Fish & Richardson lets its trial attorneys argue appeals as long as Fish’s appellate team remains in charge of crafting rock-solid legal arguments in the briefs. "We call it our ‘no egos’ approach to appeals," said John Dragseth, the appellate group co-chairman. The briefing, he said, is "clearly the most important part of the appeal."
Last June, Dragseth and partner Frank Porcelli secured a U.S. Court of Appeals for the Federal Circuit ruling vacating a $371.2 million damages award against a client in Bard Peripheral Vascular Inc. v. W.L. Gore & Associates Inc. Based on briefs that argued for a rehearing, the full Federal Circuit overturned a three-judge panel. The new ruling said that a judge must find an objective showing of recklessness to establish willful patent infringement.
"It’s got application to pretty much any patent case out there," said Dragseth, who was on the team representing Gore, the manufacturer whose products include Gore-Tex fabric. The District of Arizona is weighing that willfulness standard, with Fish handling the remand. "They’ve helped us to narrow the issues and focus our efforts," said Cathy Testa, in-house counsel at Gore. The long-running dispute is over Bard’s patented technology for prosthetic vascular grafts that bypass or replace blood vessels. Bard claims $206.5 million is at stake, including attorney fees and interest. The Federal Circuit overturned the trial judge’s doubling of enhanced damages.
In April, Fish convinced the Second Circuit to uphold a decision by a federal judge in New York not to enjoin Aereo Inc. technology that allows users to watch television over the Internet. Broadcasters teamed up to stop Aereo in the closely watched copyright fight that spawned the joint ruling in WNET v. Aereo and American Broadcasting Cos. v. Aereo.
In another key affirmance, Fish prevailed in a multidefendant case for dozens of retailers, banks and airlines at the Federal Circuit in January. In Parallel Networks LLC v. Abercrombie & Fitch Co., Fish convinced the court to uphold a trial court’s noninfringement ruling concerning Parallel’s patent for a client-server communication system for use on handheld and credit-card-sized computers.
Although the September 2011 patent reforms sharply curbed multidefendant cases, courts can still combine cases against different defendants when deciding key pretrial issues, said partner Michael McKeon. "[In] appeals, you have to understand what resonates with the judges," he said. "You’ve really got to step up and be brave and drop [arguments] that aren’t going to carry the day so you can focus on ones that matter."