Michael S. Kwun

Kwun Bhansali Lazarus LLP

San Francisco

Patent, copyright litigation

Kwun has helped defend Google LLC since the company, was sued by Oracle Corp. for copyright and patent infringement in San Francisco federal court.

The saga will come to a climax next week when the U.S. Supreme Court hears oral arguments in the long-running battle of technology titans.

He will sit at counsel table along with Thomas C. Goldstein of Goldstein & Russell PC, an appellate specialist who will handle oral arguments, and Robert A. Van Nest, a San Francisco-based partner at Keker, Van Nest & Peters LLP, Kwun's old firm.

Kwun said he has worked on the case since 2011 and helped during both trials, U.S. Court of Appeals for the Federal Circuit appeals, and now the U.S. Supreme Court in a copyright dispute that turns on whether Google infringed Oracle's copyright by using the structure of the Oracle-owned Java program to create the android operating system. Google LLC v. Oracle America Inc., 18-956 (S. Ct., filed Oct. 19, 2018).

"It's been a long time coming," Kwun said.

During the case's long path to the high court, Kwun left Keker to start his own firm, Kwun Bhansali Lazarus LLP in San Francisco. He and his partners, Asim M. Bhansali and Kate E. Lazarus, started the firm in 2018 and recently hired an associate.

The firm primarily handles patent work, representing Silicon Valley mainstays as well as startups. While generally handling intellectual property cases, he said it has expanded its horizons to other litigation.

In November, Kwun persuaded U.S. District Judge David O. Carter of Santa Ana to dismiss a patent infringement claim against Netflix Inc. He successfully argued the patent, acquired last year by licensing giant Wi-Lan Inc., was based on an abstract idea. Adaptive Streaming Inc. v. Netflix Inc., 19-1450 (C.D. Cal., filed July 29, 2019).

He argued the patent, which provides a technique for "capturing audio and video information from a first source" and displaying it at a second source in a different format, is invalid under the U.S. Supreme Court ruling in Alice Corp. Pty. Ltd. v. CLS Bank International, 573 U.S. 208 (2014).

Carter agreed, dismissing the case. Wi-Lan attorneys filed an appeal to the Federal Circuit in December.

But Kwun isn't done. He is seeking attorney fees, arguing the case is exceptional and warrants it -- not because of any litigation misconduct but because the infringement suit was based on an "obviously invalid patent that Netflix clearly did not infringe."

He argues the plaintiff "pursued a baseless infringement case on a patent that was picked off the trash heap," adding such a decision would "dissuade future litigants from pursuing similarly weak claims."

Attorneys for Wi-Lan oppose awarding Netflix attorney fees, and the motion is pending.

-- Craig Anderson