David W. Higer - Partner

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David W. Higer

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Chicago
Phone: +1 312-862-7029
Fax: +1 312-862-2200
Overview News Publications

Professional Profile

David W. Higer is an intellectual property litigation partner based in the Chicago office of Kirkland & Ellis LLP. He is an experienced trial lawyer with a national practice, including prior and current cases in federal district courts in California, Delaware, Florida, Georgia, Illinois, Maryland, Minnesota, Nevada, New York and Texas. He also has tried cases before the Patent Trial and Appeal Board, International Trade Commission, and arbitration tribunals. Dave acts as lead counsel or lead counsel equivalent in his cases both in crafting complex litigation strategy and at trial and frequently handles large, complex cases and those involving cutting edge legal and technical issues. His practice focuses on advising clients in all aspects of patents, copyrights and trademarks, including trial and appellate litigation, alternate dispute resolution, patent post-grant review, and the assessment of potential opportunities or risks for particular patents, copyrights or trademarks.

Dave’s patent practice spans a wide range of clients and industries. He has experience litigating cases involving databases, digital imaging technology (both hardware and software), embedded systems, encryption, gaming technology, medical devices, optics, semiconductor technology, standards essential patents, and telecommunications (both hardware and software). His copyright practice also spans a wide range of clients and industries. He has experience litigating architectural, pictorial, graphic and sculptural, and literary copyrights. He also has experience in litigating complex copyright issues related to international copyright law issues.

Dave’s recent trial practice has resulted in the institution and invalidation of all challenged claims in two inter partes review proceedings before the PTAB, the invalidation of four patents on § 101 grounds in Maryland federal court, and the successful settlement of a highly-publicized dispute in the wireless industry. Over his career, in addition to non-monetary relief, Dave has achieved well in excess of eight figures in settlement value for his clients. Dave also has successfully defended his clients against numerous claims for both monetary and non-monetary relief.

Dave’s appellate practice includes patent-related appeals before the Federal Circuit Court of Appeals, a copyright appeal before the Eleventh Circuit Court of Appeals and an amicus curiae brief filed in the United States Supreme Court.

Dave also is committed to pro bono service. His pro bono activities include a current § 1983 case in Illinois federal court. He also works with the Center for Conflict Resolution to mediate disputes. His past pro bono cases have included a number of intellectual property-related cases from Lawyers for the Creative Arts.


Publications

A Bridge Too Far? Limits in PTAB Trials for Oral Argument and Demonstratives, THE PATENT LAWYER (Feb. 2016)

Supplemental Examination—Where’s The Love, INTELLECTUAL PROP. MAGAZINE 35–36 (Nov. 2015)

Join the Fray, Intellectual Prop. Magazine 67–69 (Apr. 2015)

Reissue Proceedings: Another Twist in the Tale of AIA Post-Grant Review, Intellectual Prop. Magazine 36–37 (Mar. 2015)

Reissue Proceedings: Another Twist in the Tale of AIA Post Grant Review, NYIPLA Bulletin 26–27 (Feb.–Mar. 2015)

Definitely, Maybe, The Patent Lawyer 21–23 (Jan.–Feb. 2015)

A Tale of Two Claim Constructions – When the Patent Expires During an AIA Review, NYIPLA Bulletin 8–9 (Dec. 2014–Jan. 2015)

High Octane!, The Patent Lawyer 21–23 (Dec. 2014)

An Appeal-ing Proposition: Federal Circuit Standards of Review for Decisions of the Patent Trial and Appeal Board, NYIPLA Bulletin 19–23 (Oct.–Nov. 2014)

The Price of a Stay: Prior Art Estoppel, Intellectual Prop. Magazine 61–64 (Oct. 2014)

An Appeal-ing Proposition, The Patent Lawyer 35–39 (Sept.–Oct. 2014)

Down the Rabbit Hole, The Patent Lawyer 19–21 (Sept.–Oct. 2014)

Muniauction has a Moment in the Limelight, The Patent Lawyer 25–27 (Sept. 2014)

A New Indefinite Test, The Patent Lawyer 45–47 (Sept. 2014)

Sticker Shock: Prior Art Estoppel of Non-IPR Petitioners in District Court Stay Requests, NYIPLA Bulletin 16–19 (Aug.–Sept. 2014)

The U.S. Supreme Court Clarifies “Exceptional” Cases under 35 U.S.C. § 285 and the Appellate Standard of Review, 26 No. 8 IPTLJ 20 (Aug. 2014)

Motion to Amend: Focus on Detail or Face Denial, Intellectual Prop. Magazine 67–70 (July–Aug. 2014)

An Appeal-ing Proposition: Federal Circuit Standards of Review for Decisions of the Patent Trial and Appeal Board, IPO L. J., available at: http://www.ipo.org/wp-content/uploads/2014/07/CAFC_Rev_of_PTAB.pdf (July 8, 2014)

Gaining the Benefit of an Earlier-Filed Inter Partes Review by Applying the IPR Joinder Provisions Under the America Invents Act, NYIPLA BULLETIN 1, 4–6 (Apr. 2014–May 2014)

The U.S. Supreme Court Clarifies “Exceptional” Cases under 35 U.S.C. § 285 and the Appellate Standard of Review, Kirkland Alert (May 2014)

Parallel Proceedings: Stays of Parallel Related Patent Office Proceedings in View of a Later-Filed Inter Partes Review, THE PATENT LAWYER MAGAZINE 25–29 (Apr. 2014)

Lighting Rod: Supreme Court Likely, INTELLECTUAL PROPERTY MAGAZINE 72–74 (Apr. 2014)

Survey of U.S. Court Decisions to Stay Part 3: Where Stays Were Denied, INTELLECTUAL PROPERTY MAGAZINE 47–49 (Apr. 2014)

Survey of U.S. Court Decisions to Stay Part 2: Where Stays Were Granted, INTELLECTUAL PROPERTY MAGAZINE 37–40 (Mar. 2014)

En Banc Federal Circuit Confirms Claim Construction is Reviewed De Novo on Appeal, Kirkland Alert (Feb. 2014)

Survey of U.S. District Court Decisions Addressing Requests to Stay a Case Pending Resolution of an Inter Partes Review (Part 1), INTELLECTUAL PROPERTY MAGAZINE 46–48 (Feb. 2014)

Survey of U.S. District Court Decisions Addressing Requests to Stay a Case Pending Resolution of an Inter Partes Review, NYIPLA BULLETIN 24–27 (Dec. 2013–Jan. 2014)

Questions Remain Over Identifying ‘Real’ Parties-in-Interest, INTELLECTUAL PROPERTY MAGAZINE, 56–59 (Oct. 2013)

New Law Reshapes U.S. Patent Landscape, Kirkland & Ellis Private Equity Newsletter (September 2011)

Are Patent Rights Headed to the Races?, Chicago Lawyer, Intellectual Property Section (June 2011)

The 10 Deadly Sins: A Law with Unintended Consequences, 96 Tax Notes 871 (Aug. 5, 2002); 2002 TNT 151-39


Seminars

PTAB Practice and Strategy: A Trial Attorney’s Perspective, 22nd Annual Technology & Law Seminar (May 20, 2015)

USPTO Post-Grant Review Proceedings: Lessons Learned, Questions Pending and Strategic Considerations, 21st Annual Technology & Law Seminar (May 20, 2014)

Lessons Learned/Questions Pending: USPTO Post-Grant Review Proceedings -- Trial Lawyer’s Perspective, Chicago Bar Association Young Lawyers Section, Intellectual Property (April 2, 2014)

Panel Discussion: Pro Bono Copyright Representations and Common Issues, DePaul University College of Law (March 14, 2011)


Courts

2012, Trial Bar for the U.S. District Court for the Northern District of Illinois

2006, U.S. District Court for the Northern District of Illinois

2005, Ninth Circuit Court of Appeals

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