Eric Shumsky is a nationally recognized appellate lawyer. He handles high-stakes appeals across an array of subjects, with a particular focus on cutting-edge technology.

Chambers USA reports that Eric is “hailed as ‘highly intelligent, an effective communicator and a great writer’ by contacts, and his high-profile work in the tech patent sector is of particular interest to those who recognize him as one who ‘prepares meticulously, anticipates every question, and is a gifted orator.’” Legal 500 touts his “exceptional courtroom demeanor and presentation skills.” And Reuters, in a report reviewing some 17,000 practitioners, identified Eric as part of an “elite cadre” of 75 lawyers who are “the most influential members of one of the most powerful specialties in America: the business of practicing before the Supreme Court.”

Eric has served as appellate counsel to numerous leading companies, including AT&T, Del Monte, DISH Network, Facebook, Genentech, Gilead, KPMG, LG Electronics, LinkedIn, Microsoft, Morgan Stanley, Netflix, Norfolk Southern, Synopsys, and Twitter. Across an array of industries, Eric has briefed and argued issues as diverse as patent and copyright, labor and employment, preemption, punitive damages, environmental law, national security, and foreign sovereign immunity. He has been a primary author of more than 100 briefs in the Supreme Court alone.

Eric has particular expertise in matters of technology and intellectual property. He has been counsel in dozens of patent appeals in the Federal Circuit—litigating patents ranging from semiconductor construction, computer architecture, and genetic sequencing to tobacco curing, keyboard trays and electrical junction boxes. Eric has been praised by clients for his deep knowledge of the Federal Circuit, and repeatedly called upon to handle cases at the leading edge of patent law. And he has handled multiple appeals involving novel issues concerning the regulation of the internet, including computer fraud, takedown notices, and internet domain names.

In addition to traditional appellate work, Eric has years of experience developing legal strategy in trial courts. Trial teams repeatedly have called on him to brief and argue key legal issues in particularly high-profile and complex cases. Eric has performed this role in high-stakes multi-district litigation, criminal trials, and civil litigation involving critical dispositive motions.

Prior to joining Orrick, Eric was a partner in the appellate group at Sidley Austin. He previously worked as a law clerk for the Honorable M. Margaret McKeown of the United States Court of Appeals for the Ninth Circuit, and the Honorable Wm. Matthew Byrne, Jr., of the United States District Court for the Central District of California.

  • Eric has extensive experience in the United States Supreme Court. Those engagements include:

    • Hughes v. United States, 138 S. Ct. 1765 (2018) – successfully argued this case regarding retroactive application of changes to the Federal Sentencing Guidelines. The Court ruled 6-3 for our client after having divided 4-1-4 on the same issue just seven years before.
    • Nautilus v. Biosig Instruments, 134 S. Ct. 2120 (2014) – represented Microsoft as amicus curiae in this case concerning the patent-law doctrine of indefiniteness 
    • Cline v. Oklahoma Coalition for Reproductive Justice, 134 S. Ct. 550 (2013) – persuaded the Supreme Court to take the rare step of dismissing a petition it previously had granted, following certification to the Oklahoma Supreme Court and a favorable ruling in that court.
    • Douglas v. Independent Living Center, 132 S. Ct. 1204 (2012) – represented Santa Rosa Memorial Hospital in a case concerning the availability of a cause of action to assert preemption. 
    • Mayo Collaborative Services v. Prometheus Laboratories, 132 S. Ct. 1289 (2012) – represented amicus curiae Biotechnology Industry Organization in this seminal case concerning patent-eligibility. 
    • Chamber of Commerce v. Whiting, 563 U.S. 582 (2011) – represented U.S. Chamber of Commerce in this preemption challenge to Arizona’s employer sanctions law concerning unauthorized workers.

    Eric has briefed dozens of cases across a variety of subject areas in courts of appeals throughout the country. These include:

    • Idenix Pharmaceuticals v. Gilead Sciences, No. 18-1691 (Fed. Cir.) – represents Gilead in this appeal stemming from one of the largest patent verdicts ever.
    • Saint Regis Mohawk Tribe v. Mylan Pharmaceuticals, No. 18-638 (Fed. Cir.) – represented Microsoft as amicus curiae in a case concerning sovereign immunity in the patent domain.
    • Fox v. Netflix, 2018 WL 3198560 (Cal. Ct. App. 2018) – successfully represented Netflix in this headline-grabbing battle over alleged employee poaching and the enforceability of Fox’s employment contracts. 
    • Heller Ehrman v. Davis Wright Tremaine, 4 Cal. 5th 467 (Cal. 2018) – argued and prevailed before the California Supreme Court in this seminal case concerning the unfinished business doctrine.
    • EMC Corp. v. Clouding Corp., 686 Fed.Appx. 857 (Fed. Cir. 2017) – successfully argued for EMC (now Dell) and VMWare in an appeal concerning patents covering artificial intelligence systems. Persuaded the Federal Circuit that the agency reviewing the patents had violated foundational principles of administrative law by failing to address key arguments.
    • Facebook v. Power Ventures, 828 F.3d 1068 (9th Cir. 2016) – successfully argued this precedent-setting case for Facebook on a novel question of law under federal and state statutes regulating computer fraud and spam.
    • Synopsys, Inc. v. Mentor Graphics Corp. (Fed. Cir.) – represented Synopsys in multiple interrelated appeals. These appeals present novel issues under the America Invents Act, the Administrative Procedure Act, and involve high-stakes district court litigation. The dispute involves 11 different patents asserted in federal courts in two different states, and concerns critical technology for verifying that integrated circuits perform properly.
    • Carnegie Mellon University v. Marvell Technology Group, Ltd., 807 F.3d 1283 (Fed. Cir. 2015) – successfully defended Carnegie Mellon University on appeal in a highly publicized and long-running dispute concerning patents about reading data from computer hard drives. This appeal set the stage for an eventual settlement including a $750 million payment to CMU. 
    • Imaginal Systematic, LLC v. Leggett & Platt, Inc., 805 F.3d 1102 (Fed. Cir. 2015) – convinced the Federal Circuit to uphold the district court's determination of non-infringement.
    • Cook v. FDA, 733 F.3d 1 (D.C. Cir. 2013) – successfully argued this APA challenge to FDA’s decision to authorize the importation of certain unapproved and misbranded drugs.

    In addition, Eric regularly contributes legal analysis to trial-court litigation and regulatory matters presenting unusual or complex issues of law. Prominent examples include: 

    • In re: Chinese-Manufactured Drywall Products Liability Litigation (E.D. La., 5th Cir.) – represents Chinese companies, including Chinese sovereign entities, in this MDL concerning allegedly defective drywall.
    • In re NSA Telecommunications Records Litigation, (N.D. Cal, 9th Cir.,S. Ct.) – lawsuit concerning telecommunications providers’ liability for alleged assistance in terrorist surveillance programs, and the constitutionality of the FISA Amendments Act. 
    • United States v. Acevedo Vila (D.P.R. 2009) – criminal defense of former Governor of Puerto Rico stemming from alleged campaign finance and tax charges. The jury acquitted on all counts. 
    • Morris v. People’s Republic of China (S.D.N.Y. 2007) – successful defense of China against an effort to redeem pre-Revolutionary Chinese bonds.