Donald Dunner of Finnegan Henderson (Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.)
There’s a reason Donald Dunner is known as the dean of the patent bar. He’s argued more than 160 cases at the U.S. Court of Appeals for the Federal Circuit—a record—and the Federal Circuit’s chief judge has dubbed him a “superstar advocate.” But at 82, the veteran IP litigator and name partner at Finnegan, Henderson, Farabow, Garrett & Dunner has still never argued a case before the U.S. Supreme Court.
That is, until now. “There’s a first time for everything,” Dunner told the Litigation Daily.
On Feb. 26, Dunner will stand before the nine justices to argue for Allcare in Highmark Inc. v. Allcare Health Management Systems Inc.. The case is being closely watched, since it could determine how hard it is for patent plaintiffs to appeal when they’re ordered to pay attorney fees for bringing meritless claims. (More technically, the case examines whether appellate courts should defer to a district judge’s finding that a case is objectively baseless and thus “exceptional” under Section 285 of the patent statute.)
Other cases that Dunner handled before the Federal Circuit have wound up before the high court, but in those instances a Supreme Court specialist stepped in for the big argument. This time, Allcare chose to stick with Dunner. And if he’s nervous, he isn’t letting on.
“I don’t remember a time when I was ever nervous before an argument,” Dunner said. He concedes that the Supreme Court is a more magisterial setting than other venues, and he compares arguing there to performing on Broadway instead of in a local theater. But, he said, “I always find if you’re really prepared, any butterflies you may have had will disappear as soon as you get up before the court.”
Dunner said he generally spends about 100 hours preparing for a 15-minute argument before the Federal Circuit. The Supreme Court allots 30 minutes, so he expects to spend at least 100 hours preparing in Highmark, and possibly more. “The time needed to prepare depends on the case,” he said. “But I always spend as much time as I need to completely master the issues so I will be able to answer any questions that could be asked.”
Although Dunner prevailed before the Federal Circuit in Highmark, he said he won’t be taking the same approach when arguing before the Supreme Court. The Federal Circuit concerns itself with many issues, whereas the high court focuses on a very specific question, he said. “And the Supreme Court is not just there to correct errors, but to decide law that has far-reaching consequences,” Dunner added.
Many attorneys might find that prospect daunting, but Dunner is taking it all in stride. Earlier this month he was at a legal conference in Vail, Colorado, moderating a discussion between judges and patent attorneys. And when the moderating was done, the octogenarian went skiing. “I may be 82, but my mother lived to 100,” he said.
Nor has Dunner halted his Federal Circuit practice while he prepares for his Supreme Court debut. On Feb. 6—less than three weeks before he appears before the high court—he will argue yet another Federal Circuit appeal, in a battle over wind turbine technology.
“When I’m on overload I become very efficient,” Dunner said. “I make every minute count.”