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2022 Trends and Predictions for Patent Litigation

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Richard Hung, Bita Rahebi, and Mark Whitaker authored an article for Law360 discussing trends and predictions intellectual property litigators should follow in the coming year.

We are Morrison Foerster — a global firm of exceptional credentials. Our clients include some of the largest financial institutions, investment banks, and Fortune 100, technology, and life sciences companies. Our lawyers are committed to achieving innovative and business-minded results for our clients, while preserving the differences that make us stronger.Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Prior results do not guarantee a similar outcome.

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Richard Hung, Bita Rahebi, and Mark Whitaker authored an article for Law360 discussing trends and predictions intellectual property litigators should follow in the coming year.“We predict substantive and procedural uncertainty in two key areas,” the authors wrote. “Substantively, there will be continued demands for clarity on Section 101 law, but no real clarity. Procedurally, recent U.S. Court of Appeals for the Federal Court mandamus decisions will cause patentees to reconsider their venue selections.”They added: “The only certainty this year is that hybrid work will continue, as litigants grow even more accustomed to remote work and new variants temper our return to physical offices.”Read the <a target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt3856c78cb38e83fd/6273efe77198441d81b3bef1/220103-2022-trends-predictions-patent-litigation.pdf">full article</a>.

2022 Trends and Predictions for Patent Litigation

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Rich is the Global Co-Chair of Morrison Foerster’s Litigation Department. He previously co-led the firm’s IP Litigation Group and the cross–disciplinary Intellectual Property Group for over a decade. He brings his knowledge as a registered patent lawyer and a Federal Circuit clerk to lead complex technology matters for clients in state and federal trial and appellate courts. He has represented plaintiffs and defendants in high–stakes patent litigation, competitor‑on–competitor cases, non–practicing entity assertions, and trade secret misappropriation disputes—obtaining consent judgments in multiple cases. Rich also represents clients in adversarial proceedings before the U.S. PTO and counsels clients on strategic offensive and defensive patent licensing and acquisition issues. His matters have spanned a broad range of technologies, including:<ul><li>Internet search</li><li>Cryptography</li><li>Programmable logic devices</li><li>Graphical user interfaces</li><li>Smartphones</li><li>Water filtration consumer appliances</li></ul>Rich earned dual bachelor’s degrees in electrical engineering and economics from Stanford University and his law degree from Columbia Law School. In law school, he externed for the Honorable Sonia Sotomayor, then with the Southern District of New York. He was also a James Kent Scholar, a moot court editor and judge, and a recipient of the Carroll G. Harper Prize for excellence in intellectual property. After law school, Rich clerked for the Honorable Paul Michel of the U.S. Court of Appeals for the Federal Circuit.In 2014, Rich was appointed by then San Francisco Mayor Edwin Lee to serve as a Neutral Commissioner on the San Francisco Rent Stabilization and Arbitration Board. He served two terms as President and remains on the board of directors of the Asian Law Alliance, a non-profit organization that provides pro bono legal assistance to the Asian/Pacific Islander community in the Silicon Valley. Rich is a Fellow of the American Bar Foundation.Rich previously tried multiple criminal cases—all to favorable verdicts—with the San Francisco District Attorney’s Office.

Richard Hung

Partner

Bita Rahebi serves as co-chair of Morrison Foerster’s global IP Litigation Group and cross-disciplinary Intellectual Property Group and is a co-leader of its Semiconductor Industry Group. The world’s largest and most innovative technology companies turn to Bita for her trial skills and her strategic direction leading complex, high-stakes litigation matters. She litigates before state and federal trial courts, the Federal Circuit, and the International Trade Commission on a wide range of matters involving semiconductors, software, consumer electronics, medical devices and standard essential patents (SEPs).As a trial lawyer, Bita is known for zealously representing her clients’ interests. She brings an ability to explain complicated issues to juries and judges, a skill honed through years of experience working with cutting-edge technologies. She has obtained a complete defense victory as lead trial lawyer, invalidated numerous patents, and also obtained winning results for plaintiffs.Bita’s successes have built her reputation as a recognized leader for intellectual property litigation. Chambers USA noted that Bita “offers substantial expertise handling patent disputes for technology-sector clients,” and clients have called her a “razor-sharp” lawyer who “excels at trial and litigation strategy” and is “client focused.” Bita’s accolades include:<ul><li>Named a Top Intellectual Property Lawyer by Daily Journal for multiple years</li><li>Selected as the 2022 Patent Lawyer of the Year by Euromoney Legal Media in its annual Americas Women in Business Law Awards</li><li>Recognized for Intellectual Property: Patent Litigation, California in the 2022 and 2023 Chambers USA guides</li><li>Recommended in the 2022 and 2023 Legal 500 US rankings for Intellectual Property: Patent Litigation and in 2023 for Trade Secrets (Litigation and Non-Contentious) </li><li>Named one of the Top Women Lawyers in Southern California by Los Angeles Magazine</li></ul>Bita’s litigation practice includes patent, trade secrets, and copyright litigation. In addition to her litigation practice, Bita advises clients on strategic transactional issues and negotiates on behalf of clients in patent licensing discussions. Bita has also successfully tried criminal jury matters at the Los Angeles City Attorney’s Office, securing a guilty verdict for every trial.Bita is the past president of the Los Angeles Intellectual Property Law Association and she co-founded the organization’s Women in IP committee. She also served as a Ninth Circuit Judicial Conference Lawyer Representative. Bita is a board member for ALM’s Intellectual Property Strategist.Earning her B.A. from the University of California, Berkeley, she served as president and editor-in-chief of the Daily Californian. She received her J.D. from the University of California, Los Angeles, where she was an editor of the UCLA Law Review.

Bita Rahebi

Mark Whitaker is co-chair of the firm’s Intellectual Property Litigation Practice and has more than 30 years of experience crafting legal strategies in high-stakes patent and trade secret litigation.Mark sees the whole board for each of his clients, and works closely with them to define a successful litigation outcome and determine the best path to achieve that goal. He has extensive experience navigating the rules and procedures in the nation’s top patent litigation venues, including U.S. district courts, the International Trade Commission, and the Court of Federal Claims.Mark regularly acts as lead counsel in matters involving technologies such as semiconductors, photo/optical technologies, chemicals, and database analytics. His clients do business in a broad range of industries including pharmaceuticals, medical devices, consumer products, and telecommunications. He often leads a team of MoFo lawyers representing several defendants in parallel multipatent litigations.A past president of the American Intellectual Property Law Association, Mark was elected to their prestigious Fellows membership in 2019. He is a frequent speaker at the American Bar Association, the Practising Law Institute, the Minority Corporate Counsel Association, and numerous CLE events all over the country. He is also the current co-chair of MoFo’s Diversity Strategy Committee, building on decades of experience leading law firm diversity and inclusion efforts. Additionally, Mark currently serves on Law360’s Intellectual Property Editorial Advisory Board, having been selected twice since 2021.Mark is a veteran of the U.S. Navy, having served first as a surface warfare officer and later as a member of the Navy Judge Advocate General’s Corps. Following his military service, he began his private-practice legal career as a commercial litigator before concentrating on IP and technology litigation.

Mark L. Whitaker

Patent Litigation