David McPhie’s practice focuses on intellectual property matters and other complex disputes. He has represented clients at every stage of litigation through trial and appeal in courts across the country, including the Patent Trial and Appeal Board and the U.S. International Trade Commission. His legal and technical experience spans a wide variety of technological fields, including medical devices, software, semiconductors, computer networking and security, telecommunications, storage media and consumer electronics.

David has repeatedly been named to the Southern California Super Lawyers and Rising Stars lists. Two of his trial victories were selected as a “Top Defense Verdict” by the Daily Journal. More recently, David litigated a complex dispute involving over a dozen patents that resulted in a $175 million payment to his client.

Prior to starting law school, David co-authored the book Perl How to Program with Deitel & Associates, a best-selling publisher of computer programming textbooks.

Experience

  • Defended medical device company against claims of willful patent infringement. Secured multiple rejections of asserted claims in the U.S. Patent and Trademark Office (USPTO) before court granted Daubert challenge against opposing damages expert. Case settled shortly after court granted order to show cause challenging plaintiff to identify any surviving damages theory.
  • Represented network security company in patent infringement case against competitor founded by former employee. Obtained early dispositive ruling on key defense and successfully fought off challenges to the asserted patents on summary judgment and in the USPTO. Case ultimately settled for $175 million.
  • Took over defense of medical device company in patent infringement case after adverse jury verdict of infringement and validity. Successfully challenged validity of multiple asserted claims on appeal and in USPTO. At subsequent damages trial, jury rejected claim for $217 million in damages on remaining claims and rendered verdict of no willful infringement.
  • Served as a key member of trial team in case claiming over $200 million in damages on contract and patent warranty claims against semiconductor equipment client. Obtained complete defense verdict at trial in Santa Clara County Superior Court including more than $5 million in attorneys' fees. Both verdict and fees were affirmed by the California Court of Appeal.
  • Defended networking device manufacturer against patent infringement claims accusing products accounting for approximately $4 billion per year in revenue. Secured initial rejections of patent claims in USPTO proceedings before obtaining judgment of both invalidity and noninfringement at summary judgment stage.
  • Represented leading provider of speech-recognition software in patent infringement disputes against competitor involving multiple cases and jurisdictions. Case settled successfully with acquisition of competitor.
  • Served as trial counsel for leading supplier of semiconductor equipment manufacturer accused of patent infringement. Obtained defense verdict of patent invalidity on multiple grounds. Verdict was affirmed by the Federal Circuit.
  • Defended networking device company against claims of patent infringement involving multiple cases. Successfully moved to transfer cases out of U.S. District Court for the Eastern District of Texas and then obtained stay pending completion of USPTO proceedings. All asserted claims were ultimately cancelled in the USPTO.
  • Represented medical device company in protracted patent disputes involving cardiac rhythm management devices and electrical leads. Secured settlement shortly before trial.
  • Asserted memory control patents against major manufacturer of laptop computers. Obtained sanctions order against opponent excluding noninfringement expert from testifying at trial and severely limiting scope of opening statement and closing argument. The case settled shortly thereafter.
  • Successfully prosecuted multiple enforcement actions asserting design patent infringement, trade dress and unfair competition claims against copycat manufacturers of wireless headsets.
  • Represented restaurant chain in defense of class and unfair competition claims on behalf of consumers alleging false advertising. Brought successful motions to dismiss original and amended complaints at the pleading stage. 
  • Served as lead counsel for a leading multimedia and office productivity software company in patent infringement suit. Case settled shortly after filing early motion to dismiss. 

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))

Speaking Engagements

  • "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)
  • "Challenging Patents in the Courts and the PTO," Patent Law Course, University of California Irvine (September 26, 2012)
  • "Reexamination and Litigation," Patent Law Course, University of California, Irvine (November 16, 2010)

Professional Activities

  • Harvard Law School Association of Orange County
  • Reuben Clark Law Society, Orange County Chapter
  • Orange County Bar Association
  • Federal Bar Association of Orange County

Education

Harvard Law School (J.D., 2003), magna cum laude

Harvard College (B.A., Physics 2000), magna cum laude

Admissions

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

Clerkships

  • Hon. Samuel A. Alito Jr., U.S. Court of Appeals for the Third Circuit
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