Mark believes in Progress through persuasion. As a life-long early adopter of the latest technology, Mark has always believed in the promise of innovation. And as a believer in the justice embedded in the appellate process, Mark has time and time again persuaded Federal Circuit judges to rule for his clients.

Mark leads a team with spectacular credentials, deep expertise in intellectual property law, and that shares his belief in the client’s case. In the past few years, Mark has led Dow AgroSciences, EMC, NVIDIA, and Nintendo among others to victories that live out the Constitutional vision of a sound intellectual property regime. Mark feels lucky to have a legal practice he enjoys so much, one that combines his admiration for technological advances with enjoyment of the art of legal persuasion. 

The author of the “user manual” for Federal Circuit appeals, Patent Appeals: The Elements of Effective Advocacy in the Federal Circuit (LexisNexis® Intellectual Property Law and Strategy Series, November 2017), Mark brings nearly twenty years’ of experience in intellectual property appeals, both in private practice and government. He was recognized in a Reuters special report as a member of the “elite cadre” of lawyers that are “the most influential members of one of the most powerful specialties in America: the business of practicing before the Supreme Court.” Reuters researched a field of 17,000 practitioners, identified a group of 75 who “have stood out – most for their success at getting cases before the high court,” and who “giv[e] their clients a disproportionate chance to influence the law of the land.”

As a member of the Appellate Staff of the Civil Division at the U.S. Department of Justice, Mark represented the U.S. Patent and Trademark Office, the Copyright Office, the International Trade Commission and other federal agencies before the Federal Circuit, other U.S. Courts of Appeals, and the U.S. Supreme Court.

Sample Wins in the Last Five Years

  • Dow AgroSciences. Mark led the winning appellate team in a patent action revolving around Bayer’s allegations of patent infringement from Dow’s next generation of herbicide-resistant crop seeds. Bayer CropScience AG v. Dow AgroSciences LLC, No. 15-1854 (Federal Circuit)
  • EMC Corp. Mark led the winning appellate team that obtained the definitive pre America Invents Act opinion addressing the improper use of joinder in patent cases. In re EMC Corp., Misc. No. 142 (Federal Circuit)
  • Nintendo Co. Mark led the winning appellate team that successfully defended Nintendo’s most important product—the Wii. Motiva, LLC v. ITC, No. 2012-1252 (Federal Circuit)
  • NVIDIA Corp. Mark led the winning appellate team in an appeal against a patent licensing entity. BIAX Corp. v. NVIDIA Corp., No. 2012-1387 (Federal Circuit)
  • Mark led appellate teams in the following recent or pending matters:

    Mark’s pro-bono matters include:

    Mark’s U.S. Department of Justice experience includes:

    From 1999-2006, Mark was on the Appellate Staff of the Civil Division at the U.S. Department of Justice (DOJ), where he represented the U.S. Patent and Trademark Office, the Librarian of Congress, and various other federal agencies before the U.S. Court of Appeals for the Federal Circuit, other U.S. Courts of Appeals, and the U.S. Supreme Court.

    At the DOJ, Mark argued cases in nine different appellate circuits, including several high-profile intellectual property appellate matters: Festo Corp. v. SMC Corp. (en banc) (prosecution history estoppel); Southco v. Kanebridge (en banc) (copyright of short phrases); and Program Suppliers v. Librarian of Congress (distribution of cable royalties). He also briefed other important intellectual property appellate cases, including Enzo v. Gen-Probe (written description); Eli Lilly v. Washington (interference proceeding); and Kay Berry v. Taylor Gifts (copyright registration).

    In addition while at DOJ, Mark played a key role in four Supreme Court merits matters that involved intellectual property: Merck KG v. Integra Lifesciences (safe harbor for drug testing); Traffix Devices, Inc. v. Marketing Displays, Inc. (trade dress infringement); Moseley v. V Secret Catalogue (trademark dilution); and Dastar Corp. v. Twentieth Century Fox (Lanham Act). Mark also helped prepare the Solicitor General’s response to six requests for views by the Supreme Court in intellectual property matters: Fin Control v. Surfco (combination patents); Honeywell v. Hamilton (doctrine of equivalents); Micrel v. Linear Technology (on-sale bar); Monsanto v. Bayer (bona fide purchaser sublicensee); SmithKline v. Apotex (novelty); and Jazz Photo v. Fuji (representing the International Trade Commission).

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