Appellate Litigation

Whether defending a favorable judgment or overturning an unfavorable one, Knobbe Martens has the legal and technical experience needed to achieve our clients’ objectives on appeal. The proof is in the results—our attorneys have secured numerous significant appellate victories for clients before the Federal Circuit and other state and federal appellate courts. Our passion for law and technology provides each client with the cutting-edge skill required to achieve a positive result.

Our appellate team includes 10 former Federal Circuit law clerks, including a former associate solicitor of the Patent & Trademark Office. As a result, we understand, from practical and hands-on experience, the key strategies for briefing and arguing even the most sophisticated appellate cases to the court.

After the introduction of post-grant review proceedings, our firm has parlayed its wealth of experience before the Patent and Trademark Office and Federal Circuit to achieve particular success in the appeal of inter partes reviews. Our proven abilities in this specialized discipline allow us to take an integrated approach to appellate practice, which often leads to favorable results for our clients.

Recognizing the importance of pro bono projects, we actively represent U.S. service veterans in appeals to the U.S. Court of Appeals of Veterans Claims. In addition, we have written an array of persuasive amicus briefs to the U.S. Supreme Court, various U.S. courts of appeal and state supreme courts in cases having particular impact on the development of intellectual property and technology law. Our briefs have impacted legal policy across the country.


Aliign Activation Wear, LLC v. lululemon athletica Canada Inc. and lululemon USA Inc (9th Cir.)

Successfully defeated an appeal of the district court’s decision of non-infringement in connection with allegations by Aliign Activation Wear that lululemon infringed its trademark by using the mark ALIGN in connection with a yoga product collection.

Vocalife Inc. v., Inc. (Fed. Cir.)

Defended in a patent infringement case against Amazon’s Echo smart speakers.  The team obtained favorable constructions of two claim terms on which Amazon based its non-infringement defenses and drafted a successful motion for partial summary judgment that eliminated the bulk of the plaintiff’s alleged damages before trial.  On appeal to the Federal Circuit, the team secured a complete victory by prevailing on non-infringement.

Mallinckrodt v. Masimo (Fed. Cir.)

Represented Masimo and obtained an affirmance of a $164.5 million judgment, including a $134.5 million jury verdict, and a reversal of a denial of a permanent injunction.

CardiAQ Valve Technologies v. Neovasc (Fed. Cir.)

Represented CardiAQ in a trade secret misappropriation case against its former service provider, Neovasc, and obtained a complete affirmance from the Federal Circuit of a $112 million judgment.

Lockwood v. American Airlines (U.S. Supreme Court & Fed. Cir.)

Represented American Airlines in a patent infringement case in which three patents were asserted against its Sabrevision reservation system. After persuading the Supreme Court to grant certiorari to vacate a Federal Circuit order that reinstated a jury demand on mandamus, we obtained an affirmance of a judgment that none of the three patents was infringed and two of the patents were invalid.

Personalized Media Communications v. (Fed. Cir.)

In three appeals, represented Amazon against allegations of infringement of seven patents. Obtained a complete affirmance from the Federal Circuit that all of the patents were invalid for claiming ineligible subject matter and that claims could not be amended in an inter partes review proceeding before the USPTO.

Practice Management Info. v. American Medical Association (9th Cir.)

Represented book publisher Practice Management Information in a copyright infringement dispute. Convinced the Ninth Circuit to recognize the defense of copyright misuse, hold that the asserted copyrights were in fact misused and hold that the copyrights were thus unenforceable until the misuse was purged.

Applied Medical Resources v. U.S. Surgical (Fed. Cir.)

Represented Applied Medical and obtained an affirmance of a $64.5 million judgment, which included a $43.5 million jury verdict, a finding that Tyco-Unit U.S. Surgical had willfully infringed a patent and an award of enhanced damages and attorneys’ fees.

KFx Medical v. Arthrex (Fed. Cir.)

Represented KFx Medical in an infringement action involving patented methods widely used in rotator cuff repair and persuaded the jury to award KFx $35 million after the jury found that all three KFx patents were valid and willfully infringed by Arthrex. On appeal, obtained an affirmance of the judgment from the Federal Circuit.

Dupuy Synthes v. Smith & Nephew (Fed. Cir.)

In two appeals, represented Smith & Nephew, accused of infringing two patents on orthopedic bone plates by subsidiaries of Johnson & Johnson. Obtained a reversal of a USPTO reexamination decision upholding the claims of one patent, which the Federal Circuit held were invalid for obviousness. In the second appeal, obtained affirmance that the second patent was also invalid for obviousness, rendering moot all pending litigation concerning these patents.

Intelligent Bio-Systems v. Illumina Cambridge (Fed. Cir.)

Represented Illumina in obtaining a final IPR written decision upholding the validity of all challenged claims from a patent directed to DNA sequencing by synthesis. Obtained an affirmance of patentability from the Federal Circuit.

Hansen Beverage v. Consolidated Beverage (9th Cir.)

Represented Monster Energy in successfully enforcing a settlement agreement of a trademark action that required the defendant to change the labeling on its energy drink.

Hewlett-Packard v. Mustek Systems (Fed. Cir.)

Represented Mustek Systems, a manufacturer of digital scanners accused of infringing several Hewlett-Packard patents. After a jury trial, obtained a judgment from the Federal Circuit in favor of Mustek on all issues, upholding the jury's invalidity finding and overturning the jury's infringement finding.

St. Jude Medical v. Access Closure (Fed. Cir.)

Represented medical-device maker after it lost a trial and faced a pending injunction for infringing a patent on devices for sealing vascular punctures. Obtained a reversal and a Federal Circuit ruling that the patent was not protected by safe-harbor provision and thus was invalid for double patenting.

Lewis v. Moore (11th Cir.)

Represented Masimo Corp. in a case where participants in a double-blind nationwide study alleged that customized pulse oximeters were defective because of the manner in which they reported oxygen saturation and that they increased their risk of harm. On appeal, the Eleventh Circuit affirmed summary judgment of no liability, holding that the plaintiffs had no evidence of any actual injury.

Yorkey v. Diab (Fed. Cir.)

In three appeals from two patent interferences against Covidien subsidiary Nellcor, represented medical-device maker Masimo and established that it was the first inventor of various algorithms for pulse oximeters to measure through motion.

Ambiguous Phrase in a Patent Assignment Precludes Summary Judgment Regarding Standing
Infringement Judgement Is Only Final When There’s Nothing Left to Do but Execute
Unclean Hands and Inequitable Conduct: Dishonesty Is Not the Best Policy