Sean C. CunninghamPartner
US Chair, Patent Litigation
Sean Cunningham is a Chambers-ranked first-chair patent trial lawyer for some of the world’s largest technology and medical device companies. He has nearly three decades of experience handling patent cases through trial in federal district courts and in the International Trade Commission (ITC).
Sean’s decades of experience include more than 25 patent trials in the ITC, Delaware, Texas, California, New York, Virginia, Illinois, and Arizona. His most recent experience includes the defense of two global technology companies in coordinated patent assertions in multiple ITC proceedings, district court cases, and IPR proceedings. Sean also was the first-chair trial lawyer in two jury trials in the past three years for a global consumer products company, and he recently represented Microsoft, Lenovo, Motorola, and others in two co-pending ITC investigations and additional district court cases. Since the year 2000, Sean has handled at least 40 ITC cases, most as lead counsel, and is frequently sought after to take over cases from other firms for trial. Sean’s experience also includes the jury trial of the Cornell v. Hewlett-Packard case before then-Federal Circuit Court of Appeals Chief Judge Randall Rader sitting by designation, which resulted in a landmark post-trial ruling on patent damages in favor of his client. Sean’s work has been cited on the floor of the US Senate as spearheading meaningful patent damages reform in the US.
Chambers quotes clients as saying Sean is "a classic litigator – he’s informative in his presentation, has a good pace and tone, and can really hold a room." Sean also has been recognized by Legal 500, which quotes clients as saying he "brings logic, practical advice, and in-depth analysis. He cares about getting the best result for clients and clearly knows how to make a good argument in front of any audience."
- Maxell v. Lenovo Group Ltd., Lenovo (United States) Inc. and Motorola Mobility LLC – USITC; Western District of Texas; Northern District of Illinois. Sean was lead counsel for Lenovo and Motorola Mobility in a wide-ranging set of patent disputes in multiple ITC proceedings, multiple district court actions, and multiple IPR proceedings. Sean and his team were able to obtain a favorable ruling for Lenovo and Motorola dismissing the Western District of Texas litigation for improper venue and transferring the case to the Northern District of Illinois, Motorola’s home venue.
- Cleveland Medical v. ResMed Inc. & ResMed Corp. – District of Delaware; Southern District of California. Sean is lead counsel for global medical device manufacturer ResMed in a pair of district actions involving sleep apnea treatment devices and ventilators and nine total asserted patents, including a declaratory relief action filed in San Diego by ResMed Corp.
- Intellectual Ventures v. Hewlett Packard Enterprise Co. – Western District of Texas; District of Delaware. Sean represented Hewlett Packard Enterprise in a series of five district court cases in the Western District of Texas and a declaratory relief action filed by HPE in the District of Delaware, which resulted in a favorable opinion in Delaware on subject matter jurisdiction in declaratory relief actions.
- Fortinet v. Sophos and Sophos v. Fortinet – District of Delaware; Northern District of California. Sean was lead counsel for Sophos Ltd. and Sophos Inc. in a wide-ranging patent dispute between competitors in the anti-malware industry, which has spawned two district court patent suits and one arbitration. The parties are litigating a total of 23 patents, most of which are directed to various aspects of malware detection technology.
- Overland Storage v. IBM, Dell, BDT, et al. – USITC; Southern District of California. Sean was lead counsel for Overland Storage in a patent offensive against IBM, Dell, BDT and others in the ITC and district court in San Diego on two patents related to digital storage technology. Sean first-chaired an ITC trial in 2011, resulting in a settlement by IBM and Dell before the Initial Determination issued. The district court litigation against the remaining defendants is stayed pending the resolution of an inter partes review of one of the patents.
- Cornell v. Hewlett-Packard – Northern District of New York. Sean represented HP in a litigation filed by Cornell University involving a patent related to instruction issuance in superscalar processors. The case was tried to a jury in May 2008, resulting in a finding of infringement and validity, but no willful infringement. On post-trial motions, Federal Circuit Chief Judge Randall Rader (sitting by designation as the trial judge) issued a landmark ruling in HP's favor (609 F.Supp.2d 279), reducing the verdict by two-thirds and clarifying the law on patent damages and the Entire Market Value Rule.
- Hewlett-Packard v. Acer Computer – USITC; Western District of Wisconsin; Eastern District of Texas. Represented HP in a multi-jurisdictional patent enforcement effort involving five US lawsuits in three venues and a total of 26 patents (15 asserted by HP; 11 by Acer). Sean tried the first of two lawsuits in the ITC, and the litigation settled while the ITC's decision was pending. By the time of the settlement, HP had successfully disposed of four of the 11 asserted Acer patents.
- Motorola Mobility v. Research in Motion – USITC; Northern District of Texas; United Kingdom. Obtained a settlement on behalf of Motorola in a patent offensive against Research in Motion (RIM). The offensive involved a 27-patent case in the Northern District of Texas (Dallas) (17 Motorola patents and 10 RIM patents), three separate lawsuits in the UK involving a total of five UK patents, and an ITC investigation. One UK case went to trial in the first quarter of 2010, and the second was scheduled to begin trial in June 2010. On the eve of the second UK trial, the parties reached a global settlement. The patents asserted by Motorola involved system-level technologies implemented by wireless handheld devices and various features of the handheld devices themselves.
- Hewlett-Packard Company v. Gateway & eMachines – United States International Trade Commission; Southern District of California; Eastern District of Texas; Southern District of Texas. Managed multi-jurisdictional patent offensive against Gateway involving 34 patents (23 HP patents and 11 Gateway patents) in four different lawsuits. The first ITC trial resulted in a finding of infringement against Gateway on two HP patents, while the second ITC trial resulted in a finding of invalidity and inequitable conduct on a single Gateway patent. Following those trials, the litigation settled.
- J.D., University of Kansas School of Law 1994
Order of the Coif
Editor, Kansas Law Review
- B.A., English, University of Kansas 1991
Phi Beta Kappa
- Chambers Global
- Band 5, Nationwide International Trade: Intellectual Property (Section 337) (2023)
- Chambers USA
- Band 5, Nationwide International Trade: Intellectual Property (Section 337) (2022 - 2023)
- The Legal 500 United States
- Recommended, Patent Litigation: Full Coverage (2019 - 2023)
- Recommended, Patents: Litigation (International Trade Commission) (2017 - 2023)
- Author, "Perfect Model? How the US Federal Circuit Advisory Council’s New Model Order Might Help to Reduce the Spiraling Costs of Patent Litigation," Intellectual Property Magazine (October 2013)
- Author, "A New Breed of Damages Trial," DLA Piper Intellectual Property and Technology News (March 2012)
- Author, "Filing and Defending Patents in Different Jurisdictions," Intellectual Property Management Handbook of Best Practices (Centre for the Management of Intellectual Property in Health and Research Development, March 2007)
- Panel Moderator, "Where the Law Stands on Proving Domestic Industry," American Conference Institute 6th Expert Forum on ITC Litigation & Enforcement (February 2014)
- Participant, Federal Circuit Advisory Council Committee on Focusing Patent Litigation, which created "A Model Order Limiting Excess Patent Claims and Prior Art," (July 2013)
- Panel Moderator, "Corporate Approaches to ITC Litigation – In-House Counsel Views on the Costs and Benefits of Pursuing a Section 337 Investigation," American Conference Institute 4th Expert Forum on ITC Litigation & Enforcement (February 2012)
- Presenter, "Focus on Asia – Confronting the Unique Challenges Posed by ITC Litigation with Foreign Parties," American Conference Institute 3rd Expert Forum on ITC Litigation & Enforcement (February 2011)
- Presenter, "Master Class on Enforcement of ITC Exclusion Orders," American Conference Institute 2nd Expert Forum on ITC Litigation & Enforcement (February 2010)
- Presenter, "Advanced Use of Graphics at Jury Trials—and Well Beforehand," Chicago Bar Association Seminar on Patent Litigation (January 2005)
- "Tech Giants Urge Justices To End IP Damages 'Loophole'," Law360 (February 13, 2020)
- "34 DLA Piper lawyers in nine countries ranked among The World's Leading Patent Professionals," DLA Piper (October 30, 2019)
Memberships And Affiliations
- Federal Circuit Bar Association
- American Intellectual Property Law Association
- Intellectual Property Section, California Bar Association