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Kevin J. O'Brien

Kevin O’Brien is an accomplished litigator who focuses his practice on representing clients through all stages of patent litigation, including trial, appeal and pre-litigation investigation. In addition, he also represents clients in IP antitrust, FRAND, trade secret and trademark cases. Mr. O’Brien has built a substantial practice over the years, with national and international companies in the technology sector turning to him for his strategic legal counsel. His clients include leaders in  smartphone, 4G/LTE, solar panels, information technology, smartwatches, voice recognition technology, integrated circuits, small molecule pharmaceuticals, large molecule biologics, medical devices and consumer goods.

During his career, Mr. O’Brien has managed cases through fact discovery, expert discovery and trial. He also has extensive experience with technical and economic experts, including taking and defending expert depositions. In federal court, Mr. O’Brien has argued motions to dismiss, Daubert motions, discovery motions, motions to strike expert reports, and numerous pre-trial and trial evidentiary disputes. Mr. O’Brien excels at writing complex briefs, including briefs for claim construction, summary judgment, Daubert and post-trial briefs. He also has trial cross-examination experience.

Mr. O’Brien has also served as the contributing editor to the 2016 and 2012–2014 editions of The Rutter Group Practice Guide: Federal Civil Procedure Before Trial.

Experience

  • Represented solar panel company in a patent infringement action brought by competitor. (D. Del.)
  • Represented innovator drug companies in patent infringement actions involving chemotherapies therapies against ANDA filers. (D. Del.)
  • Represented a major smartphone company in a patent infringement and FRAND action involving 4G/LTE technology. (E.D.T.X.)
  • Represented an analog watch company in trademark and counterfeit action against smartwatch manufacturer. (S.D.N.Y.) 
  • Represented digital media provider in defense of patent infringement action involving voice-controlled remote technology. (D. Del.)  
  • Represented a fintech company sued for trademark infringement by an older competitor using the same name in the financial industry. Case settled favorably allowing client’s continued use of brand. (N.D. Cal.)
  • Represented a major social media company in successfully opposing an app developer’s motion for a temporary restraining order. App developer raised competition claims after developer’s access to client’s API was removed for data and privacy violations. Motion denied after app developer failed to establish irreparable harm. (N.D. Cal.) 
  • Represented a major pharmaceutical company in multiple patent suits involving replacement Factor VIII biologic products used to treat hemophilia. (D. Del.) Mr. O’Brien was a member of a trial team that won a $155 million patent infringement verdict in his client’s favor.
  • Represented a major smartphone company in a patent infringement and FRAND action involving 4G/LTE technology. (N.D. Cal.)  
  • Representing an online luxury clothing consignment retailer in a misappropriation of trade secrets action against an international competitor. (C.D. Cal.) Case favorably settled.
  • Represented a major smartphone company in a patent infringement case involving integrated circuits and power management technology. (E.D.T.X.) Case favorably settled after winning a key motion to exclude all pre-suit damages based on a failure to mark defense.
  • Represented a premier enterprise information technology company defending a seven-patent infringement suit involving database access technology. (N.D. Cal.) The case was resolved with a successful motion for summary judgment of non-infringement of all remaining asserted claims.
  • Represented a leading provider of one-time programmable non-volatile memory in multiple cases against a competitor involving a patent infringement defense and an affirmative antitrust claim. (N.D. Cal.) After winning summary judgment of non-infringement for all claims and obtaining an attorney’s fees award of more than $5 million under the exceptional case doctrine, the client obtained a favorable global settlement of all pending matters.
  • Represented a publicly traded pet supplies company in a defense of a patent infringement action that included successfully defending a motion for a preliminary injunction. (D. Del.)
  • Represented a national print and digital advertising company against a competitor in a defense of claims under the California Unfair Practices Act for illegal below-cost pricing and unearned secret discounts. (Cal. Superior Court.) Case settled favorably.
  • Represented an international semiconductor manufacturer in a defense to patent infringement claims related to semiconductor packaging technology. (D. Del.)

Recognition

  • Recognized as a "Rising Star" by Super Lawyers in 2019–2021

Insights & News

Credentials

  • Education

    • JD, University of California, Hastings College of Law, 2011

      summa cum laude, graduated second in his class

      Symposium Editor, Hastings Law Journal

      Order of the Coif

    • BA, English Literature, University of California, Santa Barbara, 2007

  • Admissions

    • California

  • Clerkships

    • The Hon. Richard Andrews, US District Court for the District of Delaware, 2012 - 2013

Credentials