Ben L. Wagner

The last few years for Ben L. Wagner have included victories on both sides of the v, having a collective recovery of $85 million for clients and the defeat of over $150 million in damages asserted against them.

He has worked in IP law since 2005 when he drafted a summary judgment in a trademark case as a clerk at a law firm during law school.

"My first trial verdict was against a major entertainment company and for IP claims, and I knew then I wanted to aim my practice toward IP," Wagner said.

In one of his recent cases, he served as lead counsel for Lontex Corporation in a trademark infringement dispute concerning the "Cool Compression" trademark. Lontex Corporation v. Nike, Inc., 2:18-cv-05623 (E.D. Pa., filed Oct. 31, 2018).

Wagner said the case was notably complex, involving a two-week jury trial, nearly two dozen witnesses and an intricate infringement pattern that spanned three years.

The jury ruled in favor of Lontex, finding the trademark infringement willful and including punitive damages. Post-trial motions trebled the damages award, resulting in a total judgment close to $6 million. The case is currently pending on appeal.

"This case was significant as it demonstrated the importance of protecting intellectual property rights, even when up against industry giants like Nike," Wagner said, adding: "As a result of this lawsuit, I have gone on to clear the marketplace of other infringers and collected royalty rates at the upper end of the industry royalty range for their violations."

In a separate matter, he represented Allele Biotechnology and Pharmaceuticals in a patent infringement lawsuit against Pfizer and BioNTech. Allele Biotechnology and Pharmaceuticals, Inc. v. Pfizer, Inc. et al., 3:20-cv-01958 (S.D. Cal., filed Oct. 5, 2020).

Allele accused the defendants of infringing their patent in the development of the Pfizer/BioNTech COVID19 vaccine. The case was settled at the end of December 2021 for a confidential sum.

"This case was significant as it resolved section 271(e)(1) immunity based on the use of research patents in connection with FDA approval and involved unsettled issues in the arena of valuing research-related patents," Wagner said. "It also resulted in me being invited as a fellow of the American Bar Foundation due to the success, an honor for 5% of attorneys."

Wagner said because of the size of the defendants, they often have massive marketing operations and experts that will heavily rely upon those operations to attempt to downplay the impact of the infringement.

"The main obstacle in damages phases has been to provide marketing expertise that paints the picture of the full impact of the infringement on a variety of the infringer's business activities," he said. "But the result has also been having to overcome a lack of significant analogous case law for marketing experts."