San Francisco:
Two Embarcadero Center, 28th Floor
San Francisco, CA 94111
Phone+1-415-984-8959
Fax+1-415-984-8701

 

David Almeling

Partner


David Almeling is a partner in O’Melveny’s San Francisco office and a member of the Intellectual Property and Technology Practice Group within the Litigation Department.

David represents clients in intellectual property litigation, focusing on patent and trade secret litigation.  David’s clients range from industry-leading, Fortune 100 companies to innovative start-ups.  David has been successful in every stage of litigation, from securing fast and favorable results through early settlements or motion practice to preserving victories at the Federal Circuit.  Clients also entrust David with a wide variety of non-litigation tasks, from conducting pre-filing patent analysis to investigating the alleged theft of trade secrets.

Among his other awards, David was named on The Recorder’s 2013 list of “Lawyers on the Fast Track,” which identifies 50 California lawyers “whose early accomplishments indicate they will be tomorrow’s top lawyers and leaders.”

David is a nationally respected authority on patents and trade secrets. He has published more than a dozen articles in best-in-class publications, and he has presented more than a dozen CLE presentations, mostly headlining solo.  With O’Melveny’s Darin Snyder, David co-authored the book Keeping Secrets: A Practical Introduction to Trade Secret Law and Strategy, which was published in 2012 by Oxford University Press.  Richard Lutton, the former Chief Patent Counsel for Apple, praised the book as “a must have for every general manager and lawyer who hopes to see business and clients thrive using their unique information assets.”  David also holds leadership roles in state and national intellectual property bar associations.

David also has substantial experience and success advising companies regarding proceedings in the U.S. Patent & Trademark Office.  He has been involved in more than two dozen ex parte and inter partes reexaminations.  And he is currently involved in several Inter Partes Review and Covered Business Method proceedings.

Illustrative Professional Experience

Illustrative Patent Litigation

  • Defended an industry-leading, Mountain View-based multinational public cloud computing company in six patent cases.  One in E.D. Tex. involved a web-based interactive map technology and resulted in a complete victory in which the U.S. Patent & Trademark Office invalidated the asserted patent in reexamination.  Another case in E.D. Tex. involved the use of electronic tokens to conduct internet commerce and resulted in a fast and favorable settlement.  David is currently defending the company in several cases:  one in S.D. Cal. involving the organization of map data on portable wireless devices; one in D. Del. involving a method for providing navigational instructions that include photographs of locations along the route; and one in N.D. Tex. involving three patents relating to computer graphics. 
  • Defended an industry-leading, Cupertino-based multinational public consumer electronics and software company in several patent cases.  One, in E.D. Tex. and S.D. Fla., involved antivirus software and resulted in a favorable settlement involving the licensing of a portfolio of patents shortly after service of strong invalidity contentions.  David is currently defending the company in a case in D. Del. and the Federal Circuit involving sixteen patents relating to various phone, audio, camera, and mobile device technologies.
  • Represented a San Jose-based public semiconductor manufacturer in several patent cases.  One in E.D. Pa. involved voltage and temperature compensated amplifiers and resulted in a complete victory in which the case was dismissed shortly after O’Melveny filed a Rule 11 motion.  Two other cases resulted in a fast and favorable settlement:  one in N.D. Cal. involved all-silicon oscillators for generating clock signals and the other in E.D. Tex. involved PCI Express technology.
  • Defended a Korea-based, multinational public electronics company in several patent cases.  One, in E.D. Tex., involved vehicle collision systems and resulted in a favorable settlement.  David is currently defending the company in a case in D. Del. that involves a method for providing navigational instructions that include photographs of locations along the route.
  • Defended an electronic design automation company in a patent case relating to automated design of integrated circuits, resulting in a favorable settlement after a summary judgment ruling that the plaintiff lacked standing.  (N.D. Cal.)
  • Represented a biometric payment solutions company in an appeal that decided the ownership of fifteen patents, resulting in a Federal Circuit decision that gave a complete victory to the company.  (Federal Circuit)
  • Represented a provider of syndicated consumer research in asserting patent infringement involving technology that measured usage and performance of mobile devices, resulting in a favorable claim construction that lead to a favorable settlement.  (N.D. Cal.)
  • Represented two global electronics companies in their assertion of patent infringement claims against a provider of wireless networking technology, resulting in a Federal Circuit decision approving, for the first time, of proving infringement through compliance with a technical standard.  (Federal Circuit and W.D. Wis.)
  • Currently defending an online video service company in two patent cases, both in C.D. Cal.:  one involves a method for creating and streaming interactive video and the other involves a method for managing and marketing digital video.

Illustrative Trade Secret and other Matters

  • Represented a biometric sensors company against two former employees in an arbitration involving claims of breach of contract and trade secret misappropriation.  David served as second chair at the two-day hearing in front of a former federal judge, who found in the company’s favor that the former employees breached certain provisions of the applicable agreements, including provisions regarding trade secrets.  (JAMS)
  • Represented a medical device company in six simultaneous cases involving software and hardware used to design orthodontic braces, resulting in a favorable settlement that included a significant payment to the client.  The cases involved trade secret, trademark, and other claims.  (N.D. Cal., W.D. Wis., ITC, and California state court)
  • Defended an innovator of HD semiconductor chips in a case that involved trade secret, copyright, antitrust, and unfair competition claims.  After the successful defeat of a motion for preliminary injunction on the trade secret claim, the litigation was resolved through a favorable settlement.  (N.D. Cal.)
  • Represented a leader in biometric fingerprint security solutions in a case involving trade secret claims, resulting in a favorable settlement that created the world's largest provider of fingerprint sensors and identity management software.  (N.D. Cal.)
  • Represented an international nonprofit athletic institution in a trademark infringement case against various websites that sold fraudulent tickets, resulting in a complete victory in the form of permanent injunctions against the websites.  (D. Ariz. and N.D. Cal.)
  • Represented a large number of companies and individuals — both trade secret owners and alleged misappropriators — in various aspects of civil and criminal trade secret disputes that do not go to court, including devising trade secret protection programs, investigating alleged misappropriation and valuing trade secret claims, drafting cease-and-desist letters, responding to cease-and-desist letters, negotiating pre-litigation resolutions, and hiring and terminating employees.
  • Represented a nonprofit IP institute and filed an amicus brief on their behalf regarding the patentability of basic scientific research in the pharmaceutical industry.  (U.S. Supreme Court)
  • Represented, pro bono, a plaintiff who alleged a school district discriminated against her because of her Egyptian nationality and Islamic faith.  David helped secure what was at the time the second largest award in a hostile school environment claim.  (Ninth Circuit and D. Nev.)

Professional Activities

Law Clerk,  Honorable Gerald B. Tjoflat, US Court of Appeals, Eleventh Circuit (2004-05)
Admitted to Practice,  US District Court, Northern, Southern, Central, and Eastern Districts of California; US Court of Appeals, Ninth, Eleventh, and Federal Circuits; US Supreme Court
Co-Chair,  Best Practices Subcommittee, Trade Secret Committee of the American Intellectual Property Law Association
Former Chair,  Media Relations Subcommittee and the Amicus Subcommittee, Trade Secret Committee of the American Intellectual Property Law Association
Member,  San Francisco Bar Association Section on Intellectual Property; American Bar Association Section on Intellectual Property Law; The Lawyers and Judges Golf Association of Northern California
Programming Director,  Trade Secret Committee of the California Bar Association
Honors,  Named on The Recorder’s 2013 list of “Lawyers on the Fast Track,” which identifies 50 California lawyers “whose early accomplishments indicate they will be tomorrow’s top lawyers and leaders”; named a “Rising Star” in intellectual property litigation in both the 2013 and 2014 surveys conducted by Law & Politics Media Inc. and published in Northern California Super Lawyers Magazine and San Francisco magazine
Author,  "Recent Trade Secret Reform, and What Else Needs to Change,” IP Law 360 (September 23, 2013); "Seven Reasons Why Trade Secrets Are Increasingly Important," 27 Berkeley Technology Law Journal 1091 (November 2012), which was judged one of the best intellectual property articles published in 2012 and was selected for inclusion and republication in the 2013 edition of the Intellectual Property Law Review; "Keeping Secrets: A Practical Introduction to Trade Secret Law and Strategy" (Oxford University Press 2012); "The New, Improved Prior Use Defense: The Same Patent vs. Trade Secret Calculus," Trade Secret Litigator (April 17, 2012); "First Patent Reform, Now Trade Secret Reform," Patently-O (October 12, 2011); “Pros and Cons of Criminal Prosecution vs. Civil Enforcement,” in Trade Secret Litigation and Prosecution in California Supplement (2011); "A Look At State Court Trade Secret Stats," IP Law 360 (March 1, 2011); "A Statistical Analysis of Trade Secret Litigation in State Courts," 46 Gonzaga Law Review 57 (February 2011), which was judged one of the best intellectual property articles published in 2011 and was selected for inclusion and republication in the 2012 edition of the Intellectual Property Law Review; "Tracking Trade Secret Stats," IP Law 360 (March 25, 2010); "A Statistical Analysis of Trade Secret Litigation in Federal Courts," 45 Gonzaga Law Review 291 (March 2010); "A Practical Case For Federalizing Trade Secret Law," IP Law 360 (June 23, 2009); "Four Reasons to Enact a Federal Trade Secrets Act, " 19 Fordham Intellectual Property, Media & Entertainment Law Journal 769 (April 2009); "Trade Secrets:  The Identification Issue," National Law Journal (August 2008); "DOJ, FTC Redefine Antitrust Rules on Patent Pools," National Law Journal (October 29, 2007); "The Infringement-Plus-Equity Model:  A Better Way to Award Monetary Relief in Trademark Cases," 14 Journal of Intellectual Property Law 205 (2007); "Patenting Nanotechnology:  Problems with the Utility Requirement," Stanford Technology Law Review, N1 (2004); "The Problems of Pouring-Rights Contracts," 53 Duke Law Journal 1111 (2003)
Speaker,  "New Legal Issues Impacting IP Transactions: Copyrights, Trademarks, Domain Names, Patents, and Trade Secrets," Practicing Law Institute (February 27, 2014); "Patents vs. Trade Secrets: Best Practices for Protecting and Enforcing IP," California Bar Association Intellectual Property Law Section (August 7, 2013); “What Lawyers and Their Clients Need to Know about the Changing Balance of Power Between Trade Secrets and Patents,” American Intellectual Property Law Association (April 23, 2013); “Introduction to Trade Secret Law, Its Increasing Importance, and Its Changing Balance with Patent Law,” University of Washington School of Law (October 29, 2012); "Understanding Patent Law and Trade Secret Law for In-House Counsel and Other Non-IP Lawyers," Bridgeport Continuing Education (August 24, 2012); "Why Trade Secret Litigation is Booming, and Why That Matters to Clients," Sonoma County Bar Association (January 23, 2012); "Why Every Lawyer Should Know More about Trade Secret Law," California Bar Association IP Institute (November 11, 2011); "Six Reasons That Trade Secrets Matter More and More to American Companies," Bridgeport Continuing Education’s Prosecuting and Defending Corporate Raiding, Customer Trade Secret, and Employee Mobility Cases (February 25, 2011); "Trade Secret Litigation - A Statistical Analysis of Recent Trends and Implications," California State Bar Cyber Institute (January 19, 2011); "Trade Secret Considerations for In-House Counsel and Executives," California State Bar Cyber Institute (January 11, 2011); "Someone Stole My Trade Secrets, Now What Do I Do?" Joint CLE provided by O'Melveny & Myers and Navigant Consulting (October 12, 2010); “The Evolution of Trade Secret Law:  Reflecting on 30 Years of the Uniform Trade Secrets Act,” Hamline Law Review Symposium (April 16, 2010)
Adjunct Teaching Position,  Advanced Patent Law, Santa Clara University School of Law (2007)

Duke University, J.D.:  high honors; Order of the Coif; Note Editor, Duke Law Journal; Moot Court Board

University of Florida, B.A., Political Science:  highest honors; Valedictorian; Phi Beta Kappa


California

Recent Trade Secret Reform, and What Else Needs to Change (IP Law 360, September 23, 2013)

Seven Reasons Why Trade Secrets Are Increasingly Important (27 Berkeley Technology Law Journal 1091, November 2012)

A Look At State Court Trade Secret Stats (IP Law 360, March 1, 2011)

A Statistical Analysis of Trade Secret Litigation in State Courts  (Gonzaga Law Review, February 2011)

A Statistical Analysis of Trade Secret Litigation in Federal Courts (Gonzaga Law Review, March 2010)

Tracking Trade Secret Stats (IP Law 360, March 25, 2010)

A Practical Case For Federalizing Trade Secret Law (IP Law 360, June 23, 2009)

Four Reasons to Enact a Federal Trade Secrets Act (Fordham Intellectual Property Media & Entertainment Law Journal, April 2009)(Copyright © 2009 Fordham Intellectual Property, Media & Entertainment Law Journal and  David S. Almeling)

The Identification Issue (National Law Journal, August 2008)

DOJ, FTC Redefine Antitrust Rules on Patnet Pools (National Law Journal, October 29, 2007)

The Infringement-Plus-Equity Model:  A Better Way To Award Monetary Relief in Trademark Cases (Journal of Intellectual Property Law, Spring 2007)

Patenting Nanotechnology:  Problems with the Utility Requirement (Stanford Technology Law Review, 2004)