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David F. Nickel
Direct: (202) 822-4104
Email: dnickel@fostermurphy.com
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David Nickel focuses his practice on the representation of U.S. and foreign clients in Section 337 proceedings involving unfair trade practices, including patent, trademark and copyright infringement, and misappropriation of trade secrets. For over 10 years, he has represented complainants and respondents based in the United States, Europe, and Asia in more than 40 Section 337 investigations before the United States International Trade Commission (ITC) and the United States Court of Appeals for the Federal Circuit. Mr. Nickel also engages in enforcement issues related to Section 337 exclusion orders before United States Customs and Border Protection. In addition, Mr. Nickel has experience in federal district court patent infringement and misappropriation of trade secrets matters and appellate practice in customs classification.

Rankings and Recognition

  • Chambers Global: International Trade: Intellectual Property (Section 337) (United States), 2011
     
  • Chambers USA: International Trade: Intellectual Property (Section 337) (National), 2010

  • Member, Executive Committee, International Trade Commission Trial Lawyers Association
     
  • Member, American Bar Association

Bar Admissions

  • District of Columbia
     
  • Maryland

Court Admissions

  • United States Court of Appeals for the Federal Circuit
     
  • United States Court of Appeals for the Ninth Circuit
     
  • United States District Court for the District of Columbia

Education

  • J.D., The George Washington University School of Law, 2000
     
  • B.A., Princeton University, 1997

Representative Engagements

  • Certain Semiconductor Chips and Products Containing Same, Inv. No. 337-TA-753 (Rambus v. LSI Corp., et al) Representing Respondents LSI and Seagate in a multi-patent infringement Section 337 investigation brought by Rambus. The investigation is currently in the discovery phase.
     
  • Certain Automated Library Devices, Inv. No. 337-TA-746 (Overland Storage v. BDT, IBM and Dell) Representing the BDT Respondents, one of the largest manufacturers of automated library devices, in a patent-based Section 337 investigation brought by a competitor, Overland Storage. The investigation is currently in the discovery phase.
     
  • 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) Representing MStar, a manufacturer of controller chips used in display monitors against claims of patent infringement. The investigation is currently in the discovery phase.
     
  • Underground Cable and Pipe Locators, Inv. No. 337-TA-727 (Radiodetection, Ltd. v. Vivax-Metrotech Corp. and Leidi Supply Ltd.) Successfully represented the Respondents Vivax-Metrotech and Leidi, manufacturers and sellers of underground cable and pipe locators, in a patent-based Section 337 investigation. Our clients obtained a very favorable settlement agreement, which included dismissal of a pending parallel district court action.
     
  • DC-DC Controllers and Products Containing the Same, Inv. No. 337-TA-698, (Richtek Technology v. Advanced Micro Devices, uPI Semiconductor et al.) Represented Respondents MSI Corp. and Micro-Star International in a patent infringement and misappropriation of trade secrets Section 337 investigation. MSI obtained a very favorable settlement agreement that included the dismissal of pending parallel and related infringement litigation.
     
  • Bulk Welding Wire Containers and Components Thereof and Welding Wire, Inv. No. 337-TA-686. (Lincoln Global v. Kiswel Ltd., et al) Represented Respondent Kiswel Ltd. in a Section 337 investigation filed by Lincoln Electric and Lincoln Global alleging patent infringement of several patents relating to bulk welding wire or containers of same. Kiswel obtained a favorable settlement agreement that included the dismissal of pending parallel and related infringement litigation in the Northern District of Ohio.
     
  • Adjustable Keyboard Support Systems, Inv. No. 337-TA-670 (Humanscale Corp. v. CompX International and Waterloo Furniture Components Limited). Successfully represented Respondent CompX in an investigation involving competitors with pending cross-litigation in district court. Following a largely favorable ruling from the Chief Administrative Law Judge ("CALJ"), the International Trade Commission ruled entirely in favor of CompX, finding no violation based on non-infringement of the asserted claims and ruling that the claims were invalid.
     
  • 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.
     
  • Personal Computers and Digital Display Devices, Inv. No. 337-TA-606 (Hewlett Packard v. Acer, Inc. et al.): Represented respondent Acer against Hewlett-Packard in a major patent dispute between two of the top sellers of personal computers in the United States. Acer, whose entire line of personal computers and monitors was at risk in this investigation, obtained a favorable settlement.
     
  • Semiconductor Chips with Minimized Chip Package Size, Inv. Nos. 337-TA-605 and 337-TA-649 (Tessera v. ATI Technologies, et al.): Representing 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.
     
  • Bulk Welding Wire, Inv. No. 337-TA-686 (Lincoln Electric v. Kiswel Ltd. et al.): Represented respondent Kiswel Ltd. in a multi-patent case brought by Lincoln against several welding wire manufacturers. Kiswel was terminated based on a settlement agreement that included dismissal of pending parallel and separate district court actions.
     
  • Sucralose, Inv. No. 337-TA-604 (Tate & Lyle v. various foreign companies): Represented complainant Tate & Lyle in a multiple patent-based Section 337 investigation against several foreign sweetener manufacturers accused of violating Tate & Lyle's patents covering the process for making sucralose. The ITC found a violation against certain defaulting respondents and issued limited exclusion orders.
     
  • Endodontic Instruments, Inv. No. 337-TA-610 (Dentsply International v. Guidance Endodontics): Represented complainant Dentsply in a patent-based Section 337 investigation concerning endodontic instruments used to perform root canals.
     
  • GPS Chips, Inv. No. 337-TA-596 and 337-TA-602 (SiRF Technologies v. Global Locate): Represented SiRF as a complainant in an investigation involving integrated circuit technology for global positioning systems and also as a respondent in a counter-investigation involving similar basic technology.
     
  • Portable Digital Media Players, Inv. Nos. 337-TA-573 and 337-TA-576 (Creative Technology v. Apple Computer): Represented Apple as complainant and respondent in a companion Section 337 investigation that successfully resulted in global settlement of all pending matters.
     
  • Products and Pharmaceutical Compositions Containing Recombinant Human Erythropoietin, Inv. No 337-TA-568 (Amgen v. Hoffman La Roche): Represented respondent Hoffman La Roche in a Section 337 investigation regarding erythropoietin (EPO).
     
  • Ink Cartridges and Components Thereof, Inv. No. 337-TA-565 (Seiko Epson Corp. v. Ninestar Technologies, et al.): Represented complainant Seiko Epson and its related entities in an 11 patent-based Section 337 investigation against numerous foreign respondents. The ITC issued general exclusion order.
     
  • Rubber Antidegradants, Inv. No. 337-TA-533 (Flexsys America v. Korea Kumho Petrochemical Co., et al.): Represented respondent KKPC in a Section 337 investigation regarding rubber antidegradants. The ITC determined that KKPC's accused products did not violate Section 337.
     
  • Automotive Fuel Caps and Components Thereof, Inv. No. 337-TA-532 (Stant v. Gerdes): Represented respondent Gerdes in a patent-based Section 337 investigation successfully resulting in withdrawal of complaint on the eve of TEO trial.
     
  • Injectable Implant Compositions, Inv. No. 337-TA-515 (Inamed v. Q-Med Aktiebolag, et al.): Represented the foreign manufacturer of a dermal filler and its U.S. distributors, Medicis and McKesson, in a patent-based Section 337 investigation successfully resulting in withdrawal of complaint.
     
  • Audio Digital-to-Analog Converters and Products Containing Same, Inv. No. 337-TA-499 (Cirrus Logic v. Wolfson): Represented complainant Cirrus Logic in a multiple patent-based investigation. The ITC found respondent Wolfson in violation of one of the asserted patents and issued limited exclusion and cease and desist orders.
     
  • Zero-Mercury-Added Alkaline Batteries, Components Thereof and Products Containing Same, Inv. No. 337-TA-493 (Energizer v. various battery manufacturers): Represented complainants Energizer and Eveready in a patent-based Section 337 investigation against 26 U.S. and foreign battery manufacturers and distributors.
     
  • Compact Disc and DVD Holders, Inv. No. 337-TA-482 (DuBois Ltd. v. Viva Magnetics Limited, et al.): Represented certain respondents in this design-patent based Section 337 investigation that successfully resulted in a settlement for each client.
     
  • Radios and Components Thereof, Inv. No. 337-TA-476 (Bose Corp. v. Sun Coast Merchandise Corp.): Represented respondent Sun Coast in a trademark-based Section 337 investigation that successfully resulted in a settlement before trial.
     
  • Sortation Systems, Components Thereof and Products Containing Same, Inv. No. 337-TA-460 (Rapistan Dematic v. Vanderlande): Represented Rapistan, a Siemens company, in a Section 337 investigation involving sortation systems. The Federal Circuit upheld the ITC's finding of violation and issuance of a limited exclusion order.
     
  • Gel-Filled Wrist Rests, Inv. No. 337-TA-456 (3M v. Velo Enterprise Co., Inc., et al.): Represented respondents in a patent-based Section 337 investigation. The Federal Circuit upheld the ITC's determination that there was no violation of Section 337 because 3M failed to meet the domestic industry requirement.
     
  • Set-Top Boxes, Inv. No. 337-TA-454 (Gemstar v. Scientific-Atlanta, Inc. et al.): Represented Scientific-Atlanta, Inc. in a patent-based Section 337 investigation resulting in favorable settlement.
     
  • Integrated Circuits, Processes for Making Same and Products Containing Same, Inv. No. 337-TA-450 (UMC v. Silicon Integrated Systems Corp.): Represented respondent SIS in a patent-based Section 337 investigation resulting in favorable settlement.

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