Blair A. Silver - Banner Witcoff

Blair A. Silver has more than a decade of experience in complex intellectual property disputes and related appellate matters. He has been recognized by Super Lawyers as a Washington, D.C. “Rising Star” in appellate and intellectual property litigation from 2016-2019. Managing IP recently recognized Mr. Silver as a “Top PTAB Attorney,” and Docket Navigator similarly recognized Mr. Silver as one of the “Top 50 Petitioner and Patent Owner Attorneys at the PTAB.”

Mr. Silver has represented clients in a wide variety of high-stakes appellate matters before the U.S. Supreme Court and before the U.S. Court of Appeals for the Federal Circuit on cutting-edge legal issues. He has also provided strategic appellate advice and counseling to trial counsel preparing for trial and possible appeal in patent cases for Fortune 500 companies in cases with more than $1 billion at stake. In the trial court, he has briefed, argued, and won dispositive motions and litigated cases from filing through trial on behalf of companies ranging from technology startups to recognized industry leaders. Mr. Silver has been counsel of record and the driving force in over 48 inter partes review and covered business method review proceedings before the Patent Trial and Appeal Board. And he has extensive experience working closely with a vast range of technologies and industries, including electronics & computers, financial technology, medical devices, pharmaceuticals, and consumer products. In addition, he has experience working on high-profile copyright and trademark infringement and dilution litigations.

Mr. Silver also served as a law clerk to Judge Alan D. Lourie of the U.S. Court of Appeals for the Federal Circuit.

Representative Appellate Litigation Matters

Represented the American Intellectual Property Law Association before the Supreme Court as amicus curiae in Return Mail, Inc. v. United States Postal Service, No. 17-1594 (U.S.).
Represented 14 leading technology companies before the Supreme Court as amici curiae in Oil States Energy Serv., LLC v. Greene’s Energy Group, LLC, No. 16-712 (U.S.).
Advised a major media and technology company on appellate strategy, issue preservation, briefing, and trial and post-trial strategy in a VoIP technology case involving more than $1 billion in damages in D. Kan.
Represented a leading social media company against a non-practicing entity on appeal before the Federal Circuit in defense of a stipulated judgment of noninfringement based on the district court’s construction of claim terms. The Federal Circuit affirmed the district court’s claim construction entirely, thus securing the judgment of noninfringement.
Represented a leading social media company in an appeal before the Federal Circuit against a non-practicing entity in defense of a judgment of noninfringement in the wake of accusations of judicial bias during on questioning by the district court judge during trial. The appeal also involved a large number of additional issues related to invalidity, damages, and the exclusion of expert testimony. The Federal Circuit affirmed the district court’s judgment of noninfringement and determined the district court’s questioning was not an abuse of discretion.
Successfully advised a major media and technology company on issue preservation and post-trial strategy and briefing involving synchronous optical networking ring technology, which led to complete reversal of a $27 million patent infringement jury verdict in D. Del.

Representative Intellectual Property Litigation Matters

Represented a financial technology data aggregator start-up against an incumbent competitor in a patent infringement case in D. Del. involving seven patents, multiple inter partes reviews, and antitrust counterclaims. Successfully briefed, argued, and won a motion to exclude the testimony of the plaintiff’s damages expert on the eve of trial. The case settled favorably shortly afterwards.
During a remand trial on patent damages involving a user interface patent in S.D. Cal in July 2011, secured a jury verdict of $70 million, the exact amount presented to the jury.
Represented a leading news organization in a copyright infringement dispute regarding Shepard Fairey’s unauthorized use of a photograph of President Obama to make the Obama “Hope” poster and related merchandise during the 2008 presidential election. Uncovered extensive fabrication and destruction of documents by Fairey, which led to a criminal investigation by the U.S. Attorney’s Office. The civil litigation later settled favorably, including shared rights to make posters and merchandise using the “Obama Hope” image and other future collaboration.
Defended household consumer goods company in a patent infringement suit in E.D. Tex. related to chemical composition of fabric refreshers. After potential antitrust and unfair competition violations were uncovered, the case settled favorably.
Defended respondent in an International Trade Commission investigation involving four patents relating to flash memory, securing a determination that the complainant, who had recently filed for bankruptcy, lacked sufficient domestic industry.

Representative Patent Trial and Appeal Board Matters

Successfully represented a large technology company in multiple inter partes review proceedings related to camera phones, resulting in the Patent Trial and Appeal Board cancelling more than 85 percent of the challenged claims asserted against our client and completely invalidating one of two the patents asserted against our client.
Represented a job aggregator in two covered business method review proceedings against a non-practicing entity, ancillary to a district court litigation, which settled globally shortly after covered business method review was instituted on patent eligibility grounds under 35 U.S.C. § 101.

This includes matters handled prior to joining Banner & Witcoff, Ltd.