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Fundamentals of Patent Litigation 2011

Speaker(s): Brandon Baum, Elizabeth Day, Gary M. Hnath, Ian N. Feinberg, Madison C. Jellins
Recorded on: Jun. 10, 2011
PLI Program #: 28438

Elizabeth Day is a trial lawyer who concentrates her practice on patent infringement litigation and other intellectual property-related lawsuits. Ms. Day has represented plaintiffs and defendants in numerous patent infringement matters pending throughout the United States, including cases in Texas, Wisconsin, Delaware, California and the ITC. Ms. Day was named one of the top 75 female litigators in the state of California in 2006.

Ms. Day has tried patent cases involving a variety of technologies, including computers, peripherals, handsets, ecommerce, and the Internet. Ms. Day has tried a multitude of patent infringement cases to jury verdicts totaling over $25 million in recovery. She has served as lead lawyer on dozens of patent litigation matters on behalf of both plaintiffs and defendants, handling Markman hearings, motions for summary judgment, trials and appeals. She also has significant experience litigating on behalf of Defendants, including running joint defense groups. In addition to her more than a dozen trials, Ms. Day has primary responsibility for handling the damages aspects of the cases on which she works.

Significant Engagements

In the Matter of Certain Electronic Portable Devices and Related Software-337 TA-721
Representing Apple in a patent infringement action commenced by HTC in the ITC. The asserted patents relate to dialer functionality and power management in handset devices.

Saxon Innovations v. Palm et. al.
Represented Palm in four patent infringement actions pending in the US District Court for the Eastern District of Texas as well as the ITC. The asserted patents relate to cellular phone applications processors and wireless controllers.

Samsung v. Quanta Computer et. al.
Obtained jury verdict of $9 million in a patent infringement action pending in the US District Court for the Northern District of California. The asserted patent concerns the implementation of hotkey functionality in notebook computers.

CollegeNET, Inc. v. XAP Corporation
Obtained jury verdict of $8.5 million in a patent infringement and Lanham Act action pending in the US District Court for the District of Oregon. The asserted patents relate to technology for applying to college over the Internet.

IMX, Inc. v. LendingTree, LLC
Obtained jury verdict of willful infringement and damages totaling over $10 million in a patent infringement action pending in the US District Court for the District of Delaware. The asserted patent relates to technology for applying for loans over the Internet.

 University of California, Davis, School of Law, J.D.
 University of California at Davis, M.B.A.
 Graduate School of Management
 Dartmouth College, B.A. cum laude


Gary Hnath is a Partner in Mayer Brown’s Washington DC office, where he focuses his practice on intellectual property litigation and counseling, including disputes involving patent, trademark and copyright infringement and trade secrets. He has participated in numerous District Court cases, several Federal Circuit appeals, and over 40 investigations at the International Trade Commission under Section 337 of the Tariff Act of 1930, one of the principal forums for litigating intellectual property disputes involving imported articles.

A leading authority in the area of Section 337 litigation, Gary is a former president of the ITC Trial Lawyers Association and Chair of the ITC Committee of the American Intellectual Property Law Association. He has lectured throughout the United States and Asia and written widely on the subject of Section 337 investigations. While working at the ITC, Gary was lead counsel for the government in Certain Concealed Cabinet Hinges, which raised issues of first impression as to what constitutes a “domestic industry” under the 1988 amendments to Section 337. His position on this issue was adopted by the Administrative Law Judge and the Commission in a decision which is still cited as one of the leading cases in the field.

Gary has successfully represented both patent holders and companies accused of infringement in cases involving a variety of technologies, including high-intensity sweeteners; coenzyme Q10; toner cartridges; sleep apnea products; laminated packaging; linear actuators; medical devices for vein harvesting; personal computers; acetic acid; wireless local area networks; ground fault circuit interrupters; agricultural vehicles; multiplexers used in space satellites; gear couplings used in industrial machinery; and neodymium-iron-boron magnets, to name just a few. He was lead counsel for the first company in China to win a Section 337 case after trial at the ITC. His recent notable victories for clients at the ITC include the successful defense of two manufacturers in China accused of infringing four process patents for the manufacture of sucralose. In this high profile case, the Commission found all of the asserted patents not infringed, and one of the patents invalid, after a hotly contested trial.

Gary has also represented numerous clients on a pro bono basis. For example, in a case for a Washington DC public school bus aide fired from her job as a result of an erroneous drug test, Gary was successful in obtaining a ruling that his client’s constitutional rights had been violated and an order reinstating her with back pay. The court’s decision in that case was cited for several years as one of the leading decisions in the US discussing the constitutionality of random drug testing.

In addition to private practice, Gary has served as law clerk to the Honorable Walter E. Black Jr., US District Court for the District of Maryland and a senior trial attorney with the ITC’s Office of Unfair Import Investigations.

Madison C. Jellins has more than 20 years of experience in patent litigation and strategic counseling for biopharmaceutical and medical device clients and has served as lead counsel in patent cases in district court and at the Federal Circuit. She is a registered patent attorney and has particular expertise in patent and regulatory strategy, including the FDA approval process for small molecules, biologics, biosimilars, and combination products; Hatch-Waxman litigation strategy; and the new biosimilars pathway. Madison also handles appellate matters before the Federal Circuit and frequently lectures on Federal Circuit case law developments and patent/regulatory issues. She clerked for the Hon. Helen W. Nies, former Chief Judge of the Federal Circuit. She is a Lecturer at Santa Clara University School of Law and was recognized as a Northern California Super Lawyer in IP Litigation in 2009-2012. Madison was formerly a partner in the IP Litigation Group of Alston & Bird LLP and a partner in the Patent Litigation Group at Townsend LLP.

Educational Summary

  • J.D., magna cum laude, University of San Francisco
  • Four American Jurisprudence Awards
  • Comment of the Year Award
  • Senior Member, Law Review
  • M.S. Biological Sciences (cancer biology), Stanford University
  • B.A. Zoology (pre-med), University of Washington


  • California State Bar
  • U.S. Patent and Trademark Office
  • U.S. Supreme Court
  • U.S. Court of Appeals for the Federal Circuit
  • U.S. Court of Appeals for the Ninth Circuit
  • All California Courts

Brandon Baum has served as trial counsel in patent cases, patent licensing programs, mediations, and arbitrations, and has first-chaired numerous jury trials. He has litigated disputes involving such technologies as telecommunication devices (hardware and software), thin films, computer methods and software, microprocessors, smartcards, business methods, Java™, medical devices, cryptography and GPS devices. He also has extensive experience litigating business disputes, and has tried cases in federal, state and even bankruptcy courts. Brandon is an AV-rated attorney, a Northern California “Super Lawyer,” and is listed in Marquis Who’s Who.

For the past 10 years, Brandon has served as an Adjunct Professor of Law, teaching a course in patent litigation techniques at U.C. Hastings. He has also taught at Stanford’s Law and Business Schools, and Santa Clara Law School. He frequently serves as a court-appointed ENE and Mediator for IP cases, and is a regular contributor to PLI’s Patent Law Practice Center. Before moving to Silicon Valley, Brandon was a prosecutor specializing in homicide and gang violence cases. Away from the office, Brandon enjoys spending time with his three children, playing tennis badly and cracking wise.


J.D. 1985, University of California Hastings B.A 1982, University of California Berkeley

Ian Feinberg has more than 30 years of experience focused on patent, copyright, trademark and trade secret litigation with deep expertise in licensing, unfair competition and antitrust , primarily focused in the software and semiconductor industries. He has represented such famous companies as Adobe , Monster Cable, Sony, SWIFT, Trident, Visa, and Vodafone in patent litigation, as well as much smaller companies.

Significant Engagements

IpVenture, Inc. v. Sony Corporation., et al., United States District Court – Delaware
Represented Sony Corporation and two other Sony entities in an action alleging infringement of more than 100 claims in four patents involving power and thermal management for notebook computers that allegedly read on all notebook computers using Microsoft Windows operating system. Result: favorable confidential settlement.

Technology Patents LLC v. Deutsche Telekom AG, et al., United States District Court-Maryland
Represented approximately 15 Vodafone entities in a patent infringement action against some 131 defendants alleging infringement of patents on international text and SMS messaging. Result: dismissal on the ground of lack of personal jurisdiction based on oral argument made on behalf of all (115) foreign mobile telephone carriers.

Cryptography Research, Inc. v. Visa International Service Association, United States District Court – San Jose
Represented Visa in an action alleging infringement of more than 100 claims in eight-patents in addition to a Sherman Act Section 1 conspiracy claim and a Sherman Act Section 2 Walker Process monopolization counterclaim involving patents on countermeasures to cryptographic attacks on smart card. Result: favorable confidential settlement.

Agfa Monotype Corporation and International Typeface Corporation v. Adobe Systems Incorporated, United States District Court – Chicago
Represented Adobe in a case asserting that a “circumvention device” in violation of the Digital Millennium Copyright Act. Result: summary judgment for Adobe.

FreecycleSunnyvale v. The Freecycle Network, United States District Court – San Francisco and Ninth Circuit
Obtained declaratory judgment in district court, affirmed by the Ninth Circuit, that “freecycle” and related terms were nakedly licensed to client, FreecycleSunnyvale, by The Freecycle Network and thus abandoned as trademarks. In addition, obtained reversal in the Ninth Circuit of a preliminary injunction issued in a separate case brought by The Freecycle Network enjoining Mr. Oey from “tending to disparage” the validity of  the alleged “freecycle” trademarks and from encouraging others to use the word “freecycle” in its generic sense, on the ground, among others, that the there is no cognizable claim for trademark disparagement under the Lanham Act.