Robert Gunther is a partner in the firm's Litigation/Controversy Department, and a member of the Intellectual Property Litigation Practice Group. He joined the firm in 2007. Mr. Gunther has extensive experience representing technology and pharmaceutical clients in intellectual property litigation at both the trial and appellate level.
Practice
Mr. Gunther has successfully litigated patent and other intellectual property cases before numerous federal district courts and arbitration tribunals. He has also argued appeals before the US Court of Appeals for the Federal Circuit and litigated patent disputes before the US International Trade Commission. He has handled cases involving an array of technologies, including biotechnology, pharmaceuticals, medical devices, petrochemical processes, computer hardware and software, telecommunications and networking, video game and graphic display hardware and software, optical discs and consumer products, among others. His intellectual property clients have included AOL, Abbott Laboratories, Affymetrix, C-COR (formerly nCUBE), Chugai Pharmaceutical, Hologic, Mentor Graphics, Nintendo, Playtex Products, QinetiQ, Roche Diagnostics, Sumitomo Electric and WebMD.
Prior to joining WilmerHale, Mr. Gunther was vice chair of the Global Litigation Department of Latham & Watkins, LLP, where he also previously served as co-chair of the Global Intellectual Property, Media and Technology Group.
Representative Federal Circuit Experience
- C-COR, Inc. (formerly nCUBE) v. SeaChange, Int'l, 436 F.3d 1317 (Fed. Cir. 2006) (argued): affirming district court judgment that SeaChange willfully infringed C-COR's patent on a flexible video on demand server architecture. Also handled the trial of this case.
- SeaChange, Int'l v. C-COR, Inc. (formerly nCUBE), 413 F.3d 1361 (Fed. Cir. 2005) (argued): reversing district court judgment of infringement of SeaChange's patent by C-COR and finding no infringement as a matter of law.
- Playtex Products, Inc. v. Proctor & Gamble Co., 400 F.3d 901 (Fed. Cir. 2005) (argued): reversing and vacating summary judgment of non-infringement of Playtex's patent on a popular consumer product.
- Jacobs v. Nintendo of America Inc., 370 F.3d 1097 (Fed. Cir. 2004) (argued): affirming summary judgment of non-infringement by Nintendo on implied license grounds of patent relating to a tilt-sensitive control device.
- Wang Labs, Inc. v. America Online, Inc., 197 F.3d 1377 (Fed. Cir. 1999) (argued): affirming summary judgment of non-infringement by AOL of patent that, according to Wang, represented the invention of the Internet browser.
Representative Patent Litigation Experience
- Abbott Laboratories v. Centocor (D. Mass.): Counsel for Abbott in this case asserting infringement of two Abbott patents relating to antibody technology.
- Apotex v. Cephalon (E.D. Pa.): Counsel for Cephalon in this ANDA litigation asserting patent infringement claims against Apotex’s proposed generic version of Provigil.®
- Ethicon Endo-Surgery v. Hologic, Inc. (S.D. Ohio): Counsel for Hologic in this case involving multiple patents relating to breast biopsy devices. Case settled on favorable terms while jury was deliberating following three week trial.
- Contour Design, Inc. v. Chance Mold, Ltd. (D.N.H.): Obtained preliminary injunction preventing defendant from making and selling ergonomic mouse products incorporating Contour’s proprietary design information.
- Polymer Technology Systems v. Roche (S.D. Ind.): Counsel for Roche in this declaratory judgment case alleging non-infringement and invalidity of a Roche patent relating to diabetes blood testing meters. Obtained complete dismissal of case in favor of German DIS arbitration initiated by Roche against PTS.
- Counsel for Respondent in multi-patent case in U.S.I.T.C. involving digital camera technology. Case settled favorably following hearing in October, 2009.
- In re Hardware Emulation Systems (U.S.I.T.C.): Counsel for Mentor Graphics. Obtained advisory opinion that Mentor's remote access to hardware emulation devices located outside the US did not violate a prior ITC exclusion order.
- Roche Diagnostics v. Enzo Biochem; Affymetrix v. Enzo Biochem (S.D.N.Y): Counsel for Roche and Affymetrix in ongoing declaratory judgment actions seeking determinations that Enzo patents relating to nucleic acid labeling reagents are not infringed and invalid. Summary judgment motions are pending following a favorable claim construction ruling.
- Anascape, Ltd. v. Nintendo of America Inc. (E.D. Tex.): Defended Nintendo against claim for patent infringement relating to video game controller technology. Obtained jury verdict of non-infringement relating to controllers for Wii system. Judgment of infringement relating to older generation controllers reversed on appeal and patent held invalid.
Representative Arbitration Experience
- Qiagen v. Roche (ICDR Arbitration): Counsel for Roche in this international arbitration involving claims of breach of patent cross-license relating to HPV. Following trial, Tribunal ruled in favor of Roche on all issues and awarded attorney’s fees. Award confirmed in S.D.N.Y.
- Counsel for Petitioner in ad hoc Swiss arbitrations relating to misappropriation of trade secrets relating to chemical intermediates.
- Counsel for Roche in German DIS arbitration against Polymer Technology Systems relating to claims of breach of a patent license agreement.
Professional Activities
Mr. Gunther is a member of the American Intellectual Property Law Association.
Honors and Awards
- Listed as a leading patent litigator in the 2011 edition of IAM Patent Litigation 250
- Recognized as a leader in intellectual property law in the 2010 and 2011 editions of Chambers USA: America’s Leading Lawyers for Business
- Named to IAM Life Sciences 250 – The World’s Leading Life Sciences Patent Litigators 2010
- Named to the Legal 500 US for intellectual property
- Chosen as a "New York Super Lawyer" for intellectual property litigation (2006-2011)
