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Overview

Kevin Schubert is an associate in McKool Smith's New York office. He focuses his practice on patent litigation. He has been involved in all phases of litigation, including pre-suit analysis, taking and defending dozens of fact and expert depositions, drafting summary judgment motions, and preparing pre- and post-trial briefing.

Recently, Kevin represented Wi-LAN in a patent dispute against Apple in the Southern District of California.  On August 1, 2018, a San Diego jury returned a verdict in favor of Wi-LAN for $145.1 million.  Kevin first-chaired a number of significant technical hearings in the matter, including Markman and the summary judgment hearing.  Kevin also argued the motion to transfer in the Northern District of California before Judge Wilken, which resulted in the case being transferred to the Southern District of California.

Kevin also recently represented BMC software in a patent dispute against ServiceNow in the Eastern District of Texas.  Kevin argued at the Markman hearing and at the pre-trial conference on behalf of BMC software before the case settled in early 2016.

Before law school, Kevin worked as a patent examiner in Washington, D.C., at the United States Patent and Trademark Office in the Cryptography department. There, he examined more than 100 patent applications, interviewed lawyers and inventors, and wrote appeal briefs to the Board of Patent Appeals and Interferences.

Experience

Representative Matters

Court of Appeals for Federal Circuit:

  • Wi-LAN. Wi-LAN Inc. v. Apple Inc., 2015-1256 (Fed. Cir.). Represented Wi-LAN in an appeal regarding the claim construction of several terms in patents related to 4G LTE technology.

District courts:

  • Wi-LAN. Wi-LAN Inc. v. Acer Inc. et al. (E.D. Tex.). Represented Wi-LAN in a patent litigation suit against leaders in the laptop, semiconductor, router, and handset industries related to Wi-LAN’s patented wideband OFDM that makes Wi-Fi capability possible in such devices. Both cases settled out of court for a substantial amount.
  • Wi-LAN. Wi-LAN Inc. v. Apple Inc. (S.D. Cal., pending). Represents Wi-LAN in a patent litigation suit related to Wi-LAN’s patented technology that enables mobile 4G devices to support a variety of popular services, such as voice, conversational video, live streaming of video and music, real-time gaming, etc., all in the palm of a hand. On August 1, 2018, the jury returned a verdict in favor of Wi-LAN for $145.1 million.
  • BMC Software. BMC Software Inc. v. ServiceNow Inc. (E.D. Tex.). Represented BMC Software in a patent infringement action involving IT management solutions. The case settled out of court before trial.
  • Realtime Data. Realtime Data LLC v. CME (S.D.N.Y.). Represented Realtime Data, a New York company, in patent infringement litigations involving patents to data compression technology used in the realtime delivery of market data, including in the Fix Adapted for Streaming (FAST) industry standard.

Patent Trial and Appeal Board:

  • BMC Software Inc. ServiceNow Inc. v. BMC Software Inc. Represented BMC in obtaining decisions of non-institution of its patents in CBM2015-00107 (U.S. Patent No. 7,062,683) and IPR2015-01601 (U.S. Patent No. 6,816,898).

U.S. Department of Justice:

  • Swiss banks. Represented a number of Swiss banks that participated in the Department of Justice’s Swiss bank program, which was announced in late 2013 and related to cross-border tax and money laundering issues.

New York State Department of Financial Services:

  • DFS Monitorship. Part of a team that conducted an 18-month monitorship of an international bank as a result of an enforcement action by the New York State Department of Financial Services. Conducted a historical review of the bank’s conduct in the United States and abroad and a global review of the bank’s compliance function. Worked with the bank on-site in Luxembourg, Switzerland, and the United States. 

Recognition

Rankings & Honors

  • Recognized as a "Rising Star" in New York by Super Lawyers, 2015-2017

Media & Events

Articles

Publications

  • “Should State Street Be Overruled? Continuing Controversy Over Business Method Patents,” 90 Journal of the Patent and Trademark Office Society 461 (2008). 
  • “Fuel Cell DG:  A Stationary Solution to Mobilizing the Hydrogen Economy,” EnergyPulse (2003)

Education

J.D., University of Pennsylvania Law School, 2009

B.S., summa cum laude, Electrical Engineering, Southern Methodist University, 2004

Court Admissions

  • State of New York
  • State of New Jersey
  • The U.S. Patent and Trademark Office
  • The U.S. District Court for the Eastern District of Texas
  • The U.S. District Court for the Southern District of New York
  • The U.S. Court of Appeals for the Federal Circuit
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