Erica R. Sutter

Offices

New York

Silicon Valley

Practices

Industries

Education & Admissions

J.D., Santa Clara University School of Law

Master of Animal Science, North Carolina State University

B.S., Biological Sciences - Molecular Cellular and Developmental
North Carolina State University

B.A., International Studies - International Relations
North Carolina State University

Admitted to practice in California, New York and the District of Columbia

Admitted to practice before the U.S. Supreme Court, the U.S. Courts of Appeal for the Second, Ninth and Federal Circuits, and U.S. District Courts for the Central, Eastern, Northern and Southern Districts of California and the District of Columbia

Registered to practice before the U.S. Patent and Trademark Office

Erica Sutter is an experienced patent and antitrust attorney with a passion for learning about her clients’ technologies and industries. As a litigator, she has substantial experience in all phases of trial litigation, as well as at the appellate level. Beyond litigation, Erica also regularly advises clients on general antitrust and patent issues. Recent areas of focus include pharmaceuticals, medical devices, design tools, health insurance, and start-ups.

Erica’s antitrust litigation experience includes representing clients in merger litigation, class action price-fixing litigation, and antitrust challenges arising out of settlement agreements from prior pharmaceutical patent cases. She also counsels clients throughout US and cross-border transactions, including in connection with the US Hart-Scott-Rodino Act and international filings. Erica has also served as an advocate for clients who are third parties in civil antitrust litigation and in FTC “Part 3” administrative proceedings.

Erica’s patent litigation experience focuses on pharmaceutical patents, particularly in “Hatch-Waxman” litigation, and involves representing clients both in district court litigation and proceedings before the United States Patent Trial and Appeal Board.

By maintaining an active antitrust and patent practice, Erica is well positioned to advise clients on the issues that occur at the cross-roads of these two areas of law.

Prior to joining Fenwick & West, Erica was an associate in the global competition and antitrust group of a leading international law firm. She also previously worked at bio-fabrication startup Modern Meadow, where her responsibilities included liaising with outside counsel on the company’s patent and trademark applications. As an undergraduate, Erica was also involved in research relating to stem cells, including induced pluripotent stem cells, at North Carolina State University College of Veterinary Medicine and at the University College London.

While maintaining her full-time practice, Erica most recently obtained her Masters in Animal Science from North Carolina State University. During that time, to better serve her clients, she specifically sought out courses such as: Regulation of Metabolism, Global Regulatory Affairs for Medical Products, Neurobiology, and Cancer Biology.

During law school, she was an editor for both the Santa Clara Law Review and the Santa Clara High Technology Journal.

Advising Chinook Therapeutics in its successful $3.5B acquisition by Novartis.
Representation of cloud-based mortgage capital markets company as a third party in FTC “Part 3” administrative proceeding and related district court litigation.
Representation of large music industry company against antitrust claims under both federal and state law. The Court dismissed all claims against the client.
Successful defense of convenience store retail analytics company against federal and state antitrust claims—including monopolization, conspiracy to restrain trade, and exclusive dealing allegations—as well as other state law claims pertaining to allegations of unfair competition. Briefed and argued motion to dismiss resulting in dismissal of all claims against client. (19-cv-00455 (D. Conn.)) On appeal, plaintiff ultimately agreed to withdraw its appeal and dismiss all claims against client, with prejudice, prior to any appellate briefing.
Represented one of the nation’s largest health insurers in its defense against the U.S. Department of Justice’s lawsuit to block the then-largest merger ever in the health insurance industry. Erica was a member of the trial team defending the insurance company in the District Court and was also a member of the team representing the company on its expedited appeal to the D.C. Circuit and subsequent petition for writ of certiorari to the U.S. Supreme Court.
Member of team representing a global pharmaceutical company in an antitrust action involving “reverse-payment” claims pertaining to an earlier patent litigation settlement.
Member of team representing a Fortune 100 manufacturer in multidistrict litigation involving alleged price-fixing and output restrictions.

Patent Experience

Representation of UCB Inc. and UCB Biopharma Sprl in district court litigation and before the Patent Trial and Appeal Board relating to its patent concerning the drug Xyzal^®. UCB successfully obtained a stipulation of infringement in the district court and the later PTAB ruled in favor of UCB on all grounds. Subsequently, Apotex voluntarily dismissed its appeal before the Federal Circuit and stipulated to a permanent injunction in the district court.
Representing Novo Nordisk Inc. and Novo Nordisk A/S in multiple patent litigations regarding Victoza®, Saxenda®, and Ozempic® and their FlexPen® and FlexTouch® injection devices.
Representation of Pharmacosmos A/S and Pharmacosmos Therapeutics in patent litigation relating to treatment of iron deficiency anemia.

*Includes experience from a previous firm

Antitrust Experience

Advising Chinook Therapeutics in its successful $3.5B acquisition by Novartis.
Representation of cloud-based mortgage capital markets company as a third party in FTC “Part 3” administrative proceeding and related district court litigation.
Representation of large music industry company against antitrust claims under both federal and state law. The Court dismissed all claims against the client.
Successful defense of convenience store retail analytics company against federal and state antitrust claims—including monopolization, conspiracy to restrain trade, and exclusive dealing allegations—as well as other state law claims pertaining to allegations of unfair competition. Briefed and argued motion to dismiss resulting in dismissal of all claims against client. (19-cv-00455 (D. Conn.)) On appeal, plaintiff ultimately agreed to withdraw its appeal and dismiss all claims against client, with prejudice, prior to any appellate briefing.
Represented one of the nation’s largest health insurers in its defense against the U.S. Department of Justice’s lawsuit to block the then-largest merger ever in the health insurance industry. Erica was a member of the trial team defending the insurance company in the District Court and was also a member of the team representing the company on its expedited appeal to the D.C. Circuit and subsequent petition for writ of certiorari to the U.S. Supreme Court.
Member of team representing a global pharmaceutical company in an antitrust action involving “reverse-payment” claims pertaining to an earlier patent litigation settlement.
Member of team representing a Fortune 100 manufacturer in multidistrict litigation involving alleged price-fixing and output restrictions.

Patent Experience

Representation of UCB Inc. and UCB Biopharma Sprl in district court litigation and before the Patent Trial and Appeal Board relating to its patent concerning the drug Xyzal^®. UCB successfully obtained a stipulation of infringement in the district court and the later PTAB ruled in favor of UCB on all grounds. Subsequently, Apotex voluntarily dismissed its appeal before the Federal Circuit and stipulated to a permanent injunction in the district court.
Representing Novo Nordisk Inc. and Novo Nordisk A/S in multiple patent litigations regarding Victoza®, Saxenda®, and Ozempic® and their FlexPen® and FlexTouch® injection devices.
Representation of Pharmacosmos A/S and Pharmacosmos Therapeutics in patent litigation relating to treatment of iron deficiency anemia.

*Includes experience from a previous firm

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Erica R. Sutter

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