Federal Circuit and Other IP Appeals

Our litigators offer intellectual property clients exceptional appellate advocacy and analysis that begins at the trial level and continues all the way to the United States Supreme Court. Our appellate attorneys often work with trial teams to lay the groundwork for future appeals.  In 2009 and 2010, The National Law Journal named the firm's appellate practice to its "Appellate Hot List," spotlighting noteworthy copyright and patent cases.

When we take on an appeal, we consider ourselves an extension of the team that has been living with the case since its inception.  Whether the case was tried by Winston trial lawyers or by another law firm, we work closely with trial counsel to learn the case and to determine which issues present the greatest potential risk and reward on appeal. We take care to draft briefs that tell the client's story, while still focusing the court's attention on the particular issues that best serve our client's interests in the case.  Attorneys in our group are also experienced oral advocates.  Collectively, we have appeared in all of the U.S. Courts of Appeals and in a wide range of state intermediate courts and courts of last resort.

Our award-winning appellate capabilities include substantial experience before the Federal Circuit on patent appeals.  Our patent litigators have appeared before the Federal Circuit in nearly 50 patent appeals.  In addition, five of the firm's lawyers clerked on the Federal Circuit or its predecessor court.

Recent victories in the Federal Circuit have included our invalidation of the patent on Prozac, which was followed by a $35 billion change in Eli Lilly's market capitalization in one day.  We have made law on, among other legal issues, means-plus-function claiming, inherency, claim construction, preliminary injunctions, preemption of state law claims, inequitable conduct, willfulness, indefiniteness, Federal Circuit jurisdiction, Hatch-Waxman, and double patenting.  Additionally, we have developed significant experience in pursuing and defending emergency and expedited appeals from district court patent judgments.

In non-patent IP areas, we have made law on, among other legal issues, secondary and tertiary copyright and trademark liability; file sharing and new media; copyright fair use; and safe harbors under the Digital Millennium Copyright Act.