By
Robert Loerzel
The idea of becoming an attorney - let alone an intellectual-property attorney - didn't enter Michael D. Switzer's head when he was growing up in Brattleboro, Vt.
Switzer said he dreamed of playing center field for the Boston Red Sox. And in case that plan didn't work, he was getting good grades in math and science. Switzer, whose father was a math teacher and school principal, began setting his sights on a career in engineering.
Switzer, now a partner in Ulmer & Berne's Chicago office, did play baseball in college, but he never got the call from the Majors. By 1990, when he graduated from Union College in Schenectady, N.Y., with a bachelor's degree in electrical engineering, he was starting to wonder if he really wanted to do that for a living.
"I enjoy the technology and digging into it," he said. "But you can get pigeonholed into being the world expert on a certain electronics part."
Switzer said he dreaded the thought of being stuck in a narrow specialty. He wanted to work in a profession where each day presented different tasks and people to deal with.
"At least in my perception of what a practicing engineer would be, there would not be as much interaction with people," he said.
Switzer made his way to the U.S. Patent and Trademark Office in Washington, D.C., putting his scientific knowledge to use as a patent examiner. As a result of that work, Switzer soon became fascinated with intellectual-property law.
As Switzer talks about the subject now, it's obvious he enjoys explaining the legal principles behind patents, trademarks and copyrights. He reaches for a yellow legal pad and draws circles to represent the "fences" that protect new inventions from patent infringements.
"The whole idea for the patent system is to give an incentive for people to disclose - to the benefit of others - what they're developing," he said. "In exchange, they'll get a limited monopoly for a time period when they can exclude others. Patents give you the right to prevent others from making, using and selling that which you have claimed.
"Let's say two competing scientists are trying to come up with a drug that will cure cancer. Even if they're in separate companies, we want them to be providing information so that everyone can move forward in parallel."
When Switzer first began working as a patent examiner, he handled applications in the area of electrical heating - "anything from electric blankets up to electric blast furnaces for steel plants," he said.
With each application that landed on his desk, Switzer's first task was to understand the technology. Then came the big question: Is this technology actually new?
"You look through prior patents as well as any technical literature, maybe magazine articles, catalogs, etc.," Switzer said. "So if you found something exactly like it . that would not be novel."
And, of course, that would mean a rejection. But it wouldn't necessarily be the end of the story.
"The applicant can come back and say, 'Oh, no, no, no, you misunderstood, Mr. Examiner,'" Switzer said. "They could modify their claims. It's almost a negotiation back and forth."
A slightly different path
Switzer said he learned a lot about patent law from his supervisor, Bruce Reynolds, who asked him rigorous questions about why he had approved or rejected patent applications.
"It was almost a prelude to law school, with the Socratic method," Switzer said. "He would go through point-by-point: 'Why did you write that? What is your support? Why do you believe that? What case law?'"
Reynolds told Switzer he should consider going to law school. And in 1992, Switzer began taking night classes at American University's Washington College of Law while he continued to work full-time as a patent examiner during the day.
That busy schedule forced Switzer to learn what he calls "the triage approach" - a method of studying and working quickly, which still comes in handy in his current work at Ulmer & Berne.
"I did not have an unlimited amount of time to study," Switzer said. "So I would have to condition myself to think: 'Okay, what do I really need to focus on?' That's the way it is in real life. Your clients don't want to pay you to flip every stone."
As he began studying law, Switzer noticed some parallels with engineering. Legal decisions and engineering plans are both constructed out of building blocks. In the law, those building blocks include statutes and court decisions. In engineering, the building blocks are the laws of physics.
But Switzer also noticed that the law isn't always quite as concrete as engineering.
"In engineering, the end answer is either right or wrong," he said. "Either electricity is going to flow over a capacitor or not. The bridge is going to stand up, or it's going to fall."
The right answers were not always so clear-cut in law school, however.
"It's usually competing theories," Switzer said. "If you're the plaintiff or the defendant, you could have equally good arguments. And then it's up to the judge or the jury to figure it out. Coming from an engineering perspective, that was immediately very different."
Up until this point in his life, Switzer had left the U.S. just a couple of times, going only as far as Canada. During his final summer as a law student, Switzer went to Hong Kong for two months, studying intellectual property law in a Syracuse University program.
"That ended up being a key event in my life, for a couple of reasons," Switzer said.
For one thing, Switzer met his future wife, Sandy, who was a Syracuse law student taking the same study-abroad program. For another thing, Switzer enjoyed being immersed in a foreign culture. As Switzer and his fellow American students met with business executives and attorneys from Hong Kong, mainland China and Great Britain, he saw how patents can be a driving force in the global economy.
And so it wasn't too surprising that Switzer jumped at another chance to visit Asia a short time later. As Switzer finished up his law degree, he was working at the Washington office of McDermott Will & Emery. He heard that one of the firm's clients, Hitachi Ltd., was looking for a young lawyer from McDermott to work in Tokyo for two years as an in-house patent counsel for the Japanese company.
Switzer got the job, and it turned out to be an experience that changed his life and his career.
The first surprise that greeted Switzer was the way the furniture was arranged in the Hitachi offices. Looking out across the floor, Switzer found it difficult to figure out the "pecking order."
"In the U.S., it's very easy. You walk in a law firm, and there's a big office in the corner," Switzer said. And whoever has the biggest office is highest in rank.
"Well, in Japan, it's not like that," he said. Only a couple of people had their own offices.
"Everything else was an open bullpen area. Very, very small desks pushed together. If you were Japanese, you would immediately understand that the person at the end of a row is the senior person in this group. The closest person to the door is usually the least senior."
The other Hitachi employees worried about where to put Switzer. Using six-foot-high divi-ders, they'd created a makeshift office for him.
"The second I walked in and saw that, I was very concerned," Switzer said. "I said, 'Hey, is it possible for you to take that down? . I don't want to be separated both physically and culturally from everyone else.'"
After about two weeks of meetings over this perplexing issue, Hitachi gave Switzer a desk at the end of a row - a position that would indicate low seniority. People walking into the office often did a double-take when they saw a young American man sitting there.
Switzer was learning how to speak Japanese, but he wasn't fluent. It helped that the other lawyers knew English. When Hitachi held meetings with business people from other countries, English was usually the common language.
But Switzer did occasionally find himself sitting in a conference room, watching as Hitachi executives spoke Japanese among themselves. Even that turned out to be a valuable learning experience.
"I would really have to focus on body language," he said.
Looking around the room, Switzer would ask himself: "Is this person understanding what they're hearing? Are they happy? Are they upset? Are they in agreement?"
Later, when Switzer spoke with his colleagues about a meeting, he usually found out that his impressions had been correct. Switzer still pays attention to body language when he meets with clients and colleagues.
Switzer said his time in Japan also taught him to speak and write in simple, direct language. He began avoiding idioms, jargon and American pop-culture references that Japanese people might not understand.
Much of his work at Hitachi involved negotiating deals with companies over which patents they would license to each other.
"Each side would pick out patents and say, 'Here's our five top representative patents and why they're very important and you need to license them.' The other side would do the same thing," Switzer said. "Hitachi at that time was a multinational conglomerate that made everything from nuclear-power plants to elevators to train cars to vacuum cleaners. You name it. They were in everything."
Negotiating cross-license deals with other companies was more efficient than filing lawsuits over every patent dispute, Switzer said.
Returning to the U.S.
In 1999, Switzer returned to McDermott Will & Emery, where Hitachi became one of his main clients. Working on the inside of a corporation gave Switzer a better idea of what businesses need from lawyers.
"I like to be viewed as part of the team," he said. "You can come up with the best legal theory. But if the risk parameters don't fit in with what the company wants to do, you aren't really helping the client."
Not all lawyers have that perspective, said Brian E. Ferguson, a partner at Weil, Gotshal & Manges in Washington who worked with Switzer at McDermott.
"Mike picked that up really early in his career," said Ferguson, who has known Switzer since college. "We'd be in a meeting and he would say, 'This is what the client would be looking for in this situation.'"
In 2005, Switzer went back to being an in-house lawyer, serving as the senior IP counsel at Tyco Healthcare Group LP, a Connecticut company that makes medical devices.
And then in 2007, Switzer's wife, who had grown up in Morton Grove, persuaded him to move their family to the Chicago area. Once again, Switzer became a partner at McDermott Will & Emery, but this time, he was in the firm's Chicago office.
Michael and Sandy Switzer live in Highland Park with their three children: Christopher, 8, Alexander, 6, and Lainey, 3.
Sandy Switzer is an intellectual property lawyer, too, but she's devoting her time right now to raising their children.
"She now refers to herself as a 'recovering attorney,'" Michael Switzer said. "She does a lot of work, but not as a lawyer right now."
A lateral move
This April, Switzer moved to Ulmer & Berne, a Cleveland-based firm that hasn't had much presence in Chicago until recently.
"I really enjoy working with a smaller amount of clients," Switzer said, explaining why he left McDermott and joined Ulmer. "At a huge multinational firm, it becomes difficult because of the amount of conflicts. When you have over 1,000 lawyers, all working in different areas, you're going to represent tons and tons and tons of clients. So, on any given matter, there's a reasonable chance that the party on the other side is one of the clients. I was running into a lot of scenarios where various clients wanted me to assist them, but I was precluded because of conflicts."
That problem doesn't come up as often at Ulmer & Berne, which has about 175 attorneys firmwide. Switzer said he also likes being able to provide good service to his clients at lower rates. Ulmer & Berne's overhead costs are lower, partly because the firm doesn't have offices beyond Cleveland, Columbus, Cincinnati and Chicago.
The office, which Ulmer & Berne occupied in April, has around a dozen lawyers now, but there's room for 25 to 30.
"We're actively looking at adding attorneys and potentially practice groups," Switzer said. "Ulmer & Berne is phenomenally well-positioned. It has been very conservative. They haven't had to make any layoffs whatsoever."
Switzer, who chairs Ulmer & Berne's medical device IP practice, was the first intellectual property lawyer in the Chicago office. He admits he was a little worried about joining a smaller firm without a big presence in Chicago or the IP field.
"When you're used to walking around with a very well-known brand and you go to a lesser-known brand, there are some concerns," he said. "But each of the current clients and potential clients I've been talking to are just so excited about the opportunity to get the value. They don't care if we have a London office or four offices in California, or an office in every city with more than 10 Starbucks."
Switzer's clients include some of the companies he had been working with at McDermott, including his former employer Tyco, which is now known as Covidien.
Switzer spends much of his time helping clients decide whether to acquire smaller companies with potentially valuable patents.
Although it's been a long time since Switzer gave up on the idea of a career in engineering, that scientific education still comes in handy.
"When you sit down and go over patents, preparing for a case, . he really is very good at understanding and explaining the underlying technology of the products," said Scott A. Meyers, a partner at Ulmer & Berne's Chicago office.
And that's not Switzer's only strong suit, according to Meyers.
"Watching him manage the personalities of both clients and opposing counsel, you can definitely tell he's got a good feel for people," Meyers said.
"He's a very, very bright guy, and he's intuitive to his clients' needs," said Brent A. Hawkins, a partner who worked with Switzer at McDermott Will & Emery in Chicago.
"Mike's a great lawyer," says his longtime friend and colleague Brian Ferguson. "He's extremely diligent. He's very organized. He'll never let anything drop through the cracks."