O’Melveny Worldwide

Coke is a seasoned intellectual property and appellate litigator with decades of experience in private practice and government service—including serving as the second highest-ranking officer of the United States Patent & Trademark Office.

Coke has represented patent holders and accused infringers in complex patent matters, including through jury trials in the Eastern District of Texas and the Eastern District of Virginia. She is the rare appellate specialist with more than 60 Federal Circuit appeals to her name.

During her tenure at the USPTO, Coke served in many roles, including as Acting Deputy Director, Acting Chief of Staff, and Acting Deputy Solicitor, as well as Counsel to the Director, Senior Policy Advisor, and Associate Solicitor. In these roles, she advised multiple administrations on a wide array of legal and policy matters, from patent eligibility to drug pricing to artificial intelligence. She was honored with multiple awards, including for her work supporting the agency during the pandemic and the presidential transition.

Before joining O’Melveny, Coke taught Appellate Advocacy at the Regent University School of Law, where she served as faculty advisor to the Intellectual Property Law and Entertainment Society and supervised student scholarship in social media regulation, copyright and patent law. She then served as Deputy Attorney General for the Commonwealth of Virginia, overseeing hundreds of active federal and state court cases and internal investigations, and supervising 150 attorneys and professionals in the areas of healthcare, education, and social services.

Litigation

  • Advised the Department of Justice on patent, trademark, and copyright cases before the Supreme Court
  • Represented private and public sector clients before the Federal Circuit in more than 60 appeals from district court, examination, reexamination, and IPR proceedings
  • Litigated complex intellectual property cases in district courts throughout the United States, including two winning jury trials

Supreme Court Appeals

The United States is represented before the U.S. Supreme Court by the Department of Justice (DOJ) through the Office of the Solicitor General. Counsel for federal agencies work closely with the DOJ by participating in meetings with the parties and other affected agencies, writing legal memoranda reflecting the agency’s position and recommended government position, editing the government’s briefs, participating in moot arguments, and advising on overall case strategy.

  • United States v. Arthrex, Inc. (No. 19-1434) Advised DOJ on whether administrative patent judges are principal officers who must be appointed by the President with the advice and consent of the Senate, or inferior officers who may be appointed by a department head (co-agency counsel, representing the USPTO)
  • Georgia v. Public.Resource.Org Inc. (No. 18-1150) Advised DOJ on whether the government edict doctrine extends to—and thus render uncopyrightable—the annotations in the Official Code of Georgia Annotated (co-agency counsel, representing the USPTO)
  • Google LLC v. Oracle America Inc. (No. 18-956) Advised DOJ on whether copyright protection extends to a software interface and whether petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use (co-agency counsel, representing the USPTO)
  • Thryv, Inc. v. Click-To-Call Technologies, LP (No. 18-916) Advised DOJ on whether 35 U.S.C. § 314(d) permits an appeal of the PTAB’s decision to institute an inter partes review upon finding that 35 U.S.C. § 315(b)’s time bar did not apply (co-agency counsel, representing the USPTO)
  • Hikma Pharmaceuticals USA Inc. v. Vanda Pharmaceuticals Inc. (No. 18-817) Advised DOJ on whether patents that claim a method of medically treating a patient automatically satisfy Section 101 of the Patent Act, even if they apply a natural law using only routine and conventional steps (co-agency counsel, representing the USPTO)
  • Peter v. NantKwest, Inc. (No. 18-801) Advised DOJ on whether the phrase “[a]ll the expenses of the proceedings” in 35 U.S.C. § 145 includes attorneys’ fees (co-agency counsel, representing the USPTO)
  • HP Inc. v. Berkheimer (No. 18-415) Advised DOJ on whether patent eligibility is a question of law for the court based on the scope of the claims or a question of fact for the jury based on the state of the art at the time of the patent (co-agency counsel, representing the USPTO)
  • SAS Institute Inc. v. Iancu (No. 16-969) Advised DOJ on whether, under 35 U.S.C. § 318(a), the Board in its final written decision must address every claim that is challenged in the petition, or may the decision merely address a subset of those claims (co-agency counsel, representing the USPTO)
  • Oil States Energy Services LLC v. Greene’s Energy Group, LLC (No. 16-712) Advised DOJ on whether inter partes review violates the Constitution by depriving patent holders of their property rights without providing them a jury and an Article III forum (co-agency counsel, representing the USPTO)
  • Impression Products, Inc. v. Lexmark Int’l, Inc. (No. 15-1189) Advised DOJ on whether a “conditional sale” avoids the patent exhaustion doctrine and whether the sale of a patented article abroad exhausts the U.S. patent rights in that article (lead agency counsel, representing the USPTO)
  • Kirtsaeng v. John Wiley & Sons, Inc. (No. 15-375) Advised DOJ on the award of attorney’s fees in copyright cases, particularly whether there is a presumption of fees against the losing party, whether fees can be awarded when the losing party is reasonable, and what factors are relevant (lead agency counsel, representing the USPTO)
  • Maersk v. Transocean (No. 13-43) Advised DOJ on the definition of “offer to sell” and “sale” under 35 U.S.C. 271(a) and when an offer to sell or a sale takes place “within the United States” for purposes of evaluating the extraterritorial application of US patent law (lead agency counsel, representing the USPTO)
  • Finjan, Inc. v. USPTO (No. 12-1245) Advised DOJ on whether non-patent prior art is entitled to a presumption of enablement for anticipation purposes (lead agency counsel, representing the USPTO)
  • Kirtsaeng v. John Wiley & Sons, Inc. (No. 11-697) Advised DOJ on whether copyrighted works purchased lawfully outside the United States can be imported into and distributed in the United States without the explicit permission of the copyright owner. (lead agency counsel, representing the USPTO)

Federal Circuit Appeals

In appeals where Coke is listed as lead counsel, she prepared the briefs and, where there was an argument, argued the case before the Court. In cases where she is listed as co-counsel, she played a substantial role in the case through writing and/or editing the briefs and preparing co-counsel for argument. The below appeals are representative of the more than 60 appeals Coke has handled over the course of her career.

  • (Pending) Addressing, in an appeal from a district court patent infringement case, whether the court properly construed a claim term relating to a method of reducing latency in a network and properly granted summary judgment (co-counsel, representing corporate appellee)
  • (Pending) Addressing, in appeals from inter partes reviews, whether the Board properly construed certain terms relating to a voice-enabled device and in concluding that the prior art teaches such terms (lead counsel, representing corporate appellee)
  • (Pending) Addressing, in appeals from inter partes reviews, whether the Board erred in construing certain terms relating to an integrated display and input device and in concluding that the prior art fails to teach such terms, and whether the cross-appeal is barred by issue preclusion (lead counsel, representing corporate appellant)
  • (Pending) Addressing, in an appeal from an inter partes review, whether the Board erred in construing certain terms relating to a device with an interactive surface and in failing to consider evidence, or in failing to find, that the prior art teaches such terms (lead counsel, representing corporate appellant)
  • (Pending) Addressing, in appeals from inter partes reviews, whether the Board erred in failing to consider combination presented in the petition, in finding that the prior art fails to teaches certain terms relating to a device with an interactive display, and in finding that a person of ordinary skill in the art would not have been motivated to combine the prior art (lead counsel, representing corporate appellant)
  • (Pending) Addressing, in appeals from inter partes reviews, whether the Patent Owner forfeited its issue on appeal and whether the Board correctly found that the prior art teaches certain limitations of claims for a multimedia system (lead counsel, representing corporate appellee)
  • (Pending) Addressing, in an appeal from an inter partes review, whether the Board properly found that the prior art teaches certain limitations of claims for a multimedia system (lead counsel, representing corporate appellee)
  • Prevailed in a Section 145 case on appeal, addressing whether applicant engaged in prosecution laches with respect to four representative patent applications filed in the 1970s to 1990s and still pending before the Office (co-counsel, representing the USPTO)
  • Prevailed in an inter partes review proceeding on appeal addressing two issues of first impression: (1) whether the Board retains jurisdiction in IPRs after remand from the Federal Circuit in view of the requirement that a final determination by the Board must occur within 12-18 months; and (2) whether a patent holder can appeal the Board’s decision to institute or refusal not to institute under 35 U.S.C. 315(d) and 325(d) (lead counsel, representing the USPTO)
  • Prevailed in a patent examination proceeding on appeal addressing whether medical devices used in joint repair surgery were anticipated by several prior art references (lead counsel, representing the USPTO)
  • Prevailed in a patent examination proceeding on appeal addressing whether claim limitations reciting the content of written legal instruments were patentable in view of the prior art (lead counsel, representing the USPTO)
  • Prevailed in a patent examination proceeding on appeal addressing whether a device that disables or enables a starter mechanism is patentable over other prior art systems and whether a punch card reader qualifies as a credit card reader under the broadest reasonable interpretation of that term (lead counsel, representing the USPTO)
  • Prevailed in a patent examination proceeding on appeal addressing whether a relational database system was anticipated by a prior art system and whether certain limitations were nonfunctional (lead counsel, representing the USPTO)
  • Prevailed in a reissue proceeding on appeal addressing whether an applicant is entitled to correct a terminal disclaimer through reissue where the underlying “error” amounted to a choice rather than a mistake (lead counsel, representing the USPTO)
  • Prevailed in a reexamination proceeding on appeal addressing anticipation, obviousness, and written description for claims to a system for routing optical cables (lead counsel, representing the USPTO)
  • Prevailed in a patent reexamination proceeding on appeal addressing whether a patent directed to an electrical device was anticipated based on a single foreign prior art reference (lead counsel, representing the USPTO)
  • Prevailed in a patent examination proceeding on appeal addressing whether non-patent prior art is entitled to a presumption of enablement for anticipation purposes (lead counsel, representing the USPTO)
  • Prevailed in a patent examination proceeding on appeal addressing whether printed matter was related to the underlying substrate and given patentable weight (lead counsel, representing the USPTO)

District Court Patent Litigation

Through these and other matters, Coke has examined witnesses at trial, has taken or defended more than 75 depositions, including depositions of inventors and technical and damages experts, and has written and argued countless dispositive and non-dispositive motions.

  • Prevailed at trial for the plaintiff in a patent infringement case in the Eastern District of Virginia involving real time conferencing software; jury awarded US$62.3 million in damages and found that defendant willfully infringed the patent; the verdict was the eighth largest patent jury verdict in the United States that year and then the largest ever in E.D. Va. (co-counsel, representing corporate defendant)
  • Prevailed at trial for the defense in a patent infringement case in the Eastern District of Texas (Marshall) involving safety features for high-voltage electrical connectors; jury found both asserted patents invalid as anticipated and obvious (co-counsel, representing corporate defendant)
  • Prevailed on summary judgment for the defense in patent infringement case in the District of Columbia involving router technology (co-counsel, representing corporate defendant)
  • Prevailed on summary judgment in an APA case in the Eastern District of Virginia addressing the USPTO’s determination of the which patents are subject to the inter partes reexamination statute, the American Inventors Protection Act of 1999 (co-counsel, representing corporate defendant)
  • Prevailed in an APA case in the Eastern District of Virginia addressing the statutory estoppel provisions of the AIA and whether the decision to terminate a reexamination is reviewable under the APA (co-counsel, representing the USPTO)
  • Prevailed in an APA case in the Eastern District of Virginia addressing whether USPTO engaged in unreasonable delay with respect to 80 applications filed in the 1990s and still pending before the Office (co-counsel, representing the USPTO)

Admissions

Bar Admissions

  • District of Columbia
  • Virginia

Court Admissions

  • US District Court for the Eastern and Western District of Virginia, and District of Columbia
  • US Court of Appeals for the Third, Fourth, Fifth, and Federal Circuits
  • US Court of Federal Claims 
  • US Patent and Trademark Office (inter partes proceedings before the Patent Trial and Appeal Board)
  • Supreme Court of Virginia
  • District of Columbia Court of Appeals

Education

  • University of Virginia School of Law, J.D. 1997; Executive Editor, Virginia Tax Review, Editor-in-Chief, Virginia Law Weekly
  • Duke University, B.A. 1994, English Literature; cum laude, Certificate in Women’s Studies

Honors & Awards

  • Earned highest performance rating of “outstanding” each year of employment at the USPTO (2011-2020)
  • USPTO Director’s Award for Excellence in Presidential transition planning (2021)
  • USPTO Special Act Award for assistance with Presidential transition planning (2021)
  • USPTO Special Act Award for assistance with agency’s response to COVID-19 (2020)
  • Department of Commerce Bronze Medal for Superior Performance (2018)
  • Department of Commerce Award for Exceptional Service/“Attorney of the Year” Award (2017)
  • USPTO Director’s Award for Excellence in Litigation (2017)
  • Appointed Special Assistant United States Attorney, Department of Justice (2017)

Professional Activities

Clerkship

  • The Honorable James T. Turner, U.S. Court of Federal Claims, Washington, D.C.

Faculty

  • Principal Lecturer, Regent University School of Law, Virginia Beach, Virginia

Non-Profit Board Member/Director

  • Founding Member, former Director, and former General Counsel—Women Under Forty Political Action Committee, a nonpartisan political action committee supporting young women running for state and federal public office.
  • Founding Member—Running Start, a nonpartisan group providing leadership training to young women.
  • Former Advisory Board Member, STEM for Her, a nonprofit organization encouraging girls and young women to pursue careers in science, technology, engineering, and math.
  • Former Class Manager, University of Virginia Law School Foundation

Bar Association Member/Chair

  • Member, Board of Governors, Virginia State Bar, Section of Intellectual Property
  • Permanent member, Fourth Circuit Judicial Conference
  • Former co-chair, American Bar Association Intellectual Property Litigation Committee, Membership Committee, and Section Annual Conference 
  • Former elected member, District of Columbia Bar, Law Practice Management Steering Committee
  • Former member, Administrative Conference of the United States’ Artificial Intelligence in Federal Agencies project

Select Speeches and Publications

  • Author, “Winning Strategies at the Federal Circuit,” IP Watchdog, May 29, 2024
  • Panelist, Winning and Losing at the Federal Circuit, Patent Litigation Masters 2024, May 15, 2024
  • Panelist, Judges Panel—Perspectives from Both Sides of the Bench, 34th Annual Intellectual Property Section Seminar 2023, Virginia Law Foundation, October 27, 2023
  • Panelist, Education in America: Its Past. Its Present. Its Future, Regent University School of Law, Law Review Symposium, October 8, 2022
  • Panelist, Managing a Crisis: Preparation, Response, and Lessons Learned, AIPLA Annual Meeting, October 29, 2021
  • AI and the Future of Innovation, 18th International Conference on Artificial Intelligence and the Law (ICAIL), Center for AI and Patent Analysis at Carnegie Mellon University, June 25, 2021
  • Lead United States Delegation, 2021 Heads of Office meetings, IP5 (meeting of five largest patent offices: US, Korea, Japan, China, and Europe), April and June 2021
  • Opening Remarks, Annual Career Achievement Awards Ceremony, USPTO, June 16, 2021
  • State of USPTO and Trademark Operations, Trademark Public Advisory Committee Meeting, USPTO, May 21, 2021
  • Opening Remarks and Judge, 2021 National Patent Application Drafting Competition Finals, USPTO, April 9, 2021
  • Remarks on Leadership, Fireside Chat with Acting Deputy Secretary of Commerce, 2021 Women’s Entrepreneurship Symposium, USPTO, March 3, 2021
  • The Importance of Industrial Design Protection, International forum on protection of industrial designs, USPTO, February 9, 2021
  • Panel Discussion, Artificial Intelligence: Challenges and Opportunities, Federal Circuit Bar Association, May 28, 2020
  • USPTO Policy Priorities, Intellectual Property Law All Hands Meeting, IBM, April 21, 2020
  • Panel Discussion, The Role of Innovation Incentives for AI in Health Care, Trust, But Verify: Informational Challenges Surrounding AI-Enabled Clinical Decision Software, Duke University-Margolis Center for Health Policy, January 23, 2020
  • Raise the Bar: Real World Solutions for a Troubled Profession (co-author, ABA 2008)

Corporate & Government Experience

USPTO (2011-2021)

  • Acting Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director, overseeing legal, policy, and operational issues of importance to the agency, including intellectual property and administrative law cases before the U.S. Supreme Court and the U.S. Court of Appeals for the Federal Circuit
  • Acting Chief of Staff/Senior Counsel to the Director/Senior Policy Advisor, advising on a wide variety of intellectual property and administrative policy issues, including constitutional challenges to agency proceedings, patent eligibility, administrative rulemaking, drug pricing, and artificial intelligence
  • Acting Deputy Solicitor/Associate Solicitor, defending administrative law decisions, patentability decisions, and challenges to USPTO rules, regulations, and procedures in appeals before the U.S. District Court for the Eastern District of Virginia, the District of Columbia, and the Federal Circuit, and advising the U.S. Department of Justice Civil Appellate Staff and the Office of the Solicitor General on patent, trademark, and copyright cases before the U.S. Supreme Court

Office of the Attorney General of the Commonwealth of Virginia (2022-2023)

  • Deputy Attorney General, overseeing hundreds of active federal and state court cases and internal investigations, and supervising 150 attorneys and professionals in the areas of healthcare, education, and social services