Patent Appeals

Patent Appeals : The Elements of Effective Advocacy in the Federal Circuit

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The need for a legal "Elements of Style" aimed at U.S. patent litigators has long been acknowledged by patent law attorneys and judges within the Federal Circuit. The United States Court of Appeals for the Federal Circuit has recently embarked on a campaign to improve the quality of briefing. With Patent Appeals: The Elements of Effective Advocacy in the Federal Circuit, Mark Davies has provided attorneys with an indispensable guide to briefing and arguing cases before the Federal Circuit. Patent Appeals: The Elements of Effective Advocacy in the Federal Circuit is a practical guide to appellate advocacy for patent attorneys appearing before the federal appellate court responsible for patent law. The book guides readers through the organizational requirements needed for a Federal Circuit appellate brief, as set out in the Federal Rules of Appellate Procedure, with an emphasis on developing an appellate style for briefing a patent appeal. It is an essential manual of instruction for litigators and anyone interested in understanding the procedures of writing a winning appellate brief and presenting it in court. Topics include clear writing, the importance of presentation, the types of arguments most likely to succeed, and the formal requirements for filing a brief. Other issues include effective oral argument presentation and petitions for panel rehearing and rehearing en banc. Samples (all written by the author) are more

Product details

  • Paperback | 311 pages
  • 167.64 x 205.74 x 22.86mm | 385.55g
  • Oxford University Press Inc
  • New York, United States
  • English
  • Illus.
  • 0195338340
  • 9780195338348

Review quote

"This work, by one of the leading appellate lawyers, is an indispensable combination of intellectual-property issues and appellate strategy. In an easy-to-use format that tracks the Federal Rules of Appellate Procedure, Mark Davies distills his unique background in both high-stakes appellate practice and patent law to assist the patent litigator prepare a clear and effective Federal Circuit brief that best advances the client's cause. This highly readable work includes both the nuts and bolts of appellate practice, as well as numerous substantive suggestions about effective presentation and argumentation. This book is an invaluable work for every patent litigator." -Walter Dellinger, Chairman of the Appellate Practice at O'Melveny & Myers LLP, former Acting Solicitor General of the United States, and Duke University Douglas B. Maggs Professor Emeritus of Law"Mark Davies has written a much-needed guide to the patent appeal process that will prove invaluable to any practitioner having a patent case before the Federal Circuit." -Thomas W. Krause, Associate Solicitor, United States Patent & Trademark Office and Adjunct Professor, Georgetown University Law Center."Mark Davies recently authored the user manual for Federal Circuit appeals. From its 300 spiral-bound pages, you can tell that the book is designed to serve the appellate attorney during the process of crafting a brief. Davies argued dozens of appeals as a DOJ appellate attorney and is now doing the same at O'Melveny in DC. The book is very easy to read and understand, and it does an especially good job of providing concrete advice on how to draft an effective and clearly written brief while staying within the rules. If you have an appeal pending, you better use the book." -Dennis Crouch, Patently-O blog at"A handy guide for patent appeals... The author is at his best when providing tips about what judges are looking for in each section of the brief. He gives the reader real confidence that if you follow his guide your brief and arguments will be well received and the court will presume you are experienced at the Federal Circuit The author has created a helpful, easy-to-use guide for patent appeals. This book is an excellent reference for the patent litigator." David P. Irmscher, Indiana Lawyershow more

Table of contents

INTRODUCTION; A. Purpose of Book; B. Structure of Book; C. How to Use the Book; 1: The Supreme Courts Renewed Focus on IP; A. Appellate Philosophy of the Supreme Court; B. Federal Circuit's Special Role; C. The Lessons for Patent Appeals; 2: Writing the Introduction; A. Setting the Themes Early; B. Samples (Moore); C. Comment; 3: Procedural Niceties; A. Attention to Detail Matters; B. Samples; 4: Statement of Issues Presented; A. The Art of Issue Writing; B. Samples from SG Briefs (e.g., Traffix); C. Comments; 5: Statement of Facts; A. Telling and Tilting a Story; B. Sample (e.g., Merck); C. The Special Case of Claim Construction Appeals; 6: Standard of Review; A. Overrated; B. Samples; 7: Summary of Argument and Argument; A. The Preeminent Importance of the Summary of Argument; B. Selecting the Right Arguments; 1. Textual Arguments; 2. Policy Arguments; 3. Arguments from Precedent; 4. Common Mistakes to Avoid; 8: Answering Briefs; A. Restate Everything; B. Restructure Argument; C. Samples; 9: Reply Brief; A. Importance; B. Tone; C. Samples; 10: Oral Argument; A. The Purpose of Oral Argument; B. Preparation; C. The Moot Court; D. The Performance; 11: Petitions for Rehearing; A. How to Get Attention; B. Samples (Enzo, Eli Lilly); C. Comment; 12: Petitions for Certiorari; A. Basic Principles; B. Examples (Merck); C. "Calls for Views of the Solicitor General"; 13: Working with Appellate Counsel; A. Advantages of Co-Counsel; B. Working as a Teamshow more

About Mark Simon Davies

Mark Simon Davies is a counsel in O'Melveny & Myers LLP's Washington, D.C. office, where he works on appellate matters in one of the top Supreme Court and Appellate practices in the country, led by former Acting Solicitor General Walter Dellinger. While on the Appellate Staff of the Civil Division at the U.S. Department of Justice, Mark represented the United States Patent and Trademark Office, the United States Copyright Office, the Federal Communications Commission, the Department of Health and Human Services, the Office of Federal Housing Enterprise Oversight, and various other federal agencies. He argued more than twenty-five cases (in nine different appellate circuits), including Festo Corp. v. SMC, Corp., Fed. Cir. No. 95-1066 (en banc), and Southco Inc. v. Kanebridge Corp., 3d Cir. 02-1243 (en banc). He also drafted numerous 'Calls for the Views of the Solicitor General, ' particularly in patent cases, and various Supreme Court merits briefs. In addition, Mark appeared frequently before the Foreign Intelligence Surveillance Court while on a six month detail to the Justice Department's Office of Intelligence Policy and more

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