David Foster focuses on international intellectual property matters, particularly international litigation and licensing, including representing both complainants and respondents in litigating patent disputes under Section 337 of the Tariff Act. Section 337 permits the United States to embargo imports of products that infringe United States intellectual property, including U.S. patents, copyrights, and trademarks. He also has handled numerous matters involving intellectual property rights before U.S. Customs and Border Protection.
Mr. Foster's began his work with Section 337 in 1974 while at the General Counsel's office of the U.S. International Trade Commission (ITC), where he assisted in transforming Section 337 into its modern form and preparing its legislative history while representing the ITC in its work with Congress in the passage of the Trade Act of 1974. He subsequently chaired the Commission group drafting implementing regulations and assisted the Chairman of the ITC in presiding over cases as the Chairman's principal legal assistant. He then served as International Trade Counsel for the Senate Finance Committee where his primary involvement was oversight of the Multilateral Trade Negotiations and passage of implementing legislation. In addition, he oversaw the work of the Commission under Section 337, and was responsible for its budget authorization. Since moving to private practice, Mr. Foster has represented clients in over 80 Section 337 cases, many involving billions of dollars in trade.
He has represented clients in a wide variety of industries, including integrated circuits, optical wave guide fibers, pharmaceuticals, steel, agricultural products such as sugar and orange juice, cellular telephones, electronics, and sophisticated manufacturing equipment.
Rankings and Recognition
- Chambers USA: International Trade: Intellectual Property (Section 337) (National), 2007 - 2017
- Chambers Global: International Trade: Intellectual Property (Section 337) (United States), 2008 - 2017
- Legal 500: Intellectual Property: Patent Litigation - International Trade Commission, 2008-2017
Professional and Community Involvement
- Founder and Former President, International Trade Commission Trial Lawyers Association
- Chairman of the Legislation Committee, International Trade Commission Trial Lawyers Association
- Member, American Intellectual Property Law Association
- Member, Federal Circuit Bar Association
- United States District Court for the District of Columbia
- United States Court of International Trade
- United States Court of Appeals for the Federal Circuit
- International Trade Counsel, U.S. Senate Finance Committee, 1977 - 1981
- Legal Advisor, Chairman, U.S. International Trade Commission, 1975 - 1976
- Attorney, Office of the General Counsel, U.S. International Trade Commission, 1973 - 1974
- LL.M. (International Law), Columbia University School of Law, 1973
- J.D., Arizona State University, 1972
- B.A., Arizona State University, 1969
- Recombinant Factor IX Products, Inv. No. 337-TA-1066 (Bioverativ v. CSL Behring). Representing complainant Bioverativ asserting patent infringement.
- Digital Television Set-Top Boxes, Inv. No. 337-TA-1041 (OpenTV, et al. v. Comcast, ARRIS, et al.). Representing respondent Comcast against allegations of patent infringement.
- Semiconductor Devices, Inv. No. 337-TA-1010 (Tessera v. Broadcom, et al.). Represented respondents against allegations of patent infringement.
- Carbon and Alloy Steel, Inv. No. 337-TA-1002 (U.S. Steel Corp. against the Chinese Steel Industry). Representing respondent Masteel Group against allegations of antitrust violations and false designation of origin.
- Portable Electronic Devices, Inv. No. 337-TA-994 (Creative Technology v. Sony, et al.). Representing respondent Sony against allegations of patent infringement. Obtained 100-day hearing and invalidated the asserted patent under §101. Currently on appeal.
- Mobile Electronic Devices Incorporating Haptics, and Inv. No. 337-TA-1004 and Inv. No. 337-TA-990 (Consolidated) (Immersion v. Apple, AT&T). Representing complainant Immersion in a consolidated investigation alleging patent infringement.
- Automatic Teller Machines, Inv. No. 337-TA-958 (Global Cash Access v. NRT Technology Corp.). Represented respondent NRT against allegations of patent infringement. Obtained favorable Markman ruling finding claim term indefinite and successfully invalidated the patent on summary determination. Complainant then withdrew the Complaint.
- Recombinant Factor VIII Products, Inv. No. 337-TA-956 (Baxter v. Novo Nordisk). Represented respondent Novo Nordisk against claims of patent infringement. The investigation settled.
- Footwear Products, Inv. No. 337-TA-936 (Converse, Inc. v. New Balance, Walmart, Skechers U.S.A., Inc. and Zulily, Inc., et al.). Representing Skechers and Zulily against charges of trademark infringement and unfair competition. Invalidated registered trademarks. Decision on appeal at the Federal Circuit.
- Personal Transporters, Inv. No. 337-TA-935 (Segway and Deka Products v. multiple respondents). Successfully represented complainants Segway and Deka, alleging infringement of utility patents, design patent, and copyrights. Obtained a General Exclusion Order and Limited Exclusion Orders against multiple respondents.
- Hemostatic Products, Inv. No. 337-TA-913 (Baxter v. J&J, Ethicon, Ferrosan and PCI). Represented respondent Ferrosan in allegations of patent infringement on a medical device manufactured by Ferrosan and sold by Ethicon in the United States. The investigation was settled.
- Antivenom Compositions, Inv. No. 337-TA-903, (BTG v. Veteria Laboratories, BioVeteria Life Sciences, LLC, Laboratorios Silanes,Instituto Bioclon S.A. de C.V. and Rare Disease Therapeutics, Inc.). Represented complainant BTG in charges of patent infringement against respondents producing an antidote to snakebites. The investigation settled.
- Point-to-Point Network Communication Devices, Inv. No. 337-TA-892, (Straight Path IP Group v. Sony, et al.). Represented several Sony entities against claims of patent infringement involving the Sony PlayStation, television sets, smartphones, and other electronic devices. The parties settled on the eve of trial.
- TV Programs, Inv. No. 337-TA-886, (E.T. Radcliffe, LLC and Emir Tiar v. The Walt Disney Company and Thunderbird Films). Successfully represented The Walt Disney Company against charges of copyright infringement related to the Mr. Young television show. Won on summary determination of no copyright infringement.
- Integrated Circuit Chips, Inv. No. 337-TA-859 (Realtek Semiconductor Corp. v. LSI Corp. and Seagate Technology). Successfully represented LSI/Seagate in Section 337 investigation alleging patent infringement involving integrated circuits. The Commission found no violation and no domestic industry.
- Sintered Rare Earth Magnets, Inv. No. 337-TA-855 (Hitachi Metals, Ltd., Japan and Hitachi Metals North Carolina, Ltd., v. Beats Electronics, LLC, et al.). Successfully represented respondent Beats—Hitachi withdrew the complaint, which resulted in the termination of Beats from the investigation.
- Food Waste Disposers, Inv. No. 337-TA-838 (Emerson Electric v. Anaheim Manufacturing). Successfully represented Anaheim as a respondent against allegations of multiple unfair acts, including trade dress. Complainant withdrew its complaint after the pre-hearing conference.
- Audiovisual Components, Inv. No. 337-TA-837 (LSI Corp. v. Funai Electric Co., MediaTek, Realtek Semiconductor, et al.). Represented LSI/Agere against Funai and Realtek concerning audiovisual products and semiconductor chips.
- Electronic Devices for Capturing and Transmitting Images, Inv. No. 337-TA-831 (Kodak v. HTC Corp., HTC America, Inc. and Apple). Successfully represented HTC in patent dispute with Kodak.
- Video Displays and Products Using and Containing Same, Inv. No. 337-TA-828 (Mondis Technology Ltd. v. Chimei Innolux Corporation and Innolux Corp.). Successfully represented complainant Mondis. The parties settled the ITC investigation and related district court and foreign litigation based on a payment of royalties to Mondis.
- Electronic Devices for Capturing and Transmitting Images, Inv. No. 337-TA-831 (Kodak v. Apple, HTC, Exedea). Represented respondent HTC.
- Navigation Products, Inv. No. 337-TA-810 (Furuno v. Honeywell & Skyforce Avionics). Represented complainant Furuno.
- GPS Navigation Products, Inv. No. 337-TA-783 (Honeywell v. Furuno). Represented respondent Furuno.
- Protective Cases, Inv. No. 337-TA-780 (Otter Products v. Alibaba, DHgate.com, et al.). Reached a settlement for respondent DHgate.
- Certain Semiconductor Chips and Products Containing Same, Inv. No. 337-TA-753 (Rambus v. LSI Corp., et al). Represented respondents LSI and Seagate against allegations of multi-patent infringement.
- Mobile Devices, Inv. No. 337-TA-750 (Apple v. Motorola). Represented respondent Motorola.
- Liquid Crystal Display Devices, Including Monitors, Televisions, and Modules, and Components Thereof, Inv. No. 337-TA- 741/749 (Thomson Licensing SAS v. MStar Semiconductor, Inc., et al). Represented MStar, a manufacturer of controller chips used in display monitors, against claims of patent infringement.
- Automated Media Library Devices, Inv. No. 337-TA-746 (Overland Storage v. BDT, IBM and Dell). Represented the BDT respondents in a patent-based Section 337 investigation.
- Wireless Communication Devices, Inv. No. 337-TA-745 (Motorola v. Apple). Represented complainant Motorola.
- Underground Cable and Pipe Locators, Inv. No. 337-TA-727 (Radiodetection, Ltd. v. Vivax-Metrotech Corp. and Leidi Supply Ltd.) Successfully represented respondents Vivax-Metrotech and Leidi.
- Electronic Imaging Devices, Inv. No. 337-TA-726 (Flashpoint Technology v. Nokia, RIM, LG, HTC). Represented respondent HTC.
- Portable Electronic Devices, Inv. No. 337-TA-721 (HTC v. Apple). Represented complainant HTC.
- Personal Data and Mobile Communications Devices, Inv. Nos. 337-TA-710 (Apple v. HTC): Represented respondent HTC before Customs and border Protection securing approval for entry of a redesigned cellular telephone, with case eventually settling.
- Liquid Crystal Display Devices, Including Monitors, Televisions, and Modules, Inv. No. 337-TA-741/749 (Thomson Licensing SAS v. Mstar Semiconductor Inc., et al.): Represented respondent Mstar, a manufacturer of controller chips used in display monitors against claims of patent infringement. Case decided in favor of Mstar.
- Semiconductor Chips with Minimized Chip Package Size, Inv. Nos. 337-TA-605 and 337-TA-649 (Tessera v. ATI Technologies, et al.): Represented complainant Tessera in two investigations involving patents on seminal technology in modern integrated circuit manufacture. These related cases were brought against numerous chip manufacturers and package assemblers. In the 605 investigation, the Commission found that every respondent, including industry leaders like Qualcomm, Motorola, and ST Micro, violated Section 337 and issued an exclusion order and cease and desist orders prohibiting certain respondents (and their affiliates) from importing and/or selling the infringing chips. Upon issuance of the Commission's decision, Motorola took a license to maintain continued access for its downstream products to the U.S. market. The 649 investigation was dismissed to pursue damages in district court litigation in lieu of the ITC investigation.
- Unified Communication Systems, Inv. No. 337-TA-598 (Microsoft v. Alcatel-Lucent): Represented respondent Alcatel-Lucent in one of its many patent infringement disputes with Microsoft. The Section 337 investigation involved unified communication systems designed to better integrate e-mail, voicemail, scheduling, and other sophisticated communications capabilities. The ITC ruled in Alcatel-Lucent's favor on each asserted patent, finding no violation based on non-infringement and/or patent invalidity.
- Microlithographic Scanners, Inv. No. 337-TA-468 (Nikon Corp. v. ASML): Represented complainant Nikon in a case that settled with the payment to Nikon of $145 million.
- Human Growth Hormones, Inv. No. 337-TA-358 (Genentech v. Novo Nordisk et al.): Represented complainant Genentech in a patent case directed at stopping infringing imports of HgH from competitors trying to enter the U.S. market.
- Optical Waveguide Fibers, Inv. No. 337-TA-189 (Corning v. Sumitomo Electric Industries): Represented respondent Sumitomo Electric in defending against a complaint filed by Corning. The ITC reached a determination of no violation of Section 337.
- DRAMs, Inv. No. 337-TA-242 (Texas Instruments v. NEC et al.): Represented respondent NEC in defending a case in which the ITC found no violation of Section 337 by NEC. Eventually, TI and NEC settled.
- Hardware Logic Emulators, Inv. No. 337-TA-383 (Quickturn v. Mentor Graphics et al.): Represented complainant Quickturn in a case in which the ITC found violation of Section 337 and issued an exclusion order against Mentor.
- Set Top Boxes (Interactive Program Guides), Inv. No. 337-TA-454 (Gemstar et al. v. Echostar et al.): Represented respondent Echostar in defending claims of patent infringement. The ITC found in favor of Echostar, finding no violation of Section 337. The case has now settled.
- Flash Memory Devices, Inv. No. 337-TA-552 (Toshiba v. Hynix)
AND Flash Memory Devices, Inv. No. 337-TA-553 (Hynix v. Toshiba): Currently represent complainant Toshiba in its investigation against respondent Hynix for infringement of its patents. Also represent Toshiba as a respondent in a retaliatory investigation commenced thereafter by Hynix. Evidentiary hearings were recently concluded in both investigations.
- Display Controllers and Products Containing Same, Inv. No. 337-TA-481/491 (Enforcement) (Genesis Microchip v. MStar Semiconductor, et al.): Currently represent respondent MStar Semiconductor in an enforcement proceeding commenced by Genesis.
- Signature Capture Transaction Devices, Inv. No. 337-TA-504 (NCR v. Ingenico, et al.): Represented complainant NCR in an action involving infringement of NCR's patents covering point of sale terminals and helped NCR secure a favorable settlement.
- Universal Transmitters for Garage Door Openers, Inv. No. 337-TA-497 (Chamberlain v. Skylink Technologies, et al.): Assisted respondent Skylink secure a favorable summary determination on the merits that it had not violated Section 337 by defeating Chamberlain's assertion that Skylink had violated the Digital Millennium Copyright Act (DMCA). The investigation was the first at the ITC to involve the DMCA.
- Semiconductor Memory Devices, Inv. No. 337-TA-470 (Mosel Vitelic v. Hitachi): Represented Mosel Vitelic, a Taiwanese company, as a complainant against Hitachi Corp., with the case ending in an early settlement favorable to Mosel Vitelic.
- Set Top Boxes (Interactive TV Guide), Inv. No. 337-TA-454 (Gemstar et al. v. Echostar et al.): Represented respondent Echostar in defending claims of infringement and in asserting a defense of patent misuse in one of the ITC's largest Section 337 cases. The ITC found in favor of our client, Echostar, deciding not to find a violation of Section 337.
- Excimer Laser Systems, Inv. No. 337-TA-419 (VISX v. Nidek): Successfully represented respondent Nidek against charges of infringement by VISX related to equipment used for corrective laser eye surgery. The ITC found no violation of Section 337 on multiple grounds. The press widely reported a sharp drop in VISX's share price after the ITC's decision.
- Disposable Cameras (Lens-Fitted-Film Packages), Inv. No. 337-TA-406 (Fuji Photo Film v. Achiever, et al.): Represented Fuji against imports from multiple sources, primarily located in China, securing a general exclusion order.
- Hardware Logic Emulators, Inv. No. 337-TA-383 (Quickturn v. Mentor Graphics et al.): Successfully represented complainant Quickturn in a case in which the ITC found a violation of Section 337 and issued an exclusion order against Mentor. The case set precedent for some of the novel remedial provisions adopted.
- Burn Beds (Fluidized Supporting Apparatus), Inv. No. 337-TA-182/188 (Support Systems Int'l v. UHI Corp.): Secured a preliminary determination of violation for Support Systems (337-TA-182), while simultaneously successfully defending against charge of infringement by UHI in a counter 337 action (337-TA-188). The case settled very favorably for Support Systems.
- Antibody Assays (Abbott Labs v Tosoh Medics, (N.D. Ill.)): Successfully represented defendant Tosoh Medics against claims of infringement by Abbott in a district court case related to technology for antibody assays. Abbott withdrew the complaint after validity problems were uncovered in discovery.