Eric M. Acker

Eric M. Acker

Partner

San Diego, (858) 720-5109

Education

University of California, Berkeley (B.S., 1985)
University of Michigan Law School (J.D., 1988)

Practices

Bar Admissions

California
District of Columbia

Clerkships

Hon. D. Lowell Jensen, U.S. District Court, N.D. California (1988-1989)

Eric Acker is a partner and trial lawyer in the firm’s Intellectual Property Group. Mr. Acker has tried more than 50 trials (including more than 47 jury trials) in courtrooms across the country.

Mr. Acker’s recent trials have involved a variety of technologies and significant legal issues. In the high-profile SCO v. Novell case, following a three-week trial, the jury affirmed our client Novell’s ownership of the copyrights to the UNIX software code and rejected SCO’s claim for damages of $100 to $200 million. Mr. Acker received a 2012 California Lawyer Attorney of the Year Award (CLAY Award) for the defense of Novell. Mr. Acker also successfully defended generic drug manufacturer Sandoz in trials under the Hatch-Waxman Act involving the MS drug Copaxone and the ICU sedative Precedex. During the past several years, Mr. Acker has tried patent cases in numerous jurisdictions, including New York, New Jersey, Utah, California, Texas, Massachusetts, and Nevada.

In addition to winning the CLAY award in 2012, Mr. Acker was named the 2014 Best Lawyers in America San Diego Litigation Patent Lawyer of the Year. He is also recommended as a leading lawyer by Best Lawyers in America 2009–2017 and Legal 500 US 2013, and was named a “California Local Litigation Star” in the 2013–2016 issues of Benchmark Litigation.

Prior to joining Morrison & Foerster in 1999, Mr. Acker spent ten years as a federal prosecutor in the U.S. Attorney’s Offices for the District of Columbia and the Southern District of California. He is a past Lawyer Representative to the Ninth Circuit Judicial Conference for the Southern District of California, and also a Master in the Louis Welsh Inn of Court, San Diego Chapter.

Mr. Acker was Phi Beta Kappa at the University of California at Berkeley where he received his B.S. He received his J.D., cum laude, from the University of Michigan Law School, where he served as an Associate Editor of the Michigan Law Review and was elected to the Order of the Coif.

Spectrum Pharmaceuticals, Inc. v. Sandoz Inc.
(District of Nevada). Represented Sandoz in Hatch-Waxman litigation regarding the company’s application to sell an injectable oncology drug. After a five-day trial, the district court found clear and convincing evidence of obviousness and invalidated the asserted claims.
Allergan v. Sandoz
(Eastern District of Texas). Represented the manufacturer of a generic version of the glaucoma treatment Lumigan.01 in a week-long trial under the Hatch-Waxman Act.
Takeda v. Impax
(Northern District of California). Represented the manufacturer of a generic version of the acid reflux disease treatment Prevacid in a week-long trial under the Hatch-Waxman Act.
Nikon Metrology v. Faro Technologies
(District of Massachusetts). Represented Nikon Metrology in a two-week jury trial in a patent case involving laser line scanner and articulated arm metrology solutions.
Hospira v. Sandoz
(District of New Jersey). Represented the manufacturer of a generic version of the ICU sedative Precedex in a trial under the Hatch-Waxman Act. After an eight-day trial, the court invalidated a method of use patent covering the use of the compound for ICU sedation.
Teva v. Sandoz
(Southern District of New York). Successfully represented the manufacturer of a generic version of Copaxone in a three-week trial under the Hatch-Waxman Act. On appeal, the Federal Circuit invalidated the patent with the longest remaining term, allowing the client to launch its generic product more than one year earlier than expected.
Fractus v. Kyocera
(Eastern District of Texas). Reached a favorable settlement on behalf of Kyocera (minutes before opening statements in a jury trial), after Kyocera was accused of infringement by a Spanish internal cell phone antenna developer.
SCO v. Novell
(District of Utah). Prevailed in three-week jury trial when a jury determined that Novell owned the copyrights to the UNIX computer operating system. In an earlier trial, won multimillion-dollar award for Novell based on its right to royalty payments from UNIX software licenses granted by SCO.
Maxwell Technologies, Inc. v. NessCap Co., Ltd.
(Southern District of California). Won preliminary injunction motion and favorable settlement when Maxwell asserted its ultracapacitor patent portfolio against NessCap, a Korean competitor.
Veeco Instruments, Inc. v. Asylum Research Corp.
(Central District of California). Successfully represented Veeco in a patent infringement action involving atomic force microscope technology. The matter settled on the eve of trial with a cross-license in which Asylum admitted the validity of Veeco’s patents and agreed to an upfront fee and continuing royalty payments.
McKesson v. Bridge Medical, Inc.
(Eastern District of California). Successfully defended Bridge Medical in a patent action involving the use of barcode technology in bedside patient identification and verification systems. Following trial, the court found the asserted patent unenforceable based on inequitable conduct during its prosecution.
Nichols Institute Diagnostics, Inc. v. Scantibodies Clinical Laboratory, Inc.
(Southern District of California). Defended Scantibodies, a San Diego-based manufacturer of diagnostic parathyroid hormone assays, through trial in a patent infringement action brought by Nichols Institute Diagnostics. Following a two-week bench trial and three-week jury trial, the patent was invalidated on three grounds (best mode, enablement, and written description), and one of the Scantibodies products was found not to infringe. On appeal following the district court's ruling on post-trial motions, the Court of Appeals for the Federal Circuit held that the asserted patent is invalid.
Pharmingen v. Fujisawa Pharmaceutical Co., Ltd., et al.
(San Diego Superior Court). Defended Fujisawa in trade secret litigation involving the licensing of clones from Japanese developers for the production of antibodies to be used as research tools.
Wellstat Therapeutics Corp. v. The Regents of the University of California
(San Diego Superior Court). Favorably settled patent, licensing and trade secret litigation against The Regents of the University of California, involving the use of a uridine prodrug to treat various metabolic disorders. The matter settled on the eve of trial with no payment made by The Regents.
Oakley v. Target Corporation
(Southern District of California). Achieved favorable pre-trial settlement on behalf of Target in defense of allegations of infringement of Oakley's design patent for sports sunglasses.
Caliper Technologies Corp. v. Aclara Biosciences
(Northern District of California). Represented a biotechnology company in state and federal actions in California related to microfluidic technology. The matter was settled prior to trial.
Spectrum Pharmaceuticals, Inc. v. Sandoz Inc.
(District of Nevada). Represented Sandoz in Hatch-Waxman litigation regarding the company’s application to sell an injectable oncology drug. After a five-day trial, the district court found clear and convincing evidence of obviousness and invalidated the asserted claims.
Allergan v. Sandoz
(Eastern District of Texas). Represented the manufacturer of a generic version of the glaucoma treatment Lumigan.01 in a week-long trial under the Hatch-Waxman Act.
Takeda v. Impax
(Northern District of California). Represented the manufacturer of a generic version of the acid reflux disease treatment Prevacid in a week-long trial under the Hatch-Waxman Act.
Nikon Metrology v. Faro Technologies
(District of Massachusetts). Represented Nikon Metrology in a two-week jury trial in a patent case involving laser line scanner and articulated arm metrology solutions.
Hospira v. Sandoz
(District of New Jersey). Represented the manufacturer of a generic version of the ICU sedative Precedex in a trial under the Hatch-Waxman Act. After an eight-day trial, the court invalidated a method of use patent covering the use of the compound for ICU sedation.
Teva v. Sandoz
(Southern District of New York). Successfully represented the manufacturer of a generic version of Copaxone in a three-week trial under the Hatch-Waxman Act. On appeal, the Federal Circuit invalidated the patent with the longest remaining term, allowing the client to launch its generic product more than one year earlier than expected.
Fractus v. Kyocera
(Eastern District of Texas). Reached a favorable settlement on behalf of Kyocera (minutes before opening statements in a jury trial), after Kyocera was accused of infringement by a Spanish internal cell phone antenna developer.
SCO v. Novell
(District of Utah). Prevailed in three-week jury trial when a jury determined that Novell owned the copyrights to the UNIX computer operating system. In an earlier trial, won multimillion-dollar award for Novell based on its right to royalty payments from UNIX software licenses granted by SCO.
Maxwell Technologies, Inc. v. NessCap Co., Ltd.
(Southern District of California). Won preliminary injunction motion and favorable settlement when Maxwell asserted its ultracapacitor patent portfolio against NessCap, a Korean competitor.
Veeco Instruments, Inc. v. Asylum Research Corp.
(Central District of California). Successfully represented Veeco in a patent infringement action involving atomic force microscope technology. The matter settled on the eve of trial with a cross-license in which Asylum admitted the validity of Veeco’s patents and agreed to an upfront fee and continuing royalty payments.
McKesson v. Bridge Medical, Inc.
(Eastern District of California). Successfully defended Bridge Medical in a patent action involving the use of barcode technology in bedside patient identification and verification systems. Following trial, the court found the asserted patent unenforceable based on inequitable conduct during its prosecution.
Nichols Institute Diagnostics, Inc. v. Scantibodies Clinical Laboratory, Inc.
(Southern District of California). Defended Scantibodies, a San Diego-based manufacturer of diagnostic parathyroid hormone assays, through trial in a patent infringement action brought by Nichols Institute Diagnostics. Following a two-week bench trial and three-week jury trial, the patent was invalidated on three grounds (best mode, enablement, and written description), and one of the Scantibodies products was found not to infringe. On appeal following the district court's ruling on post-trial motions, the Court of Appeals for the Federal Circuit held that the asserted patent is invalid.
Pharmingen v. Fujisawa Pharmaceutical Co., Ltd., et al.
(San Diego Superior Court). Defended Fujisawa in trade secret litigation involving the licensing of clones from Japanese developers for the production of antibodies to be used as research tools.
Wellstat Therapeutics Corp. v. The Regents of the University of California
(San Diego Superior Court). Favorably settled patent, licensing and trade secret litigation against The Regents of the University of California, involving the use of a uridine prodrug to treat various metabolic disorders. The matter settled on the eve of trial with no payment made by The Regents.
Oakley v. Target Corporation
(Southern District of California). Achieved favorable pre-trial settlement on behalf of Target in defense of allegations of infringement of Oakley's design patent for sports sunglasses.
Caliper Technologies Corp. v. Aclara Biosciences
(Northern District of California). Represented a biotechnology company in state and federal actions in California related to microfluidic technology. The matter was settled prior to trial.

Eric Acker received a 2012 California Lawyer Attorney of the Year Award for his successful defense of Novell in a copyright and licensing jury trial. He also was named the 2014 Best Lawyers in America San Diego Litigation Patent Lawyer of the Year. He is also recommended as a leading lawyer by Best Lawyers in America 2009–2017 and Legal 500 US 2013, and was named a “California Local Litigation Star” in the 2013–2016 issues of Benchmark Litigation.

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