David J. Silbert
Partner

dsilbert@keker.com
Tel. (415) 676-2261

Education

UC Hastings College of the Law, J.D., magna cum laude, 1994

Georgetown University, B.A., 1990

Clerkships

Hon. Judith N. Keep
Chief Judge, U.S. District Court, Southern District of California, 1995-1996

Bar Admissions

California

David J. Silbert

David Silbert has won or favorably resolved cases in state and federal courts across the country. Mr. Silbert has successfully represented plaintiffs and defendants in patent cases involving cable television, semiconductors, medical devices, recombinant DNA, and numerous other technologies. He has defended several national law firms and their partners against claims of malpractice, and represented individuals in government and internal investigations.

Cases of Note

Summit 6 LLC v. Twitter, Inc.: We represented Twitter in a patent-infringement suit brought by Summit 6 LLC. In prior cases in the same court, Summit 6 had obtained large settlements and won an $18 million judgment against Samsung. Before the close of discovery, we secured a walk-away settlement for Twitter, with Twitter paying nothing.

Bascom Research, LLC v. LinkedIn Corporation: We represented LinkedIn in a patent-infringement suit filed by Bascom Research. We obtained a stay of discovery pending the Supreme Court’s decision in Alice, then won summary judgment invalidating all asserted claims. The victory was chosen by The Daily Journal as one of the year's "Top Defense Verdicts."

United States ex rel. Robert C. Baker v. Community Health Systems, Inc., et al.: We served as lead counsel for Relator Robert Baker in a qui tam False Claims Act case against Community Health Systems. This case alleged the defendants manipulated the Medicaid funding program by a scheme which resulted in the illegal receipt of federally funded Medicaid payments. Our client sought the maximum amount allowed to a qui tam plaintiff and the United States sought to recover damages and civil penalties from the defendants, arising from false and/or fraudulent statements, records, and claims of FCA violations. Community Health Systems eventually agreed to end the litigation with a settlement of $75 million.

VS Technologies LLC v. Twitter Inc.: By winning a defense verdict in this federal jury trial, we protected Twitter Inc. from a patent infringement suit and $40 million damages claim. Virginia-based VS Technologies had obtained a patent for “an interactive virtual community of famous people,” and sued Twitter over its virtual community technology. During the six-day trial, we argued that Twitter's Browse Interests feature did not infringe the terms of the patent and that in fact, the patent was invalid. The jury agreed, and found Twitter not liable for patent infringement.

Acacia Media Technology v. Comcast Cable Communications, LLC: We defended Comcast Cable Communications, LLC as part of a large joint-defense group handling patent infringement claims related to video-on-demand services. The plaintiff, Acacia Media Technology, sought hundreds of millions in royalties from more than 40 cable TV, satellite TV, and Internet streaming companies, alleging its patents covered virtually all transmission of compressed digital video or audio files. After extensive claim-construction proceedings, U.S. District Judge James Ware held that the patents were invalid and granted summary judgment for our client and the other defendants. The U.S. Circuit Court of Appeals for the Federal Circuit affirmed that judgment.

Comcast Cable Communications, LLC v. Finisar Corporation: We won summary judgment dismissing Sunnyvale-based Finisar Corporation’s patent infringement claim against Comcast Cable Communications, LLC. We first convinced U.S. District Court Judge William Alsup to cut potential damages from $590 million to $140 million, and later to invalidate the data transmission patent at issue. Finisar appealed, however the U.S. Court of Appeals for the Federal Circuit affirmed the district court’s ruling.

Plaintiff v. Telecommunications Company: We won a complete victory in a multi-million dollar contract dispute involving information-technology services.

Televisa v. Univision Communications: We represented Univision, the country's leading Spanish language television network, in a breach of contract jury trial. Televisa, a Mexican multimedia conglomerate which supplied Univision with its most popular Spanish language programs, attempted to terminate a long-term exclusive licensing agreement and sought more than $100 million in damages. The case was settled during trial on favorable terms. We also represented Univision in a bench trial which sought declaratory judgment to prevent Televisa from broadcasting over the Internet the same highly popular programs that it exclusively licensed to Univision. We won a complete victory at trial.

United States v. McKesson Corporation: We won a complete defense judgment in favor of McKesson after a month-long trial of a qui tam action alleging violations of the False Claims Act and Anti-Kickback Statue. The trial victory allowed McKesson to avoid paying nearly $1 billion in fines, and to avoid the collateral penalties that government agencies can impose on companies found to have paid illegal kickbacks. The Justice Department’s complaint charged McKesson with paying kickbacks to a nursing home operator in the form of underpriced services, and with submitting “legally false claims” to the government. After we had the whistleblower dismissed, a key victory, we then won dismissal of related claims that the nursing home’s supplier subsidiary failed to comply with Medicare supplier standards. With the case’s scope significantly narrowed, we lead our client through a bench trial which featured 24 witnesses, hundreds of exhibits and post-trial briefing. The judge ruled in our client’s favor, vindicating McKesson and its employees. This victory was listed by the National Law Journal as one of the year's five most significant trial wins.

Department of Justice v. Major League Baseball Players Association: We successfully represented the Major League Baseball Players Association in its high-profile battle with the U.S. government. In August 2009, an en banc panel of the U.S. Circuit Court of Appeal for the Ninth Circuit ruled that federal investigators unlawfully seized drug-testing records of more than 100 athletes. In September 2010, the court issued a revised opinion that upheld its ruling.

Presentations

"The State of IP Across Industry Verticals," IP Value Summit, 2015

Awards and Honors

  • Top Defense Verdict, The Daily Journal, 2016. We used the U.S. Supreme Court decision in Alice Corp. Pty. Ltd. v. CLS Bank International to prove that patents in lawsuits against Facebook Inc. and LinkedIn Corp. were invalid based on subject matter ineligibility.
  • Top 75 IP Litigators, The Daily Journal, 2011, 2016
  • Listed in The Best Lawyers in America for Intellectual Property Litigation and Patent Litigation, 2012 - present
  • World’s Leading Patent Practitioners, IAM Patent 1000, 2015
  • Winning Profiles:  Keker Team Won a $1 Billion Bet for McKesson, National Law Journal, 2013. Defeated a high-stakes false claims act case for McKesson.
  • Recommended Attorney, Intellectual Property - Patent litigation, The Legal 500 U.S., 2011 - 2012
  • Northern California Super Lawyer, Business Litigation, 2005-present
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