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Appellate

Our Experience

Brinks Gilson & Lione has a proven record of successes in appellate matters involving patents, trademarks, copyrights, trade secrets, and other related issues, such as antitrust claims. We litigate intellectual property appeals stemming from a wide array of district court and agency determinations, including:

  • Final decisions of the U.S. District Courts;
  • Exclusion orders issued by the U.S. International Trade Commission;
  • Post-grant Patent Office proceedings under the America Invents Act of 2012;
  • Orders on motions for preliminary injunctions; and
  • Ex parte Patent Office proceedings. 

Our practice includes a strong specialty before the U.S. Court of Appeals for the Federal Circuit, which holds exclusive jurisdiction over appeals arising under the Patent Act and appeals from the U.S. Patent and Trademark Office. Our attorneys are not only known for their outstanding appellate advocacy, but also for the firm’s long and continuing tradition of leadership in the Federal Circuit Bar Association and Federal Circuit Historical Society.

The late Robert L. Harmon, a Brinks shareholder until his retirement from the practice of law, literally “wrote the book” on the Federal Circuit’s patent decisions with his treatise Patents and the Federal Circuit.  Bob passed on the care of his beloved treatise to Brinks, where it is maintained currently by shareholders Cynthia Homan and Laura Lydigsen, with the assistance of several Brinks associates.  Brinks attorneys update the treatise annually to reflect all new Federal Circuit and Supreme Court patent decisions. 

Brinks attorneys also appear regularly before the regional circuit courts of appeals, in trademark, copyright, and other non-patent, intellectual property cases. 

Brinks attorneys are not strangers at the Supreme Court of the United States either.  We are well-versed in Supreme Court practice, including proceedings related to Calls for the Views of the Solicitor General (“CVSG”), merits briefs, petitions for writs of certiorari, oppositions to petitions, and amicus briefs.  

Our Strategy and Successes

Our appellate strategy draws on both our appellate specialists and our deep bench of attorneys having the scientific, engineering, and technical acumen our clients’ cases demand.  The results show.  Some of our attorneys’ representative successes include:

  • SoftView LLC v. Kyocera Corp., 2015 WL 509660 (Fed. Cir. 2015).  The Federal Circuit issued a per curiam affirmance in an early appeal from the Patent Trial and Appeal Board, which held all challenged claims of a patent directed to a zoomable web browser for smartphones unpatentable.
  • Robert Bosch, LLC v. Snap-on Inc. et al., 769 F.3d 1094 (Fed. Cir. 2014).  The Federal Circuit ruled in favor of Brinks’ client that the asserted claims of a patent for an automotive diagnostic tester should be interpreted as means-plus-function claims and were invalid as indefinite for lack of structure in the specification.
  • Georgia-Pacific Consumer Products LP v. Kimberly-Clark Corp., 647 F.3d 723 (7th Cir. 2011).  The Seventh Circuit affirmed a summary judgment ruling in favor of Brinks’ client that the asserted trade dress was functional and not entitled to trademark protection.
  • Abbott Laboratories v. Sandoz Inc., 566 F.3d 1282 (Fed. Cir. 2009) (en banc in part).  Brinks successfully defended the denial of a preliminary injunction relating to a pharmaceutical product.  The Federal Circuit ruled en banc that process limitations in product-by-process claims are limiting for purposes of assessing infringement.  

Our appellate specialists also recognize that sometimes the greatest success is one achieved outside the courtroom with minimal expense to the client.  We often assist clients in achieving favorable settlement outcomes during the appellate process. 

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