Mark Davies

Partner

Washington, D.C.


Read full biography at www.orrick.com

Mark Davies is co-head of the firm’s Supreme Court & Appellate Litigation practice.

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)

Posts by: Mark Davies

Ninth Circuit Upholds Landmark FRAND Decision and Jury Verdict

On July 30, 2015, the Ninth Circuit issued one of the most significant appellate opinions regarding standard essential patents (SEPs) subject to commitments to license on fair, reasonable and non-discriminatory (FRAND, or simply RAND) terms.  In Microsoft Corp. v. Motorola, Inc. (Case No. 14-35393), the Court upheld determinations by U.S. District Court Judge James Robart (W.D. Wash.) as to (i) when a member of a Standard Setting Organization (SSO) is obligated to license that member’s SEP on FRAND terms, (ii) what the proper methodology is for calculating a FRAND royalty rate, and (iii) what remedies are available for breach of an obligation to license a SEP on FRAND terms.  The affirmance represents a major victory for Microsoft and other SEP licensees, and provides significant guidance regarding future FRAND disputes.

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