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Attorney Fees and Claim Construction in Patent Litigation: More Federal Circuit Deference to the District Courts?

Product Code - LGN278
Speaker(s): Brian H. Pandya, Wiley Rein LLP; Donald R. Dunner, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP; Rudolph A. Telscher, Harness Dickey & Pierce, PLC
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Few issues cause greater tension between district courts and the Federal Circuit than standards of appellate review, and in particular, the deference due to district court findings. On one hand, the Federal Circuit is tasked with promoting uniformity in patent law and possesses unparalleled expertise and experience resolving complex patent law issues. On the other hand, district courts often devote disproportionate time and resources to patent cases and have a front seat view to the entire litigation.

Standards of appellate review were recently considered by the U.S. Supreme Court in Highmark v. Allcare in the context of attorney fees awards. Standards of review will again take center stage this fall when the Court hears Teva v. Sandoz, this time in the context of claim construction. And an en banc Federal Circuit addressed district court deference in Lighting Ballast v. Philips.

What can we learn from these cases? Is there a trend toward greater district court deference in patent cases? The faculty presenting this program will explore these questions in detail.

Educational Objectives:

• Gain an understanding of what deference the Federal Circuit has historically given district courts on attorney fees and whether such standards have changed over the years.

• Hear a discussion regarding whether the Supreme Court is poised to give district courts more deference in claim construction.

• Learn what issues will still be reviewed de novo if more deference is given on claim construction.

Who would benefit most from attending this program?

Intellectual property practitioners, particularly those involved with patent litigation.

Program Level: Intermediate to Advanced.
Prerequisite: A knowledge of recent and pending patent litigation.
CPE Delivery Method: Group Internet-Based Live
Field of Study: Specialized Knowledge and Applications
Recommended CPE Credit: 1.5 credits
Anticipated CLE Credit: 1.5 credits (may vary based on from which jurisdiction requested)

For additional information, please see the “CE Credit” tab.

Brian H. Pandya, Wiley Rein LLP; Donald R. Dunner, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP; Rudolph A. Telscher, Harness Dickey & Pierce, PLC

Brian H. Pandya, Wiley Rein LLP
Brian Pandya is a partner at Wiley Rein LLP in Washington, D.C., where his practice focuses on patent litigation and counseling. Mr. Pandya was counsel of record for the Blue Cross Blue Shield Association in Highmark v. Allcare and has represented clients in all major intellectual property litigation venues, including the Federal Circuit, district courts in Virginia, Texas, and Delaware, and the Patent Trial and Appeal Board.

A former clerk for the Honorable Leonard Davis, Eastern District of Texas, Mr. Pandya earned a J.D., cum laude, from the University of Michigan Law School, where he was an articles editor for the Michigan Telecommunications and Technology Law Review, and a B.S. in mechanical engineering from The Pennsylvania State University. He is admitted to practice in the District of Columbia and Virginia as well as before the U.S. Supreme Court; the U.S. Courts of Appeals for the Fourth, Ninth and Federal Circuits; the U.S. District Courts for the District of Columbia, Eastern District of Texas and Eastern District of Virginia; the U.S. Court of Federal Claims; the U.S. Patent and Trademark Office; the District of Columbia Court of Appeals; and the Virginia Supreme Court.

Donald R. Dunner, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
Donald Dunner has worked in all phases of patent law, including prosecution, licensing, litigation, validity and infringement studies, and counseling. He has vast technical experience in chemical engineering, chemistry, biotechnology, and pharmaceuticals.

Mr. Dunner has litigated numerous cases in the federal district courts and is best known for appellate practice before the U.S. Court of Appeals for the Federal Circuit and its predecessor court, the U.S. Court of Customs and Patent Appeals. Mr. Dunner served as chairman of the Advisory Committee to the U.S. Court of Appeals for the Federal Circuit for the first ten years of the Court's existence and participated in the drafting of the Court's rules.

Mr. Dunner earned a J.D. from Georgetown University Law Center and a B.S. in Chemical Engineering from Purdue University. He is admitted to practice in the District of Columbia and before the U.S. Court of Appeals, Federal Circuit, the U.S. Supreme Court, and the U.S. Patent and Trademark Office.

Rudolph A. Telscher, Harness Dickey & Pierce, PLC
Rudy Telscher has litigated for 25 years a wide array of intellectual property disputes in district and appellate courts throughout the United States. He was lead counsel in Octane Fitness, LLC v. Icon Health & Fitness, Inc., where he handled oral argument before the U.S. Supreme Court. His team successfully defended the patent infringement case from the district court up to the Supreme Court. The case significantly altered the standard for awarding attorney fees under 35 U.S.C. § 285. Mr. Telscher also served as lead counsel in CDM Fantasy Sports v. Major League Baseball, in which his team made new law in turning back Major League Baseball’s attempts to monopolize the $1.5 billion per year fantasy sports industry. Mr. Telscher has successfully tried to verdict cases in the patent, copyright, trademark and trade secret areas.

Mr. Telscher earned a J.D., with high distinction, from the University of Iowa and a B.S. in Electrical Engineering, with honors, from the University of Missouri. He is admitted to practice in Illinois and Missouri as well as before the U.S. Supreme Court, the U.S. Court of Appeals for the Federal Circuit, the U.S. Patent and Trademark Office, and the International Trade Commission.

This program’s CLE-credit eligibility varies by state. Bloomberg BNA is an accredited provider in the states of New York*, California, Pennsylvania, Texas and Virginia, and most other jurisdictions grant CLE credit on a per-program basis. At this time, Bloomberg BNA does not apply directly to the states of Florida, Rhode Island, Montana, Delaware and Hawaii although credit is usually available for attorneys who wish to apply individually. Additionally, the following states currently do not grant credit for Bloomberg BNA OnDemand programming: Arkansas, Ohio, Nebraska and Delaware. All requests are subject to approval once the live webinar has taken place or the customer has viewed the OnDemand version. Please allow up to four to eight weeks for CLE processing. Contact the Bloomberg BNA accreditations desk if you have specific questions that have not been addressed.

*Bloomberg BNA is an accredited provider in New York for experienced attorneys only.

Hardship Policy
For information regarding Bloomberg BNA’s Hardship Policy, please visit the Continuing Education Information page.

Individual programs, subjects, and formats may not receive credit in some states and there may be specific rules regarding who may earn credit or the maximum number of credit hours that may be earned with specific formats. For specific questions, contact your state MCLE regulatory entity for specific questions about your MCLE rules or visit the American Bar Association’s website for general information on accreditation.

If you have further questions regarding a specific state or how to file for CE credit, please contact Bloomberg BNA customer service at 800-372-1033 and ask to speak to the CLE Accreditation Coordinator or send an email to