Wayne M. Barsky

Barsky focuses on high-stakes patent litigation for clients in the biotechnology, pharmaceutical and medical device industries.

“In this area, you are constantly working with really creative, bright people, whether they’re engineers or scientists,” Barsky said. “I love working with them and learning about what it is they do. Also, I got into this field mainly because it scratches an itch I have about technology generally, whether it’s life sciences, semiconductors, or anything in between.”

He recently led the Gibson Dunn trial and appellate teams in securing the largest defense verdict in patent litigation history for clients Merck-Serono and Pfizer, ending a decade-long dispute in which Biogen MA sought more than $5.4 billion in damages for patent infringement in connection with Serono’s leading multiple sclerosis biologic.

In another recent win, Barsky defeated a preliminary injunction in a patent case over electronic aircraft technology for client Archer Aviation. In the closely watched case, Wisk, a Boeing-backed venture, alleged a misappropriation of trade secrets by Archer relating to its electric vertical takeoff and landing (eVTOL) aircraft after numerous engineers left Wisk to join Archer. Wisk Aero LLC v. Archer Aviation Inc., 3:21-cv- 02450 (N.D. Cal. Filed April 6, 2021).

eVTOL aircraft, Barsky explained, are built for urban air mobility and often referred to as flying taxis in the press. The first target markets are large cities like Los Angeles and the San Francisco Bay area, where eVTOLs promise to ease traffic congestion, lower emissions and get passengers to their destinations in record time.

“Wisk is a company that has explored this space for a number of years, whereas Archer was a startup that got going in 2019, and hired away a bunch of Wisk former engineers. That was met with a claim of trade secret theft,” Barsky said.

In August, Wisk accused Archer of massive theft of several patents and dozens of Wisk’s trade secrets related to virtually every major system on the aircraft, and sought to shut down the development of Archer’s prototype. Archer was also preparing to go public at the time. The case went to a preliminary injunction hearing after a “frenzied” expedited discovery, involving a number of depositions and hundreds of thousand pages of documents.

“What we did was to methodically establish that as to each and every one of those systems, we were not relying on any Wisk information, and in many respects had either independently developed our own systems or purchased the technology being challenged from third parties,” he said. “We were fortunate to have a judge who was very discerning, and did not react to the optics of a number of engineers having left Wisk to join Archer.”

The case has a trial date set in early 2023.

--Jennifer Chung Klam