them to the client where things went really, really well. I don't think it's linear. think in terms of timeframe, I hate to say it, I wouldn't worry about it. Because I think if you worry about exactly when the thing is gonna pay off, it ends up making you make choices you probably don't wanna make. It's a much better move to, I would first focus on, are you interested in doing this thing? Are you actually genuinely interested in this person, in this idea, in this interview, in this? publication, whatever, right? That's sort of step number one. And then number two, ⁓ is it the right thing to be doing at the time? And only then, sort of after that, you can think about whether and how it's gonna pay off. I wish I had a better answer than just trust me, it's gonna be okay, because I know that is not what somebody really needs to hear when they're worried about these things. I don't have a better answer than that. It just is a matter of... planting seeds and you hope for the best. All I can say is that from my own experience, from many mentors' experience, from many colleagues' experience, it really does work.

Khurram Naik: How much time in a given week or month are you spending on what you think of as long-term projects and how much do you, are you the ratio that you want?

Louis Tompros: Yeah. Yeah, in semesters when I'm teaching, I think of kind of all of that as very much a long-term project, right? So there, I am probably over-investing in long-term work, because quite honestly, it takes a fair amount of work to prepare and teach a class two days a week every week. And then in other instances, I don't. It's probably a lot less. So I think I am. ⁓ I am quite sure that I have a, if you were to track my marketing and such hours, I probably have a much higher hourly count than ⁓ average and certainly than a lot of other folks do. But I think it's the right balance for me in terms of how much. I mean, I would say when I'm teaching, I probably end up spending. 15 to 20 percent of my time in a given week dealing with that. I think when I'm not, it's probably closer to 10 percent or so on sort of longer range things. ⁓ Look, there are court deadlines. Litigation is tricky. When I'm in trial, it's basically zero longer range anything. I'm literally hoping to make it through the next day. ⁓ But so it certainly varies. But I think that's probably the ballpark.

Khurram Naik: So it seems to me that we were talking about earlier these practices that inform each other, trial appeal, patent and copyright, plaintiff's defense. Now let's talk about, I think, teaching and practicing. It seems to that there's a mutual connection between those two. You've already shared about what's motivating you about teaching, but can you share some more of the relationship between teaching and

Louis Tompros: Yeah. Yeah, for sure. It is funny. So I got into teaching through practice. That is, the first class that I taught, and it's been almost 10 years ago or so now, is one that I still teach. It's called patent trial advocacy. And it came about because the ABA had put into place this rule about requiring, ⁓ for law school accreditation, requiring a certain number of hours of either clinical or simulation work. And Harvard had a lot of great clinics, but didn't really have anything technology or science focused. And so they asked me whether I could come up with something that would meet this simulation requirement in the patent space. And I said, that's kind of what I do as a job. So yes, of course I can do that. And so put it together. So the practice part was like a necessary component of that. ⁓ every year, my students are most excited about the idea, and I think this is a little bit self selective, but they're most excited about the idea that they're learning from somebody who does this for real. And I can bring practical things that I have seen and done into that class. As I said, about a year and a half ago, I also started teaching doctrinal patent law, substantive patent law. And that has been fascinating. It's funny, I was chatting with Bill Lee, I mentioned many times throughout this interview, has been a mentor for me forever. And I told him that I had agreed to take this on. And he immediately, without missing a beat, said, that's great. Maybe you'll learn some patent law, which I was hilarious. But he was in some ways very right that digging back into this from the student perspective and reading the cases that I knew and that I'd used, but then sort of digging back into it from the perspective of let's go back down to the base level and build back up and make sure I understand exactly doctrinally where this came from so that can help my students. I think it has absolutely influenced ⁓ my own practice. I argued an appeal in January and there were a whole bunch of moments where I was thinking, had actually, this tangential line down which this judge wants to go is. exactly an area that I had focused on in my class and it does and so I was sort of fresh with it in a way and had thought about it in this sort of broader way. And I think that to me actually has been if I took my what has teaching done for my practice apart from the relationships and such that I build with students the the single thing that is done for my own mentality in my practice is that to teach something to students who don't know anything about anything and haven't been at a law firm and been told this is the way you write a discovery request or this is how you ask a deposition question, to try to teach that to them, you have to first back up and understand like, oh boy, I better go read rule 30 again to make sure I understand what the rules for the deposition are that then dictate why it is we ask the questions this way. that depth of understanding, I think, has really helped me. be a bit more creative in my own practice, having kind of gone back to the baseline level and know there are some things in my practice that I've been doing just because I was taught that way and just because I've been doing it that way for so long. Going back to understand where those things come from give me a little bit of sense of where there is some slack and where I can be a bit more creative in my own litigation practice. I think there's a bunch of interconnections where it's helped. If the question is, does teaching make me a better practice, the answer is absolutely. Does being a practitioner make me a better teacher? You gotta leave it up to the students, you know, so far results I feel like are pretty good. So, and I'm glad that they get at least a little bit of that balance.

Khurram Naik: So I can wrap my head around diving into the trial history of some ⁓ substantive issue in patent law. I can understand how powerful that is, particularly for an issue on appeal to understand how this should come out. ⁓ But can you say some more about, really interested in diving into the rules of self-procedure and insights you gained there. Because again, like, know,

Louis Tompros: Yeah.

Khurram Naik: I feel like most people are like, hey, I've got a sense of it because like you say, there's conventions and we all kind of do these things of how much time we take for depositions and these various different aspects. So what is it you learned from diving into those rules that informed how you practice?

Louis Tompros: Yeah, mean, ⁓ it's a little bit of just going back to the baseline, right? So in depositions, different folks have different practices about whether you say, I object to the form of the question, or I object leading, or how much you can kind of get away with, or why, right? Why would you do it one way versus the other? And if you go back and. and read the actual rule, that there's a portion of the rules of the procedure that say objections must be stated in a concise and non-argumentative, I think non-argumentative, I think there's some adjective, I believe it's non-argumentative manner. So that's the constraint. And then there may be local rules in place that affect that. But if you hadn't gone back and read the rule and understood that baseline, now you're in a deposition with somebody and they're doing some BS coaching of their witness, right? It's one thing to say, stop coaching the witness. It's another to say, rule 30 makes clear your objections have to be non-argumentative. And the next sentence says that I can seek sanctions if you don't. And that creates sort of this ability to know where the lines are, right? I'm trying to think if there are other good examples. Another one, students always ask me all the time, well, why don't we You've got the depositions in the class set up so that the plaintiff is deposing the defendant's CEO and the defendant is deposing the plaintiff's inventor. Why wouldn't we depose our own inventor on the plaintiff's side? And that's a question that nobody would ask in practice because that'd be crazy. Nobody does that. You don't ever depose your own employee witness. Why? Well, you have to go back and look at rule 31 and how the depositions can be used. And are there circumstances when you actually might want to do that. What are they? What limitations can you place on somebody else when they're trying to use their deposition in that way? Why do you ask a leading question in a deposition? Well, it's because the rules of evidence, generally speaking, apply. The rules of evidence do not prohibit leading questions on cross-examination. This isn't technically cross-examination, but it is an examination of adverse witness. So you then look to the rule of evidence that allows leading questions for that, and now you understand why. than when you're doing a redirect. It allows you to do things like object for leading. It's those sort of those little pieces of I have I watched many depositions before I took one. And I've taken many depositions and sort of have a routine and a system and sort of a practice that I use. Teaching, I think, forced me to go back and make sure that I understood exactly where all of that came from. And that does both give you a little bit more confidence and authority in doing the things the way that you want to do them, but it also, where there are differences in the practice of folks that you have seen do depositions or something else in a different way, gives you little bit of a better feel for why and why that might matter. I do the same thing for trial. We go through trial practice, how to do a direct, and we start again with what are the rules. Go through same thing with cross-examinations, rules for openings and closing. So I think. that forcing myself to go back to square one really has given me, at minimum, a greater degree of confidence in what I was doing. But I think, actually, more importantly, a little bit of a sense for I learned it this way from someone, and I'm copying the way that this one lawyer did depositions that I saw or did examinations that I saw. Here's the part of that that's mandatory. Here's the part of that where I can innovate and change if I want to.

Khurram Naik: Yeah, and as you're saying that, I've been using this word context for these different paired worlds that you've been writing and gaining mutually from being part of these two worlds. yeah, I think it's as much about testing assumptions. And so I wonder if elsewhere in your practice, does the phrase testing assumptions resonate?

Louis Tompros: ⁓ it does. It does. I it's and I think it's interesting because I have most I think most, certainly the majority of the cases that I have had have involved other large law firms, sophisticated law firms on the other side. They've involved folks that you would normally see Wilmer Hale squaring off against and lawyers who are trained in a somewhat similar way. It's interesting because some of my most interesting experiences in litigation events have been where the other side is not that. where it's a solo practitioner, and I've had a few of those that comes in to represent a plaintiff in something, or where it's somebody that just isn't normally a patent lawyer and has come in to do this from ⁓ an interesting arbitration where the other side hired their ⁓ essentially real estate and drug advocacy lawyer to deal with this copyright arbitration. And seeing folks coming into this that don't have that kind of same level of background noise and assumptions and such that the patent practicing world or the IP practicing world more broadly has. Watching them do things and then object to things that I do and needing to be able to figure out why it is that I do it this way and what's the basis for that is very much about testing those assumptions. I think that there's some value to understanding. understanding why we do things the way we do them and both for defending them if you need to against somebody coming into this goal, but also for figuring out do I really need to be doing it this way or not. One of my colleagues just had a trial ⁓ in January and he had done something that I've never done, I've thought about, but I've never done, which is that on the defendant's side deferred the opening, right? And I don't know if you know that you can do this. You don't have to do an opening statement. Immediately at the opening of your under the federal rules of your own case You can defer the opening until the beginning of the defense case and in the patent space that almost never never happens right because usually you would want the the jury to hear your side and Not sort of just get this one-sided view as going into the plaintiff's case and for tactical reasons They we've thought about it and what it was very creative idea wanted to do it One of the big sort of questions was, is this allowed? Are you allowed to do this? Can you do this under the federal rules? Can you do this under the local rules? Ultimately, concluded that he could, and it turned out to be a very effective tactic. But it's the kind of thing that you only sort of think about if you go back and know what the rules are and aren't operating on this background noise of assumptions.

Khurram Naik: Why was that an effective? What perspective made him think that was going be helpful then why in fact did it pay off?

Louis Tompros: Yeah, was my colleague, Joe Mueller, did this in a really interesting case for Apple. And I don't know all of the details. I only sort of have the public version of what happened in the case. But I do know it was a case where it wasn't, I don't think, entirely clear going in exactly which direction, which theory the plaintiff was going to go with. And so there was an advantage there. And it allowed for some sort of reframing, which I think I think that was a part of it. I can imagine tactically that being a good reason to do that. ⁓ But you don't know that you can do it unless you know what the rules are from the beginning and get out of the way of like, this is how a patent trial always works. We always do it this way. You have to have a degree of creativity to break past that.

Khurram Naik: Can you talk about the relationship between teaching and persuasion?

Louis Tompros: It's interesting. I mean, I'll say a couple things. One is, we're in an era, at least right now, of a great deal of mistrust in authority. And I think that that affects, ⁓ and I think psychological research shows that it affects the way that jurors, and to a degree judges, interpret the arguments that come before them. I it really used to be in the pre-CSI era, used to be you just trust the witness that comes in front of you. And if they seem like, that's a professor from MIT, they must be super smart. I believe them. Then you get into the CSI era, and it became a bit more of like a show me, ⁓ that's a professor from MIT. And he gave me the forensic file of the source code. Therefore, I trust him. And I think. I think as sort of just general mistrust pervades American society for political and other reasons, that we're seeing more and more jurors in particular, and I suspect this affects the judges as well, ⁓ having an even greater degree of presumptive hostility and mistrust toward anybody in front of them, right? This idea that if you're a lawyer, You're presumptively lying to the jury. You're presumptively trying to dupe them. And if you're a witness and you're testifying and you work for a company, you're presumptively trying to just serve your company's best interest. Everything you say has to be taken with a grain of salt. I can't trust a word you say. All of that. And there has to be a way to cut through that. I think that at least one good avenue to cutting through that is a teaching approach to persuasion or teaching approach to conveying information. So I know when I have expert witnesses in patent cases, I think having the correct technical expertise is important, but not anywhere close to sufficient. I am always looking for excellent communicators and specifically excellent teachers, right? The people who the computer scientist who has has won like the undergraduates favorite teaching award, right? Is great. is great because they get the gist of the issue, but they also can convey it in a way that will make the audience understand as much as they can, but also feel like they are understanding. And that is incredibly powerful at engendering trust. So I think that skill is really, really important. And I think as a result, lawyers who who try to practice that, who try to also be good teachers in the classroom or just practice a teaching style of advocacy, can cut past a bit of the general degree of mistrust of lawyers. So I certainly try in conveying a case to a jury and in conveying a case to a judge, conveying a position to a judge, to do my best to make them understand or at minimum make them. get that I'm trying to help them understand because I think that establishes a degree of trust. Now, you have to be genuine about it. You can't be in a position where you're trying to hide the ball from the jury and just sort of wave your hands and make them feel like they understand because the jurors, they'll see through it. Certainly, judges will see through it. So you have to do your best to actually do the teaching work, both in a trial through your witnesses and then an argument yourself. And I do think that having that kind of mentality helps. I don't know whether actually doing the classroom teaching makes me better at that or not. I suspect it does, but I think the mentality is what certainly matters.

Khurram Naik: What seems powerful about that is... can picture, you're talking about like, know, the student's favorite computer science professor, whoever. And what I'm picturing so vividly at moment is here's someone who may be very, they may be young. They may be from a school that maybe is not prestigious. It doesn't have to be any of these, but it could be these. But so this person may not have a lot of conventional forms of authority in the courtroom. And yet, It is the, what they're saying and how they're saying it is, so helpful and so engaging that you're not even tracking, you know, like, what's the first authority? And I know that because like, I think that's what's powerful about this era of social media where, you know, I'm just amazed by all of the, you know, the individual, the amateur experts that are out there.

Louis Tompros: Yeah.

Khurram Naik: Um, and any of them may, may, you I watched some clip on some random thing, like maybe somebody talked about the, you know, evolution of, of romance languages, a topic that I'm interested in, but, don't have substantive expertise on. And any of these times I have the question, this is maybe some PhD students somewhere, you know, who knows where, but it doesn't matter. I don't really need to know their credentials. What makes them so impressive? You know, uh, if, know, what they're saying is.

Louis Tompros: Maybe.

Khurram Naik: helpful and well structured. So it seems to me like a powerful leveling ⁓ where, you if you adopt this mind, you happen to have, you know, this like, you know, this very impressive law firm and you have all this experience ⁓ yourself, but someone who is new, you know, maybe a new first year trial lawyer, this technique is going be very powerful that they can use ⁓ that levels of playing field.

Louis Tompros: See you then. I think that's right. think that's absolutely right. And it's a good, ⁓ it, does, ⁓ it, ⁓ especially, especially now, I don't, I don't think, think credentials are, they have some value and they certainly can get you in the door places. And I wouldn't ever discount that, but I, I do think in a, in a longer format, ⁓ event, like a trial, like an argument, ⁓ et cetera, it really, ⁓ the, presentation itself. matters and the focus on being able to convey and teach and build up knowledge with your audience really does make a difference. And I need to figure out what podcasts and videos you're listening to about the history of romance languages. hear it sounds interesting.

Khurram Naik: Yeah, I I'll have to, I try not to get too pulled into anything. So I don't know, that's good. I'm not gonna get too pulled into this world. ⁓ So you mentioned, ⁓ we had talked before about a couple aspects of courtroom approaches. And so one is thinking about,

Louis Tompros: Hahaha

Khurram Naik: jurors, they don't show up as blank slates. They have experiences and they're drawing inferences. And so I think a really interesting inference that you mentioned they draw is that a patent trial, as you're saying, takes, let's say, week. So you're asking jurors to take a week off away from their work and family, ⁓ and hopefully not too much family. ⁓ so ⁓ what they infer from that your familiar experience is that this must be important. You don't just ask them when to take a week off of your life for some other thing unless it's really important. And so the jurors are showing up and so one takeaway is they're taking this really seriously. But ⁓ I wonder if you can talk some more about, again, on this topic of persuasion and ⁓ about jurors and ⁓ what you think is effective and maybe we can also talk about what's ineffective. ⁓ you often reference some ineffective defense strategies in patent juror trials. think ⁓ talking about, or maybe plaintiffs as well, but you know, ⁓ it sounds like defense could be ⁓ more experience that you're bringing. But yeah, I wonder if you can talk about those two aspects. ⁓

Louis Tompros: Yeah. No, so I think, I think that's the way that I think about jurors or any of the audiences for trials. You first sort of have to understand, try to put yourself in the position of this decision maker. What, what, are they bringing with them and what are they being asked to do? So when you sort of think about a juror, right, in a patent case in particular, a juror, number one is going to be unfamiliar with the legal system. large they're coming in and like there's a bench and the flags and the seal and the Guy up on the thing with the robe. It's a lot right jurors are going to be overwhelmed by that generally They're going to be certainly almost to almost always Completely unfamiliar with patent law and patent law is no joke It is not trying to lay hard as folks that have tried to figure it out now and they're Incredibly unlikely to have any familiarity with the baseline technology in any in any patent case So they're coming in to an unfamiliar Intimidating situation feeling like they don't understand what's going on. They don't understand the legal issues and they don't Understand the technical issues and then you pair that with the fact that there is a ⁓ general sense of of mistrust of lawyers They know the one thing they do know is that lawyers get paid by their clients So everything that you say and everything that opposing counsel says is just what you're being paid to say. And now you're asking them to make a decision. You're asking them either to, in the case of the plaintiff, usually say they deserve a whole bunch of money or in the case of the defendant, in the jurors mind, say you're getting off scot-free for something that you might have done. And that is a big ask, a big ask psychologically of a juror. So then how do you approach that? Well, let me say one more thing about what they're doing and seeing. The jurors are seeing everything that happens. They're judging the witnesses. They're seeing the witnesses live. They're seeing the lawyers. They're judging the lawyers live. So a few kind of consequences flow from that. With their general degree of intimidation and their presumptive lack of understanding of patent law. and understanding of the technology, they're going to feel intimidated by the decision that you're asking them to make. They're gonna feel like, generally speaking, they're not qualified to do this. That's very much where the teaching aspect of this comes in. So if you go in and you just tell a juror, you have to decide this way, that's not effective. What you need to do is instead empower them to make them feel like they understand enough. about the legal issues and enough about the technical issues that they can make the decision and hopefully your way. So that means you need to have your experts do great teaching. You need to do your own best to try to in a simple way as you can explain the legal issues so that they get it coming from you and your side and begin to trust you as a lawyer teacher. And then they feel empowered. And then when you go to argue to them, don't tell them you should do this. Instead, show them what they're being asked to decide and show them what supports your position on that and invite them to take the move to do it. So you're not sort of telling, you're instead teaching and you're empowering them. And then one more piece of this that goes along with the overall vibes of the courtroom is that jurors coming into this in an intimidating situation where they don't trust the lawyers. There's literally only one person that the jurors can universally trust and it's the judge. So the jurors very much will be looking to the judge for the cues that the judge is not supposed to give about the judge's bias during the course of the trial. What that means is that it's incumbent upon you to on your side to marry the judge. That's the expression I love to use. If you can be in a position where to the jury, it seems like you and the judge on one side and the other side. Right there, you know, the judge will do the judges level best not to show any kind of bias, but to the extent that you can create the impression that the judge is with you. That's incredibly powerful for the jurors. So what does that mean? It certainly means that you don't want to be making a whole bunch of objections to preserve your record that just get overruled. That makes you look like you're trying to hide something and the judge is is ⁓ is with the other side. You certainly want to convey a sense that everything is going your way, which is this degree of calm and confidence that it's important to project in front of jurors. And you want to make sure that you're taking positions in a way that you can have. It appear, at least, that the judge is at absolute worst, completely neutral, but preferably sort of irritated at the other side, right? Calling the other side out on stuff where the judge has to do something in front of the jury is greatly powerful. That kind of all comes together. So ways that you can mess this up ⁓ in patent trials, number one is doing things that kind of antagonize the judge to preserve your record, to show that you're a fighter, to impress your client. Those things tend to fail. Trying to sort of blow things by the jury tends to fail. Trying to attack first, right, that is to go after the other side and make it seem like their lawyer is the lawyer that's lying all the time, is almost certain to fail because the jury doesn't trust either of you, right? So attacking too aggressively too early doesn't really work. And I think in general, just trying to tell the jury that they have to do something or what they must do tends not to work. And so it's a little bit of Honestly, emotional intelligence plus a bit of understanding, and I've worked a lot of jury consultants over the years and understanding sort of the psychology of this as well, that really does lead you to try to put yourself in that position and then you can make broader choices that are more effective in front of juries.

Khurram Naik: You you talked about this concept of teaching plus helping people exercise agency, and I really like that. I think that's such a running theme that I've taken away from your career. Like just my earliest, you know, from our earliest conversation, my impression about you is that you were a very high agency. ⁓ And so I wonder if, you, maybe for a final question we can pose is for a, ⁓ newly minted partner. You're someone who I think another thing, another take we have is that you seem to be like me, a relentless optimist and that you're excited about things and there's, there's, there's always the next frontier. There's always something that you're building towards. And I think, you know, we discussed, you know, this, profession draws or cultivates a certain metastasis in some ways as rewarded. And so I wonder if you can talk about, know, maybe it's, you know, the cliche look, you know, talk to yourself when you're a newly minted income partner. Maybe that's one lens, if you find that helpful. Or alternatively just a new, you know, junior partner who's excited. You know, this is the first thing that's like, okay, I'm in the seat now, excited about, you know, the trajectory of this practice. I've certainly talked to any number of old hands in patent litigation who have played, oh, it's just all, it's all going downhill now. you know, here's the controls and all, just all these different things that just, okay, know, like what's happening at the PTO with IPRs, there's always something to lament depending on the side you're on, whatever. So for someone who, you know, if you want to cultivate some optimism and agency in someone, somebody who already is exercising that, you know, what would you tell somebody about, what are the greatest opportunities that you see right now? And maybe, know, honestly, this could be just as well framed for a peer, a peer who's like, yeah, you know, they're learning from you about, you know, how you do work and they're, you know, they're interested in how you do business development. There's any number of people that can learn from you, I think, different aspects. And I'm just curious, I think what I see that you could speak to is opportunities. I think you are an opportunity spotter. And so what are the greatest opportunities in the coming year or two that you are excited about? Not just in PatLaw. lot more broadly.

Louis Tompros: It's interesting. I tell folks all the time that I think I have one of the most fun jobs in the world because I've always been curious about how things work, right? I am basically given unlimited resources to try to understand how something works in the context of a complicated legal scenario. And then I get, after I understand it, I then get to teach a judge and a jury all about it. I think that's just so fun, right? It is the opportunity to learn, followed by the opportunity to perform. Man, like this is basically my dream job. It has been for, you for a long time. So you're right. I'm definitely an optimist and definitely ⁓ feel like there's always going to be something really interesting coming along. As far as what that looks like, you know, I think ⁓ The patent world, like any other world of the law, is sort of always in flux. One of the cool things about intellectual property law is that it is trying to apply these legal structures that are, by definition, older than the technology that is happening right now to the technology that is happening right now, and then trying to anticipate the technology, the impact of that on the technology that'll happen in the future. The whole point of the patent law, it's in the constitution, is to promote the progress of science and the useful arts. So the idea is we're trying to take these necessarily antiquated structures and apply them to new technologies. I would say there are a ton of opportunities for that that I see coming short term and long term. it is. impossible to talk to anyone anywhere about anything without talking about artificial intelligence right now. Right. But I do think we're at a stage right now where most of the AI litigation is copyright focused. I've been involved in some of that and it will be copyright focused for a bit longer. I think that is going to shift and we're going to see eventually the copyright issues get squared away and settled out. But there is a ton of artificial intelligence patent work that is really on the horizon. So if you are interested in understanding how that works, that's a great opportunity. If you're interested in understanding how the legal system is going to change as a result of these new technologies, it's going to happen in tech-focused areas first. So think it's going to happen in patent-focused areas first. We're already seeing ⁓ a lot of folks using AI-enhanced tools for patent prosecution, AI tools for patent litigation, and AI tools in court are coming soon. And it's going to be really interesting and fun. And I have no idea what's going to happen. So there's sort of one piece of it. The second is, think, know, look, the world is a crazy, crazy place right now. The country is a crazy, crazy place right now. And don't forget that patent law as well as copyright law is federal. So we have this weird situation where, you know, at any moment you can have courts in California that wildly disagree with courts in Texas, that wildly disagree with courts in Delaware, and all having these different economic priorities, business priorities. technological priorities, societal priorities, that's only going to come to the surface more and more as those priorities diverge and change. And one of the great things about patent cases generally that I've found is that the policy issues, they always rise to the surface. It is the rare patent case that is just about the very boring, does this piece of software actually use element three of claim 12? You do that. you do that, but at the same time, you're talking about how is this going to make driverless cars more efficient, or how is this going to let us explore deep space? And those things, think, the excitement that I draw is really more about the excitement about the future of technology and getting to be a part of that and a piece of that. And as for my advice for a newly minted partner or anybody in that stage, I mean, making partner at a law firm is a really impressive, impressive thing to have done. You're at this point where you've done something really right, right? And you have a million opportunities as a result. I ⁓ mentioned before that one of the cheesy New Yorker cartoons that I like, another one that I always show my students on the last day of ⁓ class is my absolute favorite. And it's this New Yorker cartoon of this ant pushing a boulder up the hill and the ant is being watched by another ant looking on very skeptically. And the caption is, when it stops being fun, I'll stop doing it. And I think that's my biggest fundamental piece of advice for new partners, for new law school graduates as well. There are so, so many opportunities that come with the privilege of being partnered at a law firm, with the privilege of graduating with a law degree. And there are also unfortunate number of really unhappy lawyers that feel like they're kind of stuck. You have to unstick yourself. I've been very lucky and very, very fortunate to be able to have opportunities come my way and I've jumped on them when I can. If you find yourself in a rut, if you don't like what you're doing, please don't keep doing it. If it stops being fun, look for the next thing because there's always going to be a next thing. And that's one of the great, ⁓ you do have to take some risks. ⁓ But I think that you can't just kind of continue in an unhappy place. And to be clear, I was not an unhappy newly-admitted partner. I really liked what I was doing. And I just sort of found additional things and was expanding into those and doing them. But I do know a lot of unhappy lawyers, unhappy newly-admitted partners, if at any point, It's not fun. You really have to reevaluate and stop, right? And find the next thing, because there's just, there too many opportunities and too much, ⁓ you ⁓ know, too many great things you can do with this privilege that it'd be a real shame to waste it if you're not enjoying what you're doing.

Khurram Naik: That sounds like pretty powerful advice, Lewis. Sounds like pretty helpful advice. There's many more questions I can ask you. there's a lot. All of what you just said, there's two questions at least that come to mind. But hopefully they'll be around too, we'll see.

Louis Tompros: Call me back anytime. has been really great. It's been really fun to chat with you.