About Our Appellate Practice
Clients regularly depend on Fenwick attorneys to handle their most important appeals in federal and state courts around the country, and before the United States Supreme Court. We have been counsel of record on more than 225 appeals in the last decade alone, winning high-profile decisions in diverse industries and in legal disciplines, including intellectual property, securities, commercial and Internet law.
- Our clients trust us with high-value matters and novel questions. Wins for Amazon, UCB, Cray, Giganews and GE InVision represent just some of our recent major successes.
- We have particularly deep experience in patent appeals in the Federal Circuit, including a strong record of success for leading branded pharmaceutical and technology clients in cases often worth billions of dollars in annual revenue.
- Because appeals are likely in high-stakes cases, our appellate attorneys work with clients and trial teams at all stages of litigation. Clients also engage us in the first instance as appellate counsel.
- Accord Healthcare and Intas Pharmaceuticals v. UCB et al., and Mylan Pharmaceuticals et al. v. UCB et al.: Represented UCB and others in opposing two petitions seeking Supreme Court review of a Federal Circuit decision upholding a patent covering UCB’s best-selling and groundbreaking anti-epilepsy drug VIMPAT®. The Supreme Court denied both petitions in February 2019, preserving our client’s Federal Circuit victory.
- Virginia Innovation Services v. Amazon: Obtained a complete victory for Amazon in two separate appeals, as the Federal Circuit upheld the lower court’s decisions invalidating nine patents as claiming patent ineligible computer-implemented abstract ideas and ruling that Amazon’s Dash Button and Fire TV products did not infringe two other patents.
- UCB et al. v. Watson Laboratories et al.: Won affirmance from the Federal Circuit of judgments holding the crucial patent covering UCB’s NEUPRO® anti-Parkinson’s drug valid and infringed, under the doctrine of equivalents, by generic manufacturers Actavis and Mylan.
- In re Cray: Established the leading Federal Circuit precedent for what counts as a “regular and established place of business” under the patent venue statute. Led to a venue transfer and ultimate win for our client Cray, and changed the legal landscape for venue contests, a staple of patent litigation.
- Athena Diagnostics v. Mayo Collaborative Services: After a split three-judge Federal Circuit panel ruled, in a highly publicized decision criticized by the industry, academia, the Commissioner of the USPTO and several U.S. Senators, that Athena’s patent for a novel method of diagnosing serious neurotransmission disorders was patent ineligible, we secured an unprecedented decision in a petition for rehearing en banc; although the Federal Circuit denied the petition, the vote was 7-5, with all 12 active judges agreeing that our client’s patent should be eligible for protection, and urging the United States Supreme Court to use this case to clarify eligibility standards for all diagnostic patents. We are now co-counsel on a petition for certiorari filed in the Supreme Court in October 2019.
- Delphix v. Embarcadero: Prevailed for client Delphix in Ninth Circuit appeal involving jurisdictional issues (personal and subject matter) in a trademark case.
- Perfect 10 v. Giganews et al.: Represented Giganews in a high-profile copyright/Internet secondary liability case. The Ninth Circuit affirmed summary judgment for our client, and the Supreme Court denied Perfect 10’s petition for certiorari.
- Dennis Huston v. Nimble Storage: Secured Ninth Circuit’s affirmance of the dismissal of a securities class action against client Nimble Storage.
- LendingTree v. Zillow: Won reversal from Federal Circuit of the district court’s denial of our motion for summary judgment that LendingTree’s patents were invalid for claiming only an abstract idea.
- Kathleen Haskins v. Symantec: Raising the bar for consumer fraud claims, we obtained Ninth Circuit affirmance of a California District Court’s dismissal of a class action false advertisement suit against Symantec, which had been accused by the class of hiding a software security vulnerability.
- Loos v. Immersion: On behalf of Immersion, won affirmance from the Ninth Circuit of dismissal of a securities fraud class action, in a decision that addressed a matter of first impression regarding loss causation that has become one of the most-cited rulings on that topic.
- Glazer v. Magistri: Represented GE InVision in the Ninth Circuit, which affirmed dismissal in our client’s favor of a securities class action. The decision has become one of the foremost authorities for several critical areas of securities law, including scienter pleading requirements under the Private Securities Litigation Reform Act.
Representative Amicus Work
- City and County of San Francisco v. Donald J. Trump et al.: Filed an amicus brief with the Ninth Circuit on behalf of 49 technology companies asking it to affirm a California District Court’s injunction against the Trump administration’s “sanctuary cities” executive order in a case brought by San Francisco and Santa Clara County. The Court upheld the injunction.
- Garcia v. Google: Filed an amicus brief with the Ninth Circuit on behalf of 11 technology companies regarding the proper scope of an injunction against an online service provider for hosting user generated content that allegedly infringed copyrights.
- Altera v. Commissioner: In a high-stakes Ninth Circuit tax case, Fenwick represents amicus curiae Xilinx, which argues that the Ninth Circuit should rehear the case en banc, reverse the panel decision and invalidate a Treasury Regulation that would greatly increase the costs borne by U.S. technology companies to partner with their foreign subsidiaries in developing intellectual property. We argue that the Ninth Circuit’s decision in Xilinx v. Commissioner, an earlier Fenwick win on behalf of the same client, provides the relevant authority.