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David L. Hayes

Partner, Intellectual Property  

San Francisco 415.875.2411

Overview

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David Hayes concentrates on intellectual property counseling, litigation and audits, and technology licensing, distribution and transfer. He is a registered patent attorney with the U.S. Patent and Trademark Office.

David counsels a wide range of technology companies on establishing and maintaining procedures to protect the company's intellectual property through copyrights, patents, trade secrets, mask works and trademarks, and on avoiding infringing the rights of others. He represents numerous clients on high-profile, complex technology transactions, including patent license transactions and acquisition strategies for both component technologies and turnkey systems. He counsels numerous clients on complex open source issues. He is a nationally recognized expert on copyright issues related to the internet and digital media. He has served as counsel in a number of precedent setting software copyright infringement cases, including Apple v. Microsoft, Lotus Development Corp. v. Borland International, and A&M Records v. Napster. He has also worked on numerous patent infringement cases.

Over the past decade, David has been recognized more than 160 times as one of the top practitioners in various fields of intellectual property law and strategy by leading publications and ranking organizations. Among those, he has been included in Chambers USA every year since 2002, in Chambers Global since 2008, in Northern California Super Lawyers since 2004 and has been ranked by Intellectual Asset Management for each of the last three years as one of the world’s leading patent and IP strategy attorneys. Best Lawyers named him the 2019 Lawyer of the Year for patent law in San Francisco, and in 2019, he was named among the top 30 lawyers in the U.S. for information technology by Euromoney Expert Guides. David has also been included in Managing Intellectual Property's list of IP Stars for the past five years.

David has published dozens of articles and given many speeches throughout the United States and in Japan on various intellectual property topics. He has testified before Congress and federal agencies concerning intellectual property issues. David serves on the advisory board of The Berkeley Center for Law & Technology, the program committee for the USC Intellectual Property Law Institute, as well as the editorial boards of The Computer and Internet Lawyer, Cyberspace Lawyer, The Intellectual Property Strategist, The Journal of Internet Law and Intellectual Property Counselor.

While attending Harvard Law School, David was an editor of the Harvard Law Review. After law school, he served as a law clerk to the Honorable John Minor Wisdom of the U.S. Court of Appeals for the Fifth Circuit. Prior to attending law school David worked as an electrical engineer in Silicon Valley.

Publications

  • “Advanced Copyright Issues on the Internet,” March 2018 (previous versions published in The Computer Law & Security Report, Part 1, November/December 2000, at 363, Part 2, January/February 2001, at 3, Part 3, March/April 2001, at 75, Part 4, May/June 2001, at 147, Part 5, July/August 2001 at 219, Part 6, September/October 2001 at 291, Part 7, November/December 2001 at 363, Part 8, January/February 2002 at 3; and 7 Tex. Intell. Prop. L. J. 1, Fall 1998)
  • “First Sales in Electronic Commerce,” CIPerati, Vol. 1, Issue 2, June 2004
  • “Copyright Liability of Online Service Providers,” The Computer & Internet Lawyer, Oct.-Dec. 2002 (3-part article)
  • “Patenting Business Methods,” The Computer Lawyer, October 1999
  • “Copyright in the Digital Electronic Environment,” December 1997 (co-author)
  • “Advanced Issues Related to Outsourcing Agreements,” Corporate Counsel's Guide to Outsourcing, Business Laws, July 1997
  • “The Coming Tidal Wave of Copyright Issues on the Internet,” 1997 Intellectual Property Law Update, J. Wiley & Sons, 1997 (also published in The Journal of Internet Law, Vol. 1, No. 1., July 1997)
  • “A Comprehensive Current Analysis of Software 'Look and Feel' Protection,” 1997 Intellectual Property Update, J. Wiley & Sons, 1997
  • “Performing an Intellectual Property Audit of Copyrights,” The Corporate Analyst, Business Laws, November 1996
  • “The Enforceability of Shrinkwrap License Agreements On-Line and Off-Line,” Cyberspace Lawyer, Glasser LegalWorks, Part 1, October 1996, Part 2, November 1996
  • “Legal Issues Relating to the Migration of Data Processing Operations, Information Technology Outsourcing Transactions - Process, Strategies and Contracts,” Appendix 4.5, J. Wiley & Sons, 1996, at 350
  • “Conducting the Intellectual Property Audit for Copyright,” Conducting Intellectual Property Audits, Chapter 4, Practising Law Institute, 1996
  • “A Comprehensive Current Analysis of Software 'Look and Feel' Protection,” The Computer Law and Security Report; Part I, December 1995 at 304; Part II, February 1996 at 14; Part III, April 1996 at 66; Part IV, June 1996 at 134; Part V, July 1996 at 21; and Part VI, October 1996 at 270
  • “Intel and AMD Settle Out of Court Over MPU Dispute,” Nikkei Electronics, No. 643, April 9, 1995 at 135 (published in Japanese)
  • “The Copyrightability Of Software Menu Command Hierarchies: The Lotus v. Borland Cases,” Mealey's Litigation Reports on Intellectual Property, June 5, 1995
  • “The Final Word on Apple v. Microsoft,” The Computer Lawyer, at 1, May 1995
  • “U.S. Copyright Protection of Nonliteral Program Elements,” The International Computer Lawyer April 1995, at 14
  • “Conducting the Intellectual Property Audit for Copyright,” Conducting Intellectual Property Audits, Chapter 8, Practicing Law Institute, 1995
  • “Performing An Intellectual Property Audit of Copyrights,” Mealey's Litigation Reports on Intellectual Property, January 13, 1995
  • “What is that Patent, Trademark, or Copyright Worth?,” CHEMTECH, American Chemical Society, November 1994, at 16 (co-author)
  • “The Importance of Stac Electronics v. Microsoft to Software Patent and Trade Secret Protection,” Mealey's Litigation Reports on Intellectual Property, Sept. 28, 1994, at 19
  • “Look & Feel--The Borland Case What's Up?, New Matter,” Vol. 19, No. 1, Spring 1994, at 32 (publication of The Intellectual Property Section, State Bar of California)
  • Apple v. Microsoft Under a Microscope,” The Computer Lawyer, February 1994, at 1
  • “The Legality of Disassembly of Computer Programs,” Computer/Law Journal, Vol. XII, No. 1, October 1993, at 1
  • Apple v. Microsoft Under a Microscope,” Mealey's Litigation Reports on Intellectual Property, October 27, 1993, at 21
  • “What's Left of 'Look and Feel' Protections for Software?,” The San Francisco Daily Journal, July 28, 1993
  • “What's Left of 'Look and Feel': A Current Analysis,” The Computer Lawyer, May - July 1993 (parts I, II, III)
  • “Shrinkwrap License Agreements: New Light On A Vexing Problem,” Vol. 15, No. 3, University of California Hastings College of Law Communications and Entertainment Law Journal, Spring 1993, at 653
  • “Harbingers of Change in United States Computer Software Copyright Protection,” Mitteilungen der deutschen Patentanwalte, March 1993, at 81 (published in German and English) (co-author)
  • “The Legality Of Disassembly Of Computer Programs,” Mealey's Litigation Reports on Intellectual Property, November 13, 1992
  • “A Hard And Fast Rule For 'Look And Feel': Consult Counsel,” Mealey's Litigation Reports on Intellectual Property, October 21, 1992
  • “Shrinkwrap License Agreements: New Light On A Vexing Problem,” The Computer Lawyer, September, 1992, at 1
  • “Shrinkwrap License Agreements: New Light On A Vexing Problem,” The Computer Law Association Bulletin, Vol. 7, No. 2, 1992, at 5
  • “Acquiring and Protecting Technology: The Intellectual Property Audit,” International Computer Law Adviser, February and March 1992, both at 4
  • “Problems and Pitfalls Presented by U.S. Customs Enforcement Procedures to Importers of Legitimate Computer Programs,” The Computer Lawyer, January 1992, at 1
  • “Problems and Pitfalls Presented by U.S. Customs Enforcement Procedures to Importers of Legitimate Computer Programs,” The Licensing Journal, January 1992, at 10
  • “Acquiring and Protecting Technology: The Intellectual Property Audit,” The Corporate Analyst, November 1991, at 88
  • “Software Protection: Copyright Protection,” Chemical Design Automation News, June 1991 at 8