Federal Circuit Appeals

We regularly argue patent appeals at the U.S. Court of Appeals for the Federal Circuit, and other IP appeals at federal and state appeals venues. Baker Botts has top-notch IP appellate lawyers who deliver a strong record especially in handling Federal Circuit appeals. Over the past decade, we have handled over 250 appeals before the Federal Circuit buttressing our top-ranked active IP Litigation, International Trade Commission, and PTAB Trials Practices. We embed appellate professionals within our IP Teams to help them address key legal issues at trial, identify post-trial and appeal issues, and prepare post-trial motions to properly preserve issues for appeal.

Our appellate lawyers have argued before all 13 of the United States Courts of Appeals and the United States Supreme Court. Nearly all of our appellate lawyers have served as judicial clerks - for the United States Supreme Court, several United States Courts of Appeals, including the Federal Circuit—providing them insight into how appellate courts operate and various appellate judges. We have a deep bench of lawyers with experience arguing before the Federal Circuit.

We have received numerous awards and recognition for our appellate practice. We hold the recognition of "IP Practice Group of the Year" by Law360 for 2023. We are also ranked Band 2 in "Nationwide Intellectual Property Appellate" and Band 2 in "Texas Appellate" by Chambers USA 2023.

We consistently break new ground. At the Supreme Court, we assisted Qualcomm defend against Apple’s invalidity challenge based on Apple’s lack of standing (Apple Inc. v. Qualcomm Incorporated, 21-746, U.S. Supreme Court). For DISH Network, we helped secure its status as a “prevailing party” in a civil action when it defeated an infringement claim by invalidating the patent in IPR, anchoring DISH’s ability to obtain an exceptionality finding and to recover almost $1.5 million in attorneys’ fees in defending a decade-long dispute (Dragon Intellectual Property, LLC v. DISH Network LLC (2019-1283, U.S. Court of Appeals for the Federal Circuit). We refuted an argument that the Federal Circuit noted was made “not infrequently” by patentees fighting invalidity challenges under Section 101: “that their claims do improve the functioning of the computer itself.” (Customedia Technologies, LLC v. DISH Network, 2018-2239, U.S. Court of Appeals for the Federal Circuit) We helped AT&T and Ericsson expand the ability of defendants to rely on a patentee’s statements to the Patent Office as a basis to support summary judgment of noninfringement. (Iridescent Networks, Inc. v. AT& Mobility et al., 2018-1449, U.S. Court of Appeals for the Federal Circuit).

We approach trial with an eye towards appeal. Our clients’ cases are high-stakes, and we approach every trial by focusing on preserving trial issues for appeal. Our patent litigation teams embed us as co-counsel to refine issues and set the stage for appeal, and our appellate lawyers routinely represent clients by working alongside trial teams to develop case-strategies. This means drafting critical briefs during trial, preserving objections, developing dispositive theories, and arguing mid-trial motions. Our appellate lawyers are an integral part of the team long before an appeal is filed.

IP Experience at the Supreme Court. Baker Botts’ Appellate Practice is “highly acclaimed” (Chambers USA 2020) with technical acumen and U.S. Supreme Court experience. For example, we filed briefs at the Supreme Court in Apple v. Qualcomm, Google v. Oracle, Thryv, SCA Hygiene, Cuozzo and Halo/Stryker. In the life sciences area we have filed amicus briefs on behalf of both biopharmaceutical companies as well as industry organizations in several of the recent cases relating to patent eligibility, including, in connection with the Myriad case, at the district court, the Federal Circuit, and the U.S. Supreme Court.

Quarterly Index of Federal Circuit Cases and Thought Leadership. Our understanding of Federal Circuit law is expansive. We closely monitor Federal Circuit precedential opinions and prepare a deeply outlined index by subject matter (invalidity, infringement, claim construction, etc.) of recent cases making relevant legal points - in order to assist clients seeking to identify recent law relevant to a particular problem. The links below provide the most recent documents. Baker Botts also hosts an annual webinar on Supreme Court and Federal Circuit IP decisions. We are key contributors to the Federal Circuit Bar Association, serving on various committees and regularly speaking at the annual Bench & Bar program.