Elizabeth Brannen

Partner

Los Angeles | Tallahassee

Direct: 213.995.6809
Email: elizabeth.brannen@strismaher.com

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Elizabeth Rogers Brannen leads the firm’s intellectual property litigation practice. Immediately prior to joining the firm, Ms. Brannen was the Director of Intellectual Property at Barnes & Noble. She was previously Corporate Counsel in Oracle’s litigation group and has spent over a decade as a litigator in elite private practice. In 2015, she was recognized as a Corporate IP Star by Managing IP (MIP).

After a Federal Circuit clerkship early in her career, Ms. Brannen became an expert in every stage of patent litigation. Before going in-house several years ago, she successfully resolved, as outside litigation counsel, a wide variety of patent cases in federal courts throughout the United States. At Oracle and then Barnes & Noble, she continued helping companies defeat baseless patent and copyright allegations. Ms. Brannen has experience litigating technology relating to eCommerce, Java, Android, global business applications, middleware, server-management, and other software, as well as hardware including medical devices, blade and rack-mount servers, storage systems, tablets, and mechanical devices. She has achieved successful summary judgment rulings, including one for patent non-infringement where she argued her motion the same day as the initial case management conference.

Since joining Stris & Maher, Ms. Brannen has counseled multiple Fortune clients and closely-held companies with respect to infringement allegations prior to and during litigation, on both the defense and enforcement side, and helped secure multiple resolutions without protracted litigation. She also led the firm’s recent successful effort to defeat a copyright lawsuit involving cloud storage of digital files and defended the victory at oral argument before the Second Circuit, as well as its recent successful effort to win summary judgment dismissing Ohio right of privacy claims.

Given her record of success, adversaries remain inclined to cooperate with Ms. Brannen. She has personally negotiated complete walkaways, including one in a heavily litigated patent matter in which the plaintiff sought tens of millions of dollars in alleged damages. She has also achieved countless favorable settlements. On the enforcement side, she has obtained agreements to cease and desist from trademark infringement without litigation. She has also resolved, on favorable terms, disputes concerning alleged unauthorized use of a variety of things ranging from proprietary third-party software that was considered (but rejected) during product development, to the alleged misappropriation of photographs from a major motion picture, to microdermabrasion technology allegedly incorporated into medical equipment in violation of patent rights.

Ms. Brannen received her J.D. from Harvard Law School, with honors, and her B.A. from the University of Pennsylvania, magna cum laude, where, together with Peter Stris, she won the National Debating Championship defeating Brendan Maher and his Stanford University partner (the top ranked team of that year) in the final round.

Ms. Brannen routinely serves as lead trial or appellate counsel in a wide range of complex and high-profile disputes. The matters below are representative of her experience:

Copyright and Lanham Act Litigation
Smith v. Barnes & Noble, Inc., et al. [Read more here]
With Peter Stris, Ms. Brannen co-led a team of firm attorneys defending Barnes & Noble in this lawsuit alleging Copyright and Lanham Act violations. In late 2015, the district court granted summary judgment, dismissing the case in its entirety. See e.g., Kurt Orzeck, Barnes & Noble Beats IP Suit Over Cloud-Stored E-Books, Nov. 2, 2015 (subscription required). In late 2016, the Second Circuit affirmed. See e.g., Bill Donahue, 2nd Circ. Dodges 'Novel' Cloud Storage Copyright Questions, Oct. 6, 2016 (subscription required). Ms. Brannen presented argument oral argument before the Second Circuit (Oral Argument Audio).

Paula Berg Design Associates
Provided strategic counseling and negotiated favorable agreement relating to copyrights in ornamental furniture designs.

Parties Confidential
Negotiated favorable license terms with photographer initially demanding maximum statutory damages over use of iconic image in connection with unrelated commercial product.

Parties Confidential
Secured agreement to dismiss litigation alleging unauthorized use of images in connection with “adult-oriented products” for zero dollars.

Parties Confidential
Negotiated favorable royalty rate with studio to resolve dispute over use of photographs from major motion picture.

Parties Confidential
Negotiated favorable settlement with music companies alleging unauthorized misappropriation of song lyric.
Patent Litigation
Parties Confidential
Since joining the firm, Ms. Brannen has personally negotiated one zero dollar dismissal of patent litigation filed in the Eastern District of Texas and multiple patent licensing and/or nuisance-value settlement agreements on favorable terms.

Parties Confidential
Ms. Brannen recently wrote an Iqbal-Twombly motion prompting the plaintiff to amend its complaint and attempt to clarify the basis for its infringement allegations and state them with the required specificity rather than opposing the motion.

Akamai v. Limelight
Ms. Brannen recently filed an amici curiae brief on behalf of Newegg, Inc., SAP America, Inc., Xilinx, Inc., and other leading technology companies in support of defendants’ petition for certiorari with the U.S. Supreme Court in this closely watched patent case (Our Amicus Brief).  The important patent question at issue was whether an accused infringer may be held liable for direct infringement on a method claim where multiple parties perform the required steps.  On remand from the Supreme Court, the Federal Circuit issued an en banc ruling changing the governing standard and finding that all steps of the claimed methods were either performed by or attributable to Limelight.  On behalf of amici, we argued that the Federal Circuit’s newly announced standard was inconsistent with the Patent Act and unjustifiably departed from traditional conduct-attribution rules applied in all other legal contexts.

Biosig Instruments v. Nautilus
Ms. Brannen recently filed a brief amici curiae in the Federal Circuit on behalf of Garmin International and other leading companies in support of defendants’ petition for rehearing en banc in this closely watched patent case (Our Amicus Brief). After rehearing was denied, Ms. Brannen and other firm lawyers filed an amicus brief on behalf of various leading technology companies in support of defendants’ petition for certiorari (Our Supreme Court Amicus Brief).  The latter brief urged the United States Supreme Court to review, for a second time, a Federal Circuit ruling that a Biosig Instruments patent directed to a heart rate monitor was not indefinite.  Earlier in the case, the U.S. Supreme Court established a new standard for definiteness:  “reasonable certainty.”  On remand, the Federal Circuit had held that Biosig’s patent was still not indefinite.  On behalf of amici, we argued that the Federal Circuit had merely applied its old test in disguise, with resulting harm to American industry.

Parties Confidential
Ms. Brannen personally negotiated a complete walk-away in a heavily litigated patent matter in which the plaintiff sought tens of millions of dollars in alleged damages.

Parties Confidential
Since 2014, Ms. Brannen has contributed to briefing in three separate appeals in which the Federal Circuit has affirmed judgments in favor of her clients, twice summarily.

Parties Confidential
Ms. Brannen recently contributed defense-side representation in a patent damages trial pending in the Southern District of New York.

Parties Confidential
Ms. Brannen contributed to briefing that resulted in a full Commission determination of no violation based upon noninfringement of a patent asserted against microprocessors.

Parties Confidential
Ms. Brannen participated on a team that secured a full Commission determination of no violation based upon noninfringement of multiple patents relating to GPS technology.

Polycity Enterprise Limited v. Funline Industries, Inc.
In their first patent litigation collaboration (over 10 years ago), Ms. Brannen and Peter Stris sought (Our Motion | Our Reply) and obtained (Order) summary judgment of noninfringement for a privately held technology company in a hearing held concurrently with the initial case-management conference.
Trade Secret and Other State Law
Roe v. Smashwords, Inc., et al.
As trial counsel for Smashwords, Inc., the nation’s largest self-publishing platform, Ms. Brannen led a Stris & Maher team that recently obtained summary judgment (Our Motion | Our Reply) in this suit brought by an Ohio couple depicted on the front page of a self-published e-book based on NFL player Rob Gronkowski. The case and e-book were made briefly newsworthy after being featured on NPR and TV show Jimmy Kimmel Live! (Opinion).

Parties Confidential
Ms. Brannen negotiated a favorable resolution to hard-fought trade secret litigation concerning allegations of misappropriation of two-factor-authentication technology.

Americana Juice v. Nestle USA
Ms. Brannen provided trial preparation support for this case in which lead trial counsel, Peter Stris, successfully defended Nestle USA, a Global Fortune 100 company, in a nine-figure trade secret trial in South Texas state court, achieving a jury verdict one-tenth the size of his client’s pre-trial settlement offer. The case was extensively covered by the McAllen Monitor which colorfully described Mr. Stris' closing argument after the jury was asked to award $100 million in compensatory damages. (“Holding a lottery ticket, Stris told jurors . . . ‘She thought she had a ticket to the Texas Mega Millions.’”).
Healthcare Litigation
Ms. Brannen regularly serves as a senior SMLLP team member representing sophisticated institutional healthcare providers in healthcare litigation.

Dual Diagnosis et al. v. Anthem et al. [Read more here]
Stris & Maher is lead trial counsel for plaintiffs, successful addiction treatment facilities, in this multi-million lawsuit against dozens of Blue Cross entities and welfare plans they insure or administer. The lawsuit alleges that Blue Cross has engaged in a nationwide scheme to injure out of network providers in violation of both federal and California law. On May 31, 2016, the Central District of California held a four-hour hearing on defendants’ coordinated motions to dismiss the operative complaint. (Complaint | Motion to Dismiss | Opposition to Motion)
Other Complex Commercial Litigation
The Energy Conservation Group, LLC, et al. v. Applied Underwriters, Inc., et al.
A well-known regional business purchased an insurance product that failed to comply with state law and subjected the company to the very exposure it sought to insure. Litigation ensued. Because the insurer is owned by one of nation’s most successful financial companies, the company brought in Stris & Maher as lead counsel to level the playing field.

Parties Confidential
Ms. Brannen and other firm lawyers serve as lead trial counsel to several American companies in a multimillion dollar franchise dispute against a major international coffeehouse chain. Ms. Brannen and her team are currently in arbitration proceedings governed by the Commercial Rules of the American Arbitration Association.

Parties Confidential
Since joining the firm, Ms. Brannen helped achieve a favorable low-value settlement of putative class-action litigation in which plaintiffs’ damages expert purported to project class-wide damages of at least $20 million.
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Education

Harvard, J.D. (2000)
UPenn, B.A. (1997)

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