Two Embarcadero Center, 28th Floor
San Francisco, CA 94111
David R. Eberhart
is a partner in O’Melveny’s San Francisco office and a member of the Intellectual Property and Technology Practice within the Litigation Department. His practice focuses on the representation of technology companies, primarily in intellectual property litigation. David’s practice also encompasses business torts and antitrust litigation for technology companies. He has significant experience in all phases of litigation through trial and appeal.
Illustrative Professional Experience
- Trial counsel to a leading manufacturer of open end-to-end digital technology and services to digital pay-television platform operators and content providers in the successful defense of litigation alleging copyright infringement, Digital Millennium Copyright Act, RICO, 1934 Communications Act, and unfair competition claims relating to satellite television conditional access systems. Following a five-week trial, the jury deliberated for less than a day and found in favor of the client. David also represented the client in a related criminal investigation. At the close of the investigation, the United States Attorney's Office issued a formal declination to prosecute the client.
- Lead counsel to an online auction service provider in prosecuting an action for Computer Fraud And Abuse Act violations, RICO violations, California Penal Code § 502 violations, fraud, unjust enrichment, and California Business And Professions Code § 17,200 violations arising from defendants’ use of computer software to wrongfully obtain commissions from the client’s affiliate advertising program. This action is ongoing.
- Lead counsel to a national bank in a copyright infringement action relating to source code used for wireless online banking systems, settling the case very favorably for the client on the eve of trial.
- Lead counsel to a major consumer electronics company in defending claims for breach of contract and fraud relating to the development of consumer software for the client’s computers. This action is ongoing.
- Represented a family of medical device companies in an International Trade Commission investigation involving claims of patent infringement and trade secret misappropriation in software and manufacturing technology used to design and manufacture transparent orthodontic braces, known as “aligners.” The matter was resolved with other related matters through a global settlement, which included a significant cash payment to the client.
- Defended motion picture and animation studios against allegations of copyright infringement and Lanham Act violations related to the creation of a popular feature length animated motion picture. The case resulted in a settlement favorable to the clients.
- Represented a personal computer manufacturer in a trademark infringement action in which the plaintiff charged the client with infringing its alleged rights to a cellular telephone trademark, threatening to derail the product’s launch. After a short period of intense litigation and negotiations, the parties were able to reach a favorable settlement resulting in the dismissal of all litigation.
- Defended a computer and consumer electronics company in a trademark infringement action arising from the launch of a branded computer operating system software. The successful defeat of the defendant’s motion for a preliminary injunction early in the case helped lead to a global settlement favorable to the client.
- Represented an animation studio in prosecuting an action for trade secret misappropriation and patent infringement relating to software for rendering of computer graphics. The case was settled on terms favorable to the client.
- Successfully defended against a copyright infringement and unfair competition lawsuit brought by a European satellite television giant alleging that the client reverse engineered the computer code contained in the plaintiff’s satellite television access cards and used that code to facilitate piracy of the plaintiff’s system. The case was dismissed.
- Defended a computer and consumer electronics company against claims alleging trademark infringement. The parties ultimately reached an amicable business resolution to the dispute.
- Represented a computer and consumer electronics company against claims of antitrust violations, unfair competition, and tortious interference with contract. The case was settled on terms favorable to the client.
- Represented the defendant in a patent infringement case relating to the simulation and emulation of integrated circuit design.
Admitted to Practice,
US District Court, Northern, Central, and Eastern Districts of California; US Court of Appeals, Ninth CircuitMember
, American Bar Association; American Intellectual Property Law Association; Bar Association of San Francisco
University of Michigan, J.D., 1992: magna cum laude; Order of the Coif
Dartmouth College, A.B., 1989
Digital Wire-Frame Models Not Automatically Entitled to Copyright Protection
(O'Melveny Copyright, Trademark and Internet Law Alert, June 2008)