Joshua J. Fougere

JOSH FOUGERE handles clients’ most high-stakes and complex legal issues at all stages of litigation and pre-litigation strategy. His practice covers appellate litigation, dispositive and critical motions in trial court, and administrative agency challenges. Josh collaborates with clients to understand their cases and their businesses, and he specializes is how best to present clients’ stories—in briefs and at oral argument—to courts and adjudicators. Josh assists clients in a broad range of cases and has particular expertise in intellectual property and patent cases, government-facing litigation and the False Claims Act, gaming, and consumer class actions.

Josh has earned numerous recognitions for his successes. In 2026, Josh won “Impact Case of the Year” and was named as a finalist for “Practitioner of the Year – Appellate” at the Managing IP Americas Awards. Josh was also named among an elite group of “lawyers who have wielded influence in their practice areas in the D.C. area and beyond,” and honored as a 2021 “D.C. Rising Star” by The National Law Journal.

Representative Intellectual Property and Federal Circuit Matters

Over the past decade, Josh has worked on more than 40 cases in the Federal Circuit, including:

• Successfully argued on behalf of Microsoft in long-running case accusing Microsoft of infringing four patents related to operating system features.
• Successfully argued on behalf of appellee in appeal from an inter partes reexamination concerning networking technology.
• Lead appellate counsel for defendant-appellee Block, Inc., in case holding that all asserted claims, directed to the processing of financial transactions, were ineligible under 35 U.S.C. § 101.
• Iron Oak Techs., LLC v. Microsoft Corp., 817 F. App’x 955 (Fed. Cir. 2020) — successfully argued on behalf of appellee in securing affirmance-in-part and dismissal-in-part in appeal regarding pre-suit notice under 35 U.S.C. § 287.
• Bayer Healthcare LLC v. Baxalta Inc., 989 F.3d 964 (Fed. Cir. 2021) — Successfully represented plaintiff-appellee Bayer in securing unanimous affirmance of $182 million judgment in opinion that rejected every issue Baxalta had appealed, including claim construction, infringement, enablement, and damages.
• Amgen Inc. v. Amneal Pharms. LLC, 945 F.3d 1368 (Fed. Cir. 2020) – Represented appellant Amgen in serial appeals in ANDA litigation against numerous generic defendants concerning secondary hyperthyroidism drug Sensipar®. Secured reversal of a claim construction and non-infringement judgment against competitor while affirming infringement against another.
• Raniere v. Microsoft Corp., 887 F.3d 1298 (Fed. Cir. 2018), 673 F. App’x 1008 (Fed. Cir. 2017) — successfully represented Microsoft in affirming dismissal of patent infringement case for lack of standing and subsequently in affirming a fee award under 35 U.S.C. § 285.
• LifeNet Health v. LifeCell Corp., 837 F.3d 1316 (Fed. Cir. 2016) — successfully defended $35 million jury verdict on appeal against arguments of claim construction, non-infringement, and invalidity.
• Shire Pharms. v. Johnson Matthey Pharmaceuticals, 802 F.3d 1301 (Fed. Cir. 2015) — successfully secured reversal in the first Federal Circuit decision to address the application of the safe harbor provision of the Hatch-Waxman Act to suppliers of pharmaceutical ingredients.

Representative False Claims Act and Regulatory Litigation Matters

• U.S. ex rel. Dillon v. Incyte Corp. (E.D. Pa.) – Represented defendant Incyte in civil qui tam litigation involving charitable donations to patient assistance foundations. Led summary judgment briefing, after which the matter was resolved very favorably without any admission of liability or a Corporate Integrity Agreement.
• Successfully secured dismissal with prejudice of False Claims Act allegations against Fortune 200 company under the False Claims Act’s public disclosure and first-to-file bars.

Representative General Appellate and Litigation Matters

• Led appellate team that won a precedent-setting case in the Third Circuit under 28 U.S.C. § 1782.
• Thompson v. Armstrong, 134 A.3d 305 (D.C. 2016) — successfully argued on behalf of the appellant in obtaining reversal with instructions to enter judgment under First Amendment defense to state-law tort claim. The judgment that was reversed had been reported as one of the 10 largest verdicts or settlements in D.C. in 2014.
• Ilczyszyn v. Sw. Airlines Co., 295 Cal. Rptr. 3d 533 (Ct. App. 2022) – successfully represented appellee Southwest Airlines in securing affirmance of jury verdict after weeks-long trial and affirmance of the application of immunity under the Aviation and Transportation Security Act.
• Int’l Game Tech. PLC v. Garland, 628 F. Supp. 3d 393 (D.R.I. 2022) – successfully represented plaintiff IGT in securing declaratory judgment that the Wire Act applies only to sports betting, in a case that trade press described as “hitting the jackpot” and “a win for the online gaming industry.”
• United States v. AT&T, Inc., 916 F.3d 1029 (D.C. Cir. 2019) — successfully represented AT&T against the government’s challenge to AT&T’s $85 billion merger with Time Warner.
• Rosales-Mireles v. United States, 138 S.Ct. 1897 (2018) — successfully represented petitioner in case involving appellate review of a plain error in Sentencing Guideline calculations under Federal Rule of Criminal Procedure 52(b).
• Air Wisconsin Airlines v. Hoeper, 134 S. Ct. 852 (2014) — successfully assisted Air Wisconsin in obtaining immunity under the Aviation and Transportation Security Act.

Josh also has significant experience drafting amicus briefs in high-profile cases, including:

• United States ex rel. Polansky v. Executive Health Resources, Inc. (S. Ct. No. 21-1052) – case involving the government’s right to dismiss qui tam action after declining to intervene, with amicus brief focused on the Article II and separation-of-powers concerns with stripping the government of dismissal right.
• N.H. Lottery Comm’n et al. v. Barr, (1st Cir. No. 19-1835) – case involving challenge to the Office of Legal Counsel’s 2018 opinion that the Wire Act extends to beyond sports betting to all interstate gambling.
• Oil States Services, LLC v. Greene’s Energy Group LLC, et al. (S. Ct. No. 16-712) – case involving constitutional challenge to the inter partes review process under Article III and the Seventh Amendment.
• Christie, et al. v. National Collegiate Athletic Association, et al. (S. Ct. Nos. 16-476, 16-477) – case involving constitutional challenge to the Professional and Amateur Sports Protection Act under the anti-commandeering doctrine.
• Universal Health Services, Inc. v. United States ex rel. Escobar (S. Ct. No. 15-7) – case involving false certification theory and materiality under the False Claims Act.
• Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund (S. Ct. No. 13-435) – case involving liability for statements of opinion under federal securities statute.

Josh is a member of the Edward Coke Appellate Inn of Court, where he recently served on the Executive Board, and Josh is a member of the Giles S. Rich American Inn of Court. Josh serves as a co-chair of the Amicus Committee and is a member of the Advocacy and Survey Committees for the National Associate of Women Lawyers. He was also selected as a 2018–2019 Global Fellow by the Federal Circuit Bar Association.