David F. Nickel

Direct: (202) 822-4104
Email: dnickel@fostermurphy.com

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 15 years, he has represented complainants and respondents based in the United States, Europe, and Asia in more than 85 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.

David is the Past President of the International Trade Commission Trial Lawyers Association.

Rankings & Recognition

  • Chambers Global: International Trade: Intellectual Property (Section 337) (United States), 2011-2019
  • Chambers USA: International Trade: Intellectual Property (Section 337) (National), 2010-2018
  • Super Lawyers (Rising Star): 2013-2018
  • Past President, International Trade Commission Trial Lawyers Association

Court Admissions

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

Bar Admissions

  • District of Columbia
  • Maryland

Education

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

Representative Engagements

  • Botulinum Toxin Products, Inv. No. 337-TA-1145 (Allergan and Medytox v. Daewoong).  Representing respondent Daewoong.
  • Radio Frequency Micro-Needle Dermatological Treatment Devices, Inv. No. 337-TA-1112 (Syneron v. Lutronic, et. al.) Represented the Lutronic respondents against allegations of patent infringement.  Favorable settlement before hearing.
  • LED Lighting Devices, Inv. No. 337-TA-1081(Phillips v. WAC, et. al.) Represented the WAC respondents against allegations of patent infringement.  Settled favorably during the discovery phase.
  • Digital Television Set-Top Boxes, Inv. No. 337-TA-1041 (OpenTV, et al. v. Comcast, ARRIS, et. al.). Represented the Comcast respondents against allegations of patent infringement.  Complainants withdrew the complaint and investigation was terminated during discovery phase.
  • Recombinant Factor IX Products, Inv. No. 337-TA-1066 (Bioverativ v. CSL Behring). Represented complainant Bioverativ asserting patent infringement.
  • Digital Television Set-Top Boxes, Inv. No. 337-TA-1041 (OpenTV, et al. v. Comcast, et al.). Represented respondents Comcast against allegations of patent infringement. Complainant withdrew the complaint during the discovery phase.
  • Cell Phone Holder for Vehicles, Inv. No. 337-TA-1028 (Nite Ize v. numerous respondents). Representing complainant Nite Ize in an investigation alleging patent infringement. The Administrative Law Judge found in favor of Nite Ize and recommended a General Exclusion Order and Limited Exclusion Orders against multiple respondents. The Investigation is currently pending before the Commission.
  • Magnetic Data Storage Tapes, Inv. No. 337-TA-1012 (Fujifilm v. Sony).  Magnetic Tape Cartridges, Inv. No. 337-TA-1036 (Sony v. Fujifilm).  Magnetic Tape Cartridges, Inv. No. 337-TA-1058 (Sony v. Fujifilm).  Magnetic Tape Cartridges, Inv. No. 337-TA-1076 (Fujifilm v. Sony).  Represented Sony before the Commission, Customs, and the Federal Circuit in a series of investigations and counter-investigations involving allegations of patent infringement. The investigations were resolved in a global settlement.
  • Industrial Control System Software, Inv. No. 337-TA-1020 (Rockwell Automation v. 3S-Smart System Software, et al.). Represented complainant Rockwell in patent infringement suit. Rockwell obtained a favorable settlement agreement early in the investigation.
  • Semiconductor Devices, Inv. No. 337-TA-1010 (Tessera v. Broadcom, et al.). Representing Broadcom and several other respondents against allegations of patent infringement.
  • Carbon and Alloy Steel, Inv. No. 337-TA-1002 (U.S. Steel against the Chinese Steel Industry). Successfully represented respondent Masteel Group against allegations of antitrust violations and false designation of origin.  No violation.
  • Recombinant Factor VIII Products, Inv. No. 337-TA-956 (Baxter Healthcare v. Novo Nordisk A/S and Novo Nordisk Inc.). Represented Novo Nordisk against claims of patent infringement. The parties settled after a favorable Initial Determination of no violation.
  • Certain Protective Cases for Electronic Devices and Components Thereof, Inv. No. 337-TA-955: Successfully represented Respondent Tech21 U.K. Limited in patent infringement allegations brought by Otter Products, LLC.; Otter withdrew the complaint and terminated the investigation.
  • Certain Personal Transporters, Components Thereof and Manuals Therefore, Inv. No. 337-TA-935 (Segway vs. numerous respondents). Successfully represented Segway and DEKA in a patent and copyright infringement investigation against numerous manufacturers and distributors of personal transportation devices; obtained a general exclusion order.
  • Certain Hemostatic Products and Components Thereof, Inv. No. 337-TA-913 (Baxter v. J&J, Ethicon, Ferrosan and PCI). Represented Respondents Ferrosan in allegations of patent infringement on a medical device manufactured by Ferrosan and sold by Ethicon in the United States. The investigation settled after the evidentiary hearing.
  • Certain TV Programs, Literary Works For TV Production And Episode Guides Pertaining To Same, 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 defensive Section 337 investigations against Realtek concerning integrated circuits. No violation was found to exist.
  • Audiovisual Components, Inv. No. 337-TA-837 (LSI Corp. v. Funai Electric Company, Ltd, MediaTek Inc., Realtek Semiconductor Corp. and others). Successfully represented LSI/Agere in offensive Section 337 investigations against Funai and Realtek concerning audiovisual products and semiconductor chips. Following an April 2013 hearing, an initial determination of violation of one patent was issued. Partial settlement after initial determination.
  • Certain Semiconductor Chips and Products Containing Same, Inv. No. 337-TA-753 (Rambus v. LSI Corp., et al)Successfully represented Respondents LSI and Seagate in a multi-patent infringement Section 337 investigation brought by Rambus.
  • Certain Automated Library Devices, Inv. No. 337-TA-746 (Overland Storage v. BDT, IBM and Dell) Successfully represented 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.