Erik B. Fountain

Erik Fountain is a Principal in McKool Smith's Dallas office. Erik’s practice focuses on intellectual property litigation and patent licensing disputes. He has represented companies, as both plaintiffs and defendants, in a variety of fields, including software, cellular, oil field, automotive, and medical device. Erik has significant experience as a stand-up lawyer, having successfully briefed and argued a variety of procedural, discovery, evidentiary, and dispositive motions in venues across the country. He has tried multiple cases to verdict, where he has examined and cross- examined both fact and expert witnesses. Erik has also successfully litigated commercial and intellectual property disputes to final resolution in a variety of private arbitrations.

Erik has considerable experience in patent licensing disputes. In 2019, he was part of a trial team that prevailed in the first-ever breach-of-FRAND jury trial in the Eastern District of Texas. In that same venue, Erik defended a base-station manufacturer against the assertion of more than 20 patents claimed essential to the 4G/LTE wireless standard. Outside of the courtroom, Erik has advised clients as they negotiate licenses to standard-essential-patent portfolios in a variety of technical fields.

Erik also has a track record of successfully litigating trade secret disputes. Erik represented Nevro in a long-running trade secret and patent dispute against Boston Scientific in the District of Delaware. In that same venue Erik is representing I-Mab Biopharma in a trade secret dispute against Inhibrx Inc. related to preclinical and clinical-stage bispecific antibodies. 

Erik was named to the Texas Super Lawyers list of "Rising Stars" in 2019 and 2021-2024 and Best Lawyers in America’s inaugural "Ones to Watch" in the field of Intellectual Property Law, Commercial Litigation (2021-2022), and Litigation – Intellectual Property (2021).

Erik previously served as a law clerk to Chief Judge J. Rodney Gilstrap in the Eastern District of Texas, Marshall Division where he assisted the Court in overseeing one of the nation’s busiest civil trial dockets.

Erik graduated magna cum laude and as a member of the Order of the Coif from SMU Dedman School of Law. Prior to law school, Erik graduated with a B.A. in Political Science from Brigham Young University.

• Nevro v. Boston Scientific (D. Del.) — In 2022, Erik completed a set of sprawling litigations defending Nevro against Boston Scientific in a series of cases spanning over 20 patents and 60 asserted trade secrets related to spinal cord stimulation devices. These litigations ultimately resolved in the plaintiff Boston Scientific paying defendant Nevro $85 million. 
• I-Mab Biopharma v. Inhibrx (D. Del.) — Erik represents I-Mab in its ongoing trade secret litigation against competitor Inhibrx related to misappropriated trade secrets related to bispecific antibodies in the field of immuno-oncology. 
• Magna Electronics v. Panasonic (W.D. Tex.) — Erik represented Magna as a defendant and counterclaim-plaintiff in a patent disputes against Panasonic related to automotive radar and camera systems. 
• Green Source v. Halliburton Energy Services, Inc. (E.D. Tex.) – Obtained successful dismissal for
  Halliburton in a patent infringement suit related to the use of terpenes in downhole stimulation and
  production. Erik argued at the Markman hearing on behalf of Halliburton and obtained case-dispositive preliminary constructions on more than 100 claims.
• TCL v. Ericsson (C.D. Cal.) – Represented Ericsson in a long-running licensing dispute against TCL
  related to unpaid royalties and breach-of-FRAND allegations. After an initial bench trial, Ericsson
  obtained reversal on appeal, where the Federal Circuit held that the Seventh Amendment guaranteed
  Ericsson a jury trial to determine the amount of royalties TCL owed Ericsson.
• Rovi/TiVo v. Comcast (ITC) – Represented Rovi and TiVo in a series of investigations related to
  Rovi’s patented interactive program guides and related technology. Erik argued on behalf of Rovi at
  the Markman hearing before the Administrative Law Judge. At the conclusion of the investigation, the
  Commission found that Comcast infringed Rovi’s patents and entered an exclusion order.
• Zenimax Media v. Samsung (N.D. Tex.) – Represented Zenimax in a trade secret misappropriation
  and copyright infringement case related to Samsung’s "Gear VR" virtual reality headset.
• Freddie Mac v. Large Accounting Firm (S.D. Fla.) – Represented Freddie Mac in litigation against a
  large accounting firm in which Freddie Mac alleged over US$1 billion in damages resulting from
  flawed audits of Taylor Bean & Whitaker Mortgage Corp., which was the largest independent
  mortgage lender in the United States that collapsed into bankruptcy in 2009. The litigation settled on
  the eve of trial.
• Sperlonga v. Associa – Defended America's largest homeowners association management company
  against breach-of contract claims in Texas state court. Obtained summary judgment in favor of
  Associa barring recovery of more than $100 million in alleged lost profits.

• Named a Texas "Rising Star" by Super Lawyers (2019, 2021, 2022, 2023, 2024)
• Recognized in Best Lawyers in America as "Ones to Watch" for Intellectual Property and Commercial Litigation (2020-2022)