J. David Hadden

J. David Hadden combines a strong background in theoretical physics with his litigation skills to represent tech companies in complex cases. The Fenwick & West LLP partner is a former National Science Foundation Graduate Fellow with an undergraduate degree in physics from Yale University and graduate work in string theory at Princeton University.

“Theoretical physics is not directly applicable to most cases,” he concedes, “but beating your head on 26-dimensional space gives you some confidence that you can understand the new technology that’s often at issue in my work.

“More concretely, there are basic math concepts behind video compression and digital signal processing, for example, that remain useful. Amazon’s Alexa, when you look under the hood, it’s very complex. Neural networks are a fun thing to try to teach a jury about.”

A current case he won in defense of Amazon.com Inc. may reach the U.S. Supreme Court, which is currently considering the losing side’s cert petition. The plaintiff sued 80 of Amazon Web Services’ customers, alleging patent infringement over its web host servers. Hadden successfully moved to stay the cases against Amazon and all but one of its customers—and then persuaded the trial judge to dismiss the case on summary judgment for noninfringement. The U.S. Court of Appeals for the Federal Circuit affirmed. In re: PersonalWeb Technologies LLC, 2020-1566 (F.Cir., filed March 17, 2020).

PersonalWeb, which owes Amazon $5 million in fees, petitioned the high court for certiorari over the way the Federal Circuit panel cited the obscure Kessler preclusion doctrine to dispose of the case. PersonalWeb Technologies LLC v. Patreon Inc., 20-1394 (S.Ct., petition filed April 2, 2021).

The doctrine, based on a 100-year-old Supreme Court precedent, holds that a losing patent holder cannot later assert the same patents against the winning party or its customers. PersonalWeb unsuccessfully sued Amazon and a customer a decade ago over the same patent and voluntarily dismissed that case with prejudice.

Hadden noted in the opposition to PersonalWeb’s cert petition that even if the Supreme Court wants to review Kessler, this is the wrong case because in a later ruling in a case involving the same allegedly infringing technology, the trial judge granted summary judgment of non-infringement on multiple grounds, and the Federal Circuit also affirmed that decision.

Added Hadden and colleagues in the opposition, “PersonalWeb is an especially undeserving petitioner given the district court’s findings (in awarding the sanction of attorney fees) of the weakness of its infringement case and its litigation misconduct.”

“At the end of the day, we win regardless,” Hadden said.

Still, the justices signaled an interest in the matter by asking the solicitor general to weigh in. A cert decision is pending.

“It’s fun to get into these tricky legal arguments as well as the science,” Hadden said.

– John Roemer