Brett M. Schuman

Brett M. Schuman's career started at Brobeck Phleger & Harrison LLP in 1997 and he has committed to IP law ever since.

His work initially focused on matters such as trade secrets, as well as patent, copyright and trademark litigation. He said his passion for IP litigation stems from his enthusiasm for technology and understanding how things work through his legal practice.

One of his most significant and enduring cases has been the defense of clients in 2Wire (in Delaware) and a related case TQ Delta v CommScope (in the Eastern District of Texas), ongoing since 2013.

"The plaintiff initially asserted 24 patents against 2Wire in the Delaware case, which is just too many patents for any one case," Schuman said. "That's part of why the Delaware case has been litigated for so long and why there still is no judgment awarding the plaintiff any damages in that case."

In addition to patent litigation, Schuman has also established a niche in trademark infringement cases within the cannabis industry. He co-founded and co-leads the Goodwin cannabis practice and co-leads the IP litigation practice.

"The cannabis trademark cases are fascinating because there is so much uncharted territory when you are representing a federally illegal business in federal court," he said.

The cases, such as Kiva Health Brands v. Kiva Brands Inc., and BBK Tobacco & Foods, LLP d/b/a HBI International ("BBK") v. Central Coast Agriculture, Inc., present unique challenges due to the federal illegality of the cannabis business. In the former case, Schuman defended client Kiva.

"Even though our client indisputably was using the Kiva mark in commerce for over two years before the plaintiff Kiva started using the mark for non-cannabis goods, the judge ruled that the plaintiff was the senior user because our client's prior use was an 'unlawful use' as a matter of federal law," Schuman said.

He continued: "The identity of the senior and junior users of a mark has significant implications in a trademark case, including for providing likelihood of confusion and damages. So, we litigated and successfully resolved the case in a sort of artificial world where our client was deemed the junior user even though it was using the Kiva mark first."

Highlighting trends, Schuman noted the filings of fewer patent cases and more trade secret misappropriation cases.

"I think the combination of IPR practice, Alice, and decisions generally limiting patent damages have collectively caused many plaintiffs to shy away from patent litigation and towards trade secret misappropriation where that is an option," he said.