Litigator of the Week: Peter Bicks of Orrick
Peter Bicks and his colleagues at Orrick Herrington & Sutcliffe have spent the last few months helping two very different companies — Dow AgroSciences and Dish Network Corp. — defeat legal challenges to new marquee products. Dow beat back claims that its Enlist E3 technology, which allows crops like soybeans and cotton to withstand a wide range of wide-killing herbicides, infringes on patents owned by rival Bayer CropScience. And with Bicks's help, Dish remains undefeated in copyright litigation over its commercial-zapping Hopper DVR.
Bicks's latest win for Dow against Bayer came on Monday. As we reported, U.S. District Judge Renee Marie Bumb, sitting by designation in Delaware, dismissed claims that Enlist E3 infringes on seven Bayer patents. Siding with Bicks, the judge ruled on summary judgment that Dow has a valid sublicense to all seven patents.
By deciding the case on a threshold contract issue, Bumb sidestepped what surely would have been a costly fight over whether Bayer's patents are valid and infringed. But the circumscribed litigation still offered plenty to keep the lawyers busy. In an unusual move, Bumb held a a two-day evidentiary hearing to determine the scope of Dow's licensing rights. The witnesses included Iowa Supreme Court Justice Edward Mansfield, who prepared the relevant sublicense agreement five years ago when he was in private practice. There was also testimony from two experts on U.K. law, which controlled the relevant agreements.
Monday's ruling comes on the heels of another win for Dow against Bayer. Siding with Bicks and his partner Mark Davies, the U.S. Court of Appeals for the Federal Circuit ruled on Sept. 23 that Dow doesn't infringe a Bayer patent relating to herbicide resistance. The ruling affirms a September 2012 ruling by Judge Bumb, who had again taken the unusual step of holding mini-trial in the case — this time to construe the claims of Bayer's patent. During the weeklong Markman hearing, Bayer's lawyers at Milbank Tweed Hadley & McCloy called to the witness stand an esteemed enzymologist. Bicks, a trial lawyer by trade, seemed to get the better of the witness on cross-examination. In Bumb's ruling, she called part of the expert's claim construction argument "conclusory and at odds with the plain language of the claim itself."
Dow is slated to roll out Enlist E3 soybeans in 2015. While Bayer still has one more patent case pending against Dow, it's looking increasingly unlikely that Dow will have to take out a license to Bayer's patents. Dow spent about 14 years developing Enlist E3, which makes crops resistant to the common herbicides 2,4-D, glyphosate, and glufosinate.
Bicks and his cohorts are on a similar winning streak for Dish in its legal battle with Fox Broadcasting Co. On behalf of all broadcasters, Fox wants to shut down a feature on Dish's Hopper DVR called AutoHop, which allows viewers to automatically skip commercials during primetime television broadcasts. The broadcasters allege that the feature infringes their copyrights. On Sept. 18, U.S. District Judge Laura Taylor Swaine in Manhattan denied Fox's request for a preliminary injunction. Swaine followed in the footsteps of the U.S. Court of Appeals for the Ninth Circuit, which in July affirmed a similar ruling by a judge in Los Angeles. Bicks is representing Dish along with Orrick partners Annette Hurst and E. Joshua Rosenkrantz.