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
Ms. Brannen represents Cliffside Malibu and Clean and Sober Media in this Lanham Act dispute pending in the Central District of California. The court granted our initial motion to dismiss the plaintiff’s complaint. (Our Motion | Our Reply | Order). The plaintiff then filed a first amended complaint that the court found satisfactory. We have filed counterclaims, and the case is pending.
Fourth Estate v. Wall-Street.com
Ms. Brannen represents the respondents in this copyright case, which the U.S. Supreme Court is expected to hear in Fall 2018. The issue is whether a plaintiff may file an infringement action as soon as it applies for a registration of copyright, or only once the registrar of copyright acts on that registration. (Our BIO) After the Court called for the views of the Solicitor General, the government filed a brief unequivocally supporting the merits position we set out in our Brief in Opposition. (SG’s Brief) The petition was granted on June 28, 2018. On October 11, 2018, we filed our merits brief for the respondents. (Our Brief)
Cisco Systems v. Arista Networks
Ms. Brannen filed an amicus curiae brief in the Federal Circuit on behalf of leading technology companies supporting the appellant. (Our Amicus Brief) The important question at issue concerned the scope of copyright protection for software. Before the Federal Circuit decided the appeal, the parties jointly sought and received an order vacating the district court judgment.
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).
Berreau v. McDonald’s Corporation
Ms. Brannen represented McDonald’s in this copyright case that was filed in the Central District of California. The court granted our motion to dismiss for lack of personal jurisdiction (Our Motion).
Paula Berg Design Associates
Provided strategic counseling and negotiated favorable agreement relating to copyrights in ornamental furniture designs.
Negotiated favorable license terms with photographer initially demanding maximum statutory damages over use of iconic image in connection with unrelated commercial product.
Secured agreement to dismiss litigation alleging unauthorized use of images in connection with “adult-oriented products” for zero dollars.
Negotiated favorable royalty rate with studio to resolve dispute over use of photographs from major motion picture.
Negotiated favorable settlement with music companies alleging unauthorized misappropriation of song lyric.
Ms. Brannen represents VidAngel in this multi-patent dispute, which is currently pending in the District of Utah.
Aeritas LLC v. McDonald’s Corporation
Ms. Brannen represented McDonald’s in this case in the Eastern District of Texas.
Geographic Location Innovations LLC v. Safeway, Inc.
Ms. Brannen represented Safeway in this case in the Eastern District of Texas. (Our Motion to Dismiss)
Geographic Location Innovations LLC v. Dollar Tree Stores, Inc.
Ms. Brannen represented Dollar Tree in this case in the Eastern District of Texas. (Our Motion to Dismiss)
Rothschild v. Barnes & Noble, Inc.
Ms. Brannen represented Barnes & Noble in this case in the Eastern District of Texas.
Akamai v. Limelight
Ms. Brannen 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 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.
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.
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.
Ms. Brannen recently contributed defense-side representation in a patent damages trial pending in the Southern District of New York.
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
As trial counsel for Smashwords, Inc., the nation’s largest self-publishing platform, Ms. Brannen led a Stris & Maher team that 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). Ms. Brannen then defended the grant of summary judgment on appeal to the Sixth Circuit. (Our Sixth Circuit Brief | Sixth Circuit Opinion)
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.’”).
Other Complex Litigation
For nearly a decade, the firm has represented dozens of pensioners in this case against the Xerox pension plan. To date, Xerox has been ordered to pay—and has paid—more than $22 million to plaintiffs. This epic dispute has already resulted in a published opinion by the U.S Supreme Court in 2010 (Supreme Court Opinion | Argument Audio) as well as three published opinions by the Second Circuit, including a major victory for our clients in 2013 (Second Circuit Opinion | Argument Audio). The case is currently on its fourth appeal to the Second Circuit, where Ms. Brannen presented oral argument (Argument Audio) in support of our efforts to obtain additional relief.
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.
Ms. Brannen and other firm lawyers served as lead trial counsel to several American companies in a multimillion dollar franchise dispute against a major international coffeehouse chain. Ms. Brannen and were in arbitration proceedings governed by the Commercial Rules of the American Arbitration Association.
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.
In the News
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Barnes & Noble Director of Intellectual Property Litigation Joins Stris & Maher
May 20, 2015
Leading IP Lawyer Joins Stris & Maher
May 19, 2015
Elizabeth Brannen Comments to Federal Trade Commission and U.S. Department of Justice Concerning Patent Litigation
March 1, 2013
Elizabeth Brannen Publishes Article on Topic of Patent Law Puzzlers
September 15, 2004
Elizabeth Brannen Publishes Article on Regional Circuit Jurisdiction Over Patent Appeals
November 12, 2003
Elizabeth Brannen to Address Trade Secrets before Federal Circuit Bar Association
November 3, 2016
Peter Stris and Elizabeth Brannen to Speak at ACI’s ERISA Litigation Conference
June 26, 2016
Elizabeth Brannen to Explain Key Procedural Changes in Patent Law
June 1, 2012
Elizabeth Brannen to Discuss Ethical Implications of Outsourcing
January 24, 2012
Elizabeth Brannen to Address Automated Review Process
April 21, 2011
Elizabeth Brannen to Assess Current Patent Reform Bill at the IP Law Summit
September 12, 2010
Harvard, J.D. (2000)
UPenn, B.A. (1997)