David McPhie is a litigation partner in the Newport Beach office of Irell & Manella LLP. Mr. McPhie’s practice focuses on intellectual property matters and other complex disputes, representing clients at every stage of litigation through trial and appeal. Mr. McPhie has repeatedly been named to the Southern California “Super Lawyers” list, and was earlier named a Southern California "Rising Star." Two of his trial victories have been named a “Top Defense Verdict” by the Daily Journal. Mr. McPhie recently litigated a dispute involving over a dozen patents in multiple jurisdictions that resulted in a $175 million payment to his client.

As a member of the patent bar, Mr. McPhie has also successfully prosecuted numerous matters and post-issuance proceedings before the U.S. Patent & Trademark Office. In both his patent and litigation practices, Mr. McPhie works with clients in a wide variety of technological fields, including medical devices, software, semiconductors, computer networking and security, storage media, and consumer electronics.

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 numerous awards for his writing on constitutional, patent, and copyright law issues.

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 studies included lab work in 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 semiconductor photoresist applications.

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Representative Matters

  • Juniper Networks v. Palo Alto Networks: Mr. McPhie secured his latest victory for long-time client Juniper Networks when Palo Alto Networks (PAN) agreed to pay $175 million to resolve patent litigation in Delaware and California between the two network security companies. PAN’s invalidity defense in Delaware was completely eliminated during pretrial motion practice, and Mr. McPhie also successfully fought off challenges to the asserted patents in the PTO. After a trial in early 2014, the jury reached verdicts on two patents but not a third. The court declared a mistrial, which led to the $175-million settlement.
  • Linear Technology v. Novellus Systems: Mr. McPhie was a key member of the trial team that obtained a unanimous defense verdict rejecting a $200-million-plus patent warranty claim against semiconductor client Novellus Systems in Santa Clara County Superior Court. Linear sued Novellus, alleging breach of contractual obligations and statutory warranties to Linear, and sought more than $200 million in damages, as well as declaratory relief and injunctions. Following a six-week trial, a jury awarded a complete defense verdict to Novellus after only seven hours of deliberation. The Daily Journal recognized this as a “Top Defense Verdict” of 2010. The Irell team also convinced the court to award Novellus more than $5 million in attorneys' fees. The verdict and fees were affirmed by the California Court of Appeal.
  • Implicit Networks v. Juniper Networks: Mr. McPhie successfully defended Juniper against patent infringement claims by Implicit Networks accusing networking and security products accounting for approximately $4 billion per year in revenue. Juniper secured initial rejections of Implicit’s patent claims in inter partes proceedings before the PTO, then moved for summary judgment of both invalidity and non-infringement with less than two months before trial. The judge granted both motions and the case was dismissed in its entirety. 
  • Ultratech Stepper v. ASML: 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 Daily Journal recognized this victory as a “Top Defense Verdict.”
  • GraphOn v. Juniper Networks: Mr. McPhie represented Juniper in two patent infringement cases brought by GraphOn involving several firewall-related patents. Juniper successfully moved to transfer the cases from the Eastern District of Texas to the Northern District of California. The patents-in-suit were then put into reexamination before the PTO, and the litigation was stayed. Ultimately, all of GraphOn’s asserted claims were cancelled as a result of the reexamination proceedings.
  • Guidant v. St. Jude Medical: 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.
  • Juniper Networks v. Toshiba America Information Systems: Mr. McPhie represented Juniper Networks in a patent infringement dispute with Toshiba in the Eastern District of Texas. 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.
  • Plantronics v. Fashion Electronics, Datel Design and Development, and ESI Cases and Accessories, Inc.: 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.: 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 at the pleading stage in response to KFC’s motions to dismiss.
  • Simon Systems v. Corel: 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.
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  • "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))
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Seminars & Speaking Engagements

  • Panelist, "Lessons Learned: Practical Application of the Supreme Court's Decisions for Patent Prosecutors and Litigators," Orange County Bar Association's Intellectual Property & Technology Law Section, August 17, 2015 
  • Guest Lecturer, “Challenging Patents in the Courts and the PTO,” Patent Law Course, University of California Irvine, September 26, 2012
  • Guest Lecturer, “Reexamination and Litigation,” Patent Law Course, University of California Irvine, November 16, 2010
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Professional Activities

  • Harvard Law School Association of Orange County
  • J. Reuben Clark Law Society, Orange County Chapter
  • Orange County Bar Association
  • Federal Bar Association of Orange County
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Bar & Court Admissions

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