Josh Fougere, a partner in the firm’s Supreme Court, Appellate, and Litigation Strategies practice based in Washington, D.C., recently secured two significant appellate victories in two days.
In the first, Josh won in the U.S. Court of Appeals for the Federal Circuit on behalf of Microsoft. The appeal related to a lawsuit brought against Microsoft by SurfCast, an operating system design company, accusing Microsoft of infringing four SurfCast patents. The Patent Trial and Appeal Board (PTAB) found all of the asserted patent claims invalid, and SurfCast appealed to the Federal Circuit. Josh led the briefing and argued the appeal, and the Federal Circuit summarily affirmed the PTAB’s decision. The appellate victory should also bring an end to the underlying district court litigation.
In the second, working closely with Amgen’s in-house team, Josh won a precedent-setting appeal in the U.S. Court of Appeals for the Third Circuit. Amgen filed a lawsuit in New Jersey seeking discovery for use in patent infringement litigation in South Korea. The counterparty, Celltrion, Inc., is a biotechnology company with plans to sell biosimilar versions of two of Amgen’s blockbuster bone cancer medications. After the district court ruled that Amgen was entitled to discovery, but had not yet decided the scope of that discovery, Celltrion appealed. Josh led the appellate team in moving to dismiss Celltrion’s appeal for lack of appellate jurisdiction. In a precedential decision, the Third Circuit agreed—granting the motion to dismiss and holding that Celltrion’s appeal was premature because the district court order was not yet “final.”
