David C. McPhie

David McPhie is a litigation partner in the Newport Beach office of Irell & Manella LLP. Mr. McPhie's practice focuses on intellectual property litigation, with clients involved in technologies as diverse as semiconductor fabrication, computer networking, consumer electronics, video software, and biomedical devices. He has provided advice on patent, trademark, and copyright matters and other complex commercial disputes, representing clients at every stage of litigation through trial and appeal. He has also prosecuted matters (including reexamination proceedings) before the U.S. Patent & Trademark Office. He has been named a "Rising Star" in intellectual property litigation by Super Lawyers magazine.

Mr. McPhie earned his J.D. magna cum laude in 2003 from Harvard Law School, where he graduated in the top ten percent of his class and served as an editor on the Harvard Journal of Law and Technology. While in law school, Mr. McPhie received awards for his extensive writing on constitutional, patent, and copyright law issues, including: Stanford Technology Law Review Paper Contest (first place); BBCLE.com IP Student Writing Competition (first place); FDLI H. Thomas Austern Writing Competition (second place, short paper); Santa Clara Computer & High Technology Journal Comment Contest (third place); ASCAP Nathan Burkan Memorial Competition (second place, HLS & national); First-year Ames Moot Court Competition (best brief).

From 2003 to 2004, Mr. McPhie served as a law clerk to the Honorable Samuel A. Alito, Jr. of the United States Court of Appeals for the Third Circuit.

Mr. McPhie received his bachelor's degree magna cum laude in Physics from Harvard College, where his coursework included classical and quantum mechanics, electromagnetism, wave theory, chemistry, electrical engineering, and computer science. Prior to starting law school, Mr. McPhie co-authored the book Perl How to Program with Deitel & Associates, a best-selling publisher of computer programming textbooks. Mr. McPhie also worked at the Electron Vision Group of AlliedSignal, where he did research on electron beam applications for semiconductor photoresist curing.

Representative Matters

Juniper Networks v. Toshiba America Information Systems (E.D. Tex.): Mr. McPhie has represented Juniper Networks in numerous ongoing and completed intellectual property matters, including this patent infringement dispute with Toshiba. In response to a motion filed by Juniper Networks shortly before trial, the Court issued a sanctions order against Toshiba that, among other things, barred Toshiba from calling its expert witness on non-infringement and severely limited Toshiba's time for its opening statement and closing argument. The case settled shortly after the Court issued the sanctions order.

Ultratech Stepper v. ASML (N.D. Cal.). Mr. McPhie served as trial counsel for ASML, one of the world's leading suppliers of semiconductor manufacturing equipment, in this patent infringement case. While both of ASML's competitors (who were initially co-defendants in this action) entered into substantial settlements with the plaintiff, ASML elected to litigate. After a four-week trial – and with less than one day of deliberation – the jury found the plaintiff's patent invalid on multiple grounds. The Federal Circuit affirmed the jury's verdict in its entirety. The Los Angeles and San Francisco Daily Journals recognized this victory as one of the top ten defense verdicts of 2005.

Guidant v. St. Jude Medical (D. Minn., D. Del.)  Mr. McPhie has represented St. Jude Medical in a number of matters, including protracted disputes with Guidant and Cardiac Pacemakers, Inc. involving patents on cardiac rhythm management devices and electrical leads. Mr. McPhie was heavily involved in every aspect of these cases, including technical analysis, written and deposition discovery, expert discovery, and briefing on claim construction and summary judgment. The cases ultimately settled shortly before trial in the Delaware matter.

Plantronics v. Fashion Electronics, Datel Design and Development, and ESI Cases and Accessories, Inc. (N.D. Cal.): Mr. McPhie successfully represented Plantronics in multiple actions asserting design patent infringement, trade dress, and unfair competition claims relating to defendants' sales of cell phone headsets.

Fraker v. KFC Corp. (S.D. Cal.): Mr. McPhie successfully represented KFC in the defense of class and unfair competition claims on behalf of consumers alleging false advertising. The court entered judgment in favor of KFC after granting two motions to dismiss (ultimately without leave to amend).

Simon Systems v. Corel (D. Md.): Mr. McPhie served as lead counsel for Corel, a leading multimedia and office productivity software company, in a patent infringement suit brought by Simon Systems. In response to an early motion filed by Corel, Simon Systems was forced to dismiss and refile its suit, and the case settled shortly thereafter.

Publications

"Almost Private: Pen Registers, Packet Sniffers, and Privacy at the Margin," 2005 Stan. Tech. L. Rev. 1 (2005)

"Access Made Accessible: Shaping the Laws and Technologies that Protect Creative Works," 51 J. Copyright Soc'y U.S.A. 521 (2004)

"Old Drugs, New Uses: Solving a Hatch-Waxman Patent Predicament," 59 Food & Drug L.J. 155 (2004)

Book Note, 15 Harv. J. Law & Tech. 539 (2002) (reviewing Stuart Biegel, "Beyond Our Control? Confronting the Limits of Our Legal System in the Age of Cyberspace" (2001)).

Professional Activities

• J. Reuben Clark Law Society, Orange County Chapter

Bar & Court Admissions

• 2004, California
• U.S. District Court, Central, Northern and Southern Districts of California
• U.S. Court of Appeals, Ninth Circuit
• U.S. Court of Appeals, Federal Circuit
• United States Patent and Trademark Office