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50-50 Federal Circuit?

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Well, that didn’t take long. As we noted in January, although the Federal Circuit had no vacancies during President Trump’s term, several judges were eligible or soon-to-be-eligible to create a vacancy for President Biden (see There’s a New President. How could that Affect Practice in the Circuit?).

We are Morrison Foerster — a global firm of exceptional credentials. Our clients include some of the largest financial institutions, investment banks, and Fortune 100, technology, and life sciences companies. Our lawyers are committed to achieving innovative and business-minded results for our clients, while preserving the differences that make us stronger.Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Prior results do not guarantee a similar outcome.

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50-50 Federal Circuit?

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Deanne Maynard, co-chair of Morrison Foerster’s Appellate and Supreme Court practice, is widely recognized as one of the nation’s leading appellate advocates. She has argued 14 cases before the United States Supreme Court and 75 times in appellate courts across the country.In ranking Deanne in Band 1, Chambers USA reports that she is described as a “magnificent and top-notch lawyer” who is “wicked smart.” She is “extremely thoughtful, even-keeled and has a wonderful presence in the courtroom." Legal 500 calls Deanne “one of the finest advocates in the Supreme Court bar,” remarking that “if she is on your team, great. If she’s on the other side, be ready.”Deanne’s winning Supreme Court arguments involve a wide range of issues and industries, including life sciences (Sandoz v. Amgen), intellectual property (MedImmune v. Genentech), antitrust (Pacific Bell v. linkLine), financial services (Ransom v. FIA Card Services), and bankruptcy (RadLAX v. Amalgamated Bank). In Sandoz v. Amgen, the Supreme Court ruled for her client in a closely watched case involving the Biologics Price Competition and Innovation Act, which provides an approval path for biosimilars. Law360 named Deanne to its exclusive list of <a href="http://media2.mofo.com/documents/171212-mvp-deanne-maynard.pdf">Appellate MVPs</a> for this “big victory,” dubbing her a “Legal Lion” three separate times for her work on appeals in this case. LMG Life Sciences also named Deanne <a href="https://www.mofo.com/resources/news/190920-deanne-maynard-appellate-litigator-of-the-year.html">Appellate Litigator of the Year</a>.Deanne argues complex, high stakes cases in courts of appeals nationwide. Clients turn to Deanne for crisp, clear briefs and exceptional oral advocacy. Her appellate wins run a gamut of issues from arbitration to antitrust, class actions to contracts, copyright to Commerce Clause, infringement to invalidity, and securities law to statutory interpretation. Clients praise her as “an incredible oral advocate, very prepared and formidable” (Chambers USA), and “a tireless advocate with sterling client skills” (Legal 500).Deanne has particular experience in the Federal and Ninth Circuits. She has argued more than 40 appeals in the Federal Circuit, including wins for both patentees and defendants on a wide range of technologies. Chambers USA ranked Deanne in Band 1 for Intellectual Property Appeals, describing her as “renowned for her track record in bet-the-company disputes.” She also serves as Chair of the Federal Circuit’s Advisory Council, which is a conduit between the Court and the public. In the Ninth Circuit, her many wins include a decision from the en banc Court holding large parts of a California statute unconstitutional as well as a panel decision vacating a $60 million jury verdict.Deanne is annually recommended as a leading lawyer by Chambers USA, Chambers Global, Legal 500 US, and Best Lawyers in America. She is President of the American Academy of Appellate Lawyers, an invitation-only organization recognizing distinguished appellate lawyers. Deanne also serves on the Board of Trustees of the U.S. Supreme Court Historical Society and is a Master in, and Past President of, the Coke Appellate Inn of Court.Deanne is a leader within Morrison Foerster as well, chairing its partner compensation committee and serving on the firm’s leadership team.Before joining the firm, Deanne served as an Assistant to the Solicitor General at the U.S. Department of Justice for five years. She previously was a partner at another major law firm.After law school, Deanne clerked two terms on the United States Supreme Court, one for Justice Stephen Breyer and another for Justice Lewis Powell (Ret.) and Justice John Paul Stevens. Before that, Deanne clerked two years for Judge Stanley Harris on the U.S. District Court for the District of Columbia.Deanne graduated magna cum laude from Harvard Law School, where she was an editor of the Harvard Law Review. She earned a B.A. in English, with distinction, from the University of Virginia.<h4 dir="ltr">Supreme Court Arguments</h4><ul dir="ltr"><li>Sandoz v. Amgen <a href="/resources/video-audio/170426-sandoz-v-amgen" target="_self">(audio recording)</a> Involving the Supreme Court’s first foray into the Biologics Price Competition and Innovation Act</li><li>RadLAX v. Amalgamated Bank <a href="/resources/video-audio/120423-radlax-v-amalgamated-bank" target="_self">(audio recording)</a> Whether a debtor can sell a secured asset free and clear without permitting the lienholder to credit-bid</li><li>Pacific Bell v. linkLine <a href="/resources/video-audio/081208-pacific-bell-v-linkline" target="_self">(audio recording)</a> Whether Section 2 of the Sherman Antitrust Act permits a price squeeze claim in the absence of a duty to deal</li><li>MedImmune v. Genentech <a href="/resources/video-audio/061004-medimmune-v-genentech" target="_self">(audio recording)</a> Whether a patent licensee must breach a license agreement before seeking a declaration of patent invalidity</li><li>Ransom v. FIA Card Services <a href="/resources/video-audio/101004-ransom-v-fia-card-services" target="_self">(audio recording)</a> Involving when a debtor without lease payments may take a car-ownership deduction</li><li>EC Term of Years Trust v. U.S. Whether the federal tax code relegates a trust to a wrongful levy action as its exclusive remedy</li><li>Marshall v. Marshall Involving the scope of the probate exception to federal jurisdiction</li><li>U.S. v. Olson Involving the federal government’s sovereign immunity under the Federal Tort Claims Act</li><li>Wilkinson v. Austin Whether the procedures governing placement of prisoners in supermax prison satisfied due process</li><li>Greenlaw v. U.S. Involving the power of the court of appeals in the absence of a cross-appeal</li><li>Dean v. U.S. Whether the accidental discharge of a firearm during a robbery results in a mandatory minimum prison term</li><li>Carcieri v. Salazar Involving the Secretary of the Interior’s authority to take land into trust for Indians</li><li>Boulware v. U.S. Whether a profitless corporation’s diversion of funds to a shareholder was nontaxable</li><li dir="ltr">Watson v. U.S. Whether trading drugs for a firearm was “using” a firearm “during and in relation” to a drug trafficking crime</li></ul><h4 dir="ltr">Representative Appellate Arguments</h4><ul dir="ltr"><li>In re Cirba (Fed. Cir.) <a href="/resources/video-audio/210903-in-re-cirba" target="_self">(audio recording)</a> Successfully defeated attempt to revive a jury’s patent infringement verdict against VMware</li><li>Phigenix v. Genentech (Fed. Cir.) <a href="/resources/video-audio/170426-phigenix-v-genentech" target="_self">(audio recording)</a> Secured noninfringement judgment for Genentech</li><li>Zabriskie v. Fannie Mae  (9th Cir.) <a href="/resources/video-audio/181018-zabriskie-v-fannie-mae" target="_self">(video)</a> Won reversal for Fannie Mae of a Fair Credit Reporting Act judgment</li><li>Washington University v. Wisconsin Alumni Research Foundation (3d Cir.) <a href="/resources/video-audio/161108-washington-university-v-wisconsin-alumni" target="_self">(audio recording)</a> Obtained reversal for Washington University in suit for royalties due under contract with WARF</li><li>Nevro v. Boston Scientific (Fed. Cir.) <a href="/resources/video-audio/191202-nevro-v-boston-scientific" target="_self">(audio recording)</a> Won reversal of district court judgment of invalidity for indefiniteness</li><li>National Business Aviation Assoc. v. Huerta (D.C. Cir.) <a href="/resources/video-audio/180514-aviation-v-huerta" target="_self">(audio recording)</a> Successfully defended the City of Santa Monica against a challenge to its settlement with the FAA about its municipal airport</li><li>C.R. Bard v. Angiodynamics (Fed. Cir.) <a href="/resources/video-audio/200601-cr-bard-v-angiodynamics" target="_self">(audio recording)</a> Won reversal of district court judgment of noninfringement, no willfulness, and invalidity, reviving client’s infringement case on three patents</li><li>Flores v. UPS & Pocino Foods v. UPS (Consolidated) (9th Cir.) <a href="/resources/video-audio/190409-flores-v-ups" target="_self">(video)</a> Secured judgment for UPS on two putative RICO and breach-of-contract class actions about its Next Day Air services</li><li>Residential Capital v. Federal Housing Finance Agency (2d Cir.) Successfully obtained a remand in a case stemming from the ResCap bankruptcy</li><li>BASF v. Johnson Matthey (Fed. Cir.) <a href="/resources/video-audio/171005-basf-argument" target="_self">(audio recording)</a> Won reversal of an invalidity ruling against patentee BASF, reviving its patent claims</li><li>Holl v. U.S. District Court (9th Cir.) <a href="/resources/video-audio/190419-holl-v-us-district-court" target="_self">(video)</a> Defeated a mandamus petition against UPS, successfully defending its arbitration provision containing a class-action waiver</li><li>Interactive Digital Software Association v. St. Louis County, Missouri (8th Cir.) Successfully argued a First Amendment challenge to an ordinance regulating video games</li><li>In Re: Tremont Securities Law (2d Cir.) Secured dismissal for a major accounting firm of a putative class action regarding a Madoff-related fund</li><li>Estate of Graham v. Sotheby’s (9th Cir.) (en banc) <a href="/resources/video-audio/141216-estate-of-graham-v-sothebys" target="_self">(audio recording)</a> Won invalidation under the Commerce Clause of parts of a California artist resale royalty law</li><li>In re ATM Fee Antitrust Litigation (9th Cir.) <a href="/resources/video-audio/111206-atm-fee-antitrust-litigation" target="_self">(audio recording)</a> Prevailed in a putative nationwide antitrust class action against one of the largest U.S. ATM networks</li><li>Augme Technologies v. Yahoo! (Fed. Cir.) <a href="/resources/video-audio/131205-augme-technologies-v-yahoo" target="_self">(audio recording)</a> Secured a noninfringement judgment for Yahoo! in a suit involving Internet display advertising</li><li>Lower Elwha Klallam Indian Tribe v. Lummi Nation (9th Cir.) <a href="/resources/video-audio/170830-lummi-nation-argument" target="_self">(video)</a> Won a reversal for the Lummi Nation, reclaiming its historic treaty rights</li><li>Warsaw Orthopedic v. NuVasive (Fed. Cir.) <a href="/resources/video-audio/141201-warsaw-orthopedic-v-nuvasive" target="_self">(audio recording)</a> Obtained vacatur of a jury’s $101 million patent damages award</li><li>Momenta v. Amphastar (Fed. Cir.) <a href="/resources/video-audio/150504-momenta-v-amphastar" target="_self">(audio recording)</a> Successfully argued for a patentee that conduct was unprotected by the Hatch-Waxman Act safe harbor</li><li dir="ltr">Neurovision Medical Products v. NuVasive (9th Cir.) <a href="/resources/video-audio/120605-neurovision-medical-products-v-nuvasive" target="_self">(audio recording)</a> Obtained vacatur of a jury’s $60 million trademark verdict</li></ul>

Deanne E. Maynard

Partner

Seth Lloyd, a member of Morrison Foerster’s Appellate and Supreme Court practice, has been counsel in more than a hundred appeals in federal and state courts nationwide. Seth has presented oral arguments in the U.S. Courts of Appeals for the D.C. Circuit, the Seventh Circuit, the Ninth Circuit, and the Federal Circuit, as well as in the New Jersey Appellate Division.Seth has particular experience in patent appeals before the Federal Circuit. He has authored successful briefs for both patentees and defendants on a wide range of technologies, from medical devices to pharmaceuticals to computer hardware and software. His practice includes appeals from district courts, the Patent Trial and Appeal Board, and the International Trade Commission. Seth also has argued five times in the Federal Circuit. His winning arguments include a successful reversal of three PTAB decisions in a consolidated appeal for a computer memory designer. Seth is co-chair of the Federal Circuit Bar Association’s Administrative Law & Regulatory Committee. And he is an Editor of Morrison Foerster’s <a href="https://federalcircuitry.mofo.com/" target="_blank">Federal Circuitry</a> blog, which takes a data-driven approach to analyzing the Federal Circuit and its decisions.Seth regularly practices in the United States Supreme Court. He has drafted petitions and amicus briefs at the certiorari stage, as well as party and amicus briefs at the merits stage. Seth also moots members of the bar for Supreme Court arguments through the Georgetown Supreme Court Institute and is a member of the Edward Coke Appellate Inn of Court.Seth’s clients and peers recognize his expertise. Legal 500 named Seth a Key Lawyer; Super Lawyers called him a Rising Star; and Best Lawyers in America added him to its Ones to Watch list, all for appellate practice. Before joining Morrison Foerster, Seth served as a law clerk for Judge Richard G. Taranto of the Federal Circuit. He earned his J.D. from Stanford Law School, where he worked on two successful certiorari petitions and one successful merits case through Stanford’s Supreme Court Litigation Clinic.Seth also holds a Ph.D. and M.S. in electrical engineering from Stanford University. During his graduate studies, he received the National Defense Science and Engineering Graduate Fellowship, published 10 peer-reviewed articles, and co-invented the subject matter of five U.S. patents.<h4>Appellate Arguments</h4><ul><li><a href="/resources/video-audio/220114-renesas-electronics-v-broadcom-corporation" target="_self">Renesas Electronics Corp. v. Broadcom Corp.</a> (00:10) (Fed. Cir.) Argued and won affirmance for inter partes review petitioner in challenge to electronic device claims</li><li><a href="/resources/video-audio/170609-netlist-inc-v-diablo-technologies" target="_self">Netlist, Inc. v. Diablo Technologies, Inc.</a> (02:56) (Fed. Cir.) Argued and won reversal for owner of computer memory patents in appeals from three consolidated inter partes reviews</li><li><a href="/resources/video-audio/200610-google-llc-v-netlist-inc" target="_self">Google LLC v. Netlist, Inc.</a> (13:15) (Fed. Cir.) Argued and won affirmance for owner of computer memory patents in consolidated appeals from decade-long reexamination</li><li><a href="/resources/video-audio/220309-apple-inc-v-mph-technologies" target="_self">Apple Inc. v. MPH Technologies Oy</a> (00:16) (Fed. Cir.) Argued for inter partes review petitioner in challenge to computer security claims</li><li><a href="/resources/video-audio/180808-netlist-inc-v-sandisk-llc" target="_self">Netlist, Inc. v. SanDisk LLC</a> (01:53) (Fed. Cir.) Argued for patent owner in consolidated appeals raising APA challenges to inter partes review decisions</li><li><a href="/resources/video-audio/201026-nicole-k-v-stigdon" target="_self">Nicole K. v. Stigdon</a> (00:16) (7th Cir.) Argued for children in Indiana foster care raising constitutional due process claims</li><li><a href="/resources/video-audio/200306-strike-3-holdings" target="_self">Strike 3 Holdings, LLC v. Doe</a> (21:40) (D.C. Cir.) Argued as court-appointed amicus defending an order refusing a subpoena to unmask an internet subscriber’s identity</li><li><a href="/resources/video-audio/161118-harris-v-mangum" target="_self">Harris v. Mangum</a> (00:02) (9th Cir.) Argued as court-appointed amicus defending indigent prisoner’s right to a guardian ad litem</li></ul><h4>Additional Representative Matters</h4><ul><li>SNIPR Technologies Ltd. v. Rockefeller University (Fed. Cir.) Revived five SNIPR patents related to CRISPR technology after prevailing in a precedential decision that reversed the Patent Office’s interpretation of the America Invents Act (AIA), under which post-AIA patents could be subjected to pre-AIA interference proceedings</li><li>Broadcom Corp. v. International Trade Commission (Fed. Cir.) Successfully defended ITC’s determination of no Section 337 violation in case involving multiple patents directed to system-on-chip technology for automobile infotainment systems</li><li>Chugai Pharmaceutical Co. v. Alexion Pharmaceuticals (D. Del.) Successfully beat back defendant’s push for summary judgment of invalidity for lack of written description on pharmaceutical genus claims, ultimately helping to secure a $775 million settlement for the patent owner</li><li>C.R. Bard Inc. v. AngioDynamics, Inc. (Fed. Cir.) Secured reversal of district court judgment of non-infringement, no willfulness, and invalidity, reviving Bard’s infringement case on three patents</li><li>Washington University v. Wisconsin Alumni Research Foundation (3d Cir.) Successfully defended trial victory for breach of patent licensing agreement and further won judgment entitling Washington University to prejudgment interest</li><li>Nevro Corp. v. Boston Scientific Corp. (Fed. Cir.) Secured reversal for Nevro of district court judgment of invalidity for indefiniteness</li><li>Federal National Mortgage Association v. Zabriskie (9th Cir.) Won reversal for Fannie Mae of a Fair Credit Reporting Act judgment</li><li>Henson v. Santander Consumer USA Inc. (S. Ct.) Represented U.S. Chamber of Commerce and others as amici supporting respondent in unanimous affirmance of Fair Debt Collection Act decision</li><li>BASF Corp. v. Johnson Matthey Inc. (Fed. Cir.) Won reversal of an invalidity ruling against patentee BASF, reviving its patent claims</li><li>C.R. Bard Inc. v. Medline Industries, Inc. (Fed. Cir.) Won vacatur for petitioner of three Patent Trial and Appeal Board decisions on obviousness for patents to medical device technology</li><li>Altayyar v. Etsy, Inc. (2d Cir.) Secured dismissal of securities fraud case for failure to adequately plead falsity</li><li>Bridge & Post, Inc. v. Verizon Communications, Inc. (Fed. Cir.) Secured dismissal because asserted patents claimed unpatentable subject matter</li><li>Sam Francis Foundation v. Christie’s, Inc. (S. Ct.) Successfully preserved Sotheby’s en banc win at the Ninth Circuit based on the dormant Commerce Clause</li><li>Phigenix, Inc. v. Genentech, Inc. (Fed. Cir.) Secured total victory of noninfringement for Genentech</li><li>Deason v. Fujifilm Holdings Corp. (New York Appellate Division, First Department) Secured reversal in major shareholder challenge to corporate acquisition</li><li>V.L. v. E.L. (S. Ct.) As counsel for children’s guardian ad litem, secured reversal of Alabama Supreme Court’s refusal to grant full faith and credit to Georgia judgment recognizing lesbian mother as legal parent</li></ul>

Seth Lloyd

Appellate + Supreme Court