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Background

Frank Scherkenbach is a leading patent trial lawyer who specializes in complex, high-technology litigation. He has particular expertise in cases related to computer software, semiconductors, medical devices, and life sciences. He is known for his ability to craft novel legal theories and present compelling, persuasive arguments to juries and judges – skills developed while trying more than 40 patent cases to jury verdict, as well as many district court and ITC bench trials.

Mr. Scherkenbach’s wins in district court, the Federal Circuit, and the ITC earned him recognition as Benchmark Litigation’s 2019 “Intellectual Property Attorney of the Year.” His remarkable successes include:

  • Jury verdicts worth hundreds of millions of dollars in damages and injunctions against more than 175 infringing products for Power Integrations. Mr. Scherkenbach has led Power Integrations’ contentious patent infringement battles against Fairchild and its subsidiaries for 15 years, and secured victories in multiple cases in various courts.
  • A $23.7 million jury award in the District of Delaware for client SRI International (recently affirmed by the Federal Circuit).
  • Beating a $56.7 million damages request in a jury-verdict win for Adobe Systems, invalidating all asserted claims in the two patents at issue against Adobe’s Photoshop software.
  • A limited exclusion order at the ITC on behalf of Aspen Aerogels that stopped two foreign competitors from importing their aerogel composite blankets into the U.S.

On appeal to the Federal Circuit, Mr. Scherkenbach has argued for and secured many wins, including industry-changing decisions, which include:

  • Successfully arguing for reversal of the PTAB’s cancellation of client Power Integrations’ patent claims. In finding for Power Integrations, the court opined on important issues surrounding privity and the time-bar on petitioning for inter partes review.
  • Obtaining a landmark decision on damages on behalf of Microsoft that eliminated the “25 percent rule.” This had been previously used by plaintiff-side damages experts for decades as a starting point for royalties in intellectual property cases.
  • Securing affirmance of a jury award of $23.7 million and a compulsory license grant for patent-holder SRI. This case was closely watched because it tested whether SRI’s inventions were patent-eligible under the Supreme Court’s Alice decision (the Federal Circuit affirmed validity).
  • Convincing the Federal Circuit to uphold a summary judgment ruling of non-infringement for client Microsoft in litigation over Windows and Office products. The Federal Circuit revised the trial judge’s construction of two terms in the patent, but found these modifications did not change the outcome. It also upheld the district court ruling that plaintiff ViaTech could not prove infringement under the doctrine of equivalents.

Education

J.D., Harvard Law School 1989
Co-Founder, Editor-in-Chief, Harvard Journal of Law & Technology


B.S., Stanford University 1986
Mechanical Engineering
with distinction, Phi Beta Kappa, Tau Beta Pi


A.B., Stanford University 1986
Classics
with distinction

Admissions

  • California 1989
  • Massachusetts 2003
  • U.S. Court of Appeals for the Federal Circuit

Clerkships

United States Court of Appeals for the Federal Circuit, The Honorable Haldane Robert Mayer, 1989 - 1991

Memberships & Affiliations

Member of the Federal Circuit Bar Association, the American Bar Association, and the American Intellectual Property Law Association

Other Distinctions

Accolades

​“Intellectual Property Attorney of the Year” by Benchmark Litigation, 2019
“IP Star” by Managing Intellectual Property, 2013 – 2019
“Trademark IP Star” by Managing Intellectual Property, 2018
Massachusetts Super Lawyer, 2009 – 2018
Leading practitioner in patent law by IAM Patent 1000: The World’s Leading Patent Practitioners, 2012 – 2017​
Recognized by Chambers USA as a notable practitioner in Intellectual Property, 2005 – 2017
Named “Trial Ace” by Law360, 2015
Named “Local Litigation Star for Massachusetts and California” and “National Litigation Star” by Benchmark Litigation, 2013 – 2015
Named a “Client Service All-Star” by BTI Consulting Group, 2015
IAM 250, The World’s Leading Patent Litigator, 2011

Publications

Changes Ahead for NPE Patent Litigation, The Metropolitan Corporate Counsel, June 4, 2014
Q&A With Fish & Richardson’s Frank Scherkenbach, Law360, April 30, 2013

Experience

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What's trending with Frank

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News
June 20, 2019
Fish & Richardson Receives Top “Gold” Ranking from IAM Patent 1000 for National Patent Litigation Practice
Fish & Richardson Receives Top “Gold” Ranking from <em>IAM Patent 1000</em> for National Patent Litigation Practice
Press Release
News
May 21, 2019
Fish & Richardson Receives Top “Band 1” National Rankings for Intellectual Property and ITC Practices in Chambers USA 2019
Top Patent Litigation Firm
Press Release
News
March 15, 2019
Fish & Richardson Named 2019 “Intellectual Property Firm of the Year” in the U.S. by Benchmark Litigation; Wins “National Impact Case”
Fish & Richardson Named 2019 “Intellectual Property Firm of the Year” in the U.S. by <i>Benchmark Litigation</i>; Wins “National Impact Case”
Press Release
News
November 20, 2018
Fish & Richardson Wins Two Jury Verdicts in Successive Weeks for Power Integrations
Fish & Richardson Wins Two Jury Verdicts in Successive Weeks for Power Integrations
Press Release
News
May 22, 2019
Fish & Richardson Announces 32 Attorneys Named “IP Stars” by Managing Intellectual Property Magazine
Top Trademark Law Firm
Press Release
News
September 27, 2018
Fish & Richardson Announces 13 Principals Named 2018 “Life Sciences Stars” by LMG Life Sciences
Fish & Richardson Announces 13 Principals Named 2018  “Life Sciences Stars” by LMG Life Sciences
Press Release
News
August 15, 2018
47 Fish Attorneys Named to The Best Lawyers in America® 2019 List
47 Fish Attorneys Named to The Best Lawyers in America® 2019 List
Press Release
News
June 14, 2018
Fish Receives Top “Gold” Ranking from IAM Patent 1000 for National Patent Litigation Practice
Fish Receives Top “Gold” Ranking from <i>IAM Patent 1000</i> for National Patent Litigation Practice
Press Release
News
May 22, 2018
Fish & Richardson Receives Top “Band 1” National Rankings for Intellectual Property and ITC Practices in Chambers USA 2018
Fish & Richardson Receives Top “Band 1” National Rankings for Intellectual Property and ITC Practices in <i>Chambers USA</i> 2018
Press Release
News
May 21, 2018
Fish & Richardson Announces 39 Attorneys Named “IP Stars” by Managing Intellectual Property Magazine
Fish & Richardson Announces 39 Attorneys Named “IP Stars” by <i>Managing Intellectual Property</i> Magazine
Press Release
News
March 27, 2018
Fish & Richardson Wins Major ITC Patent Case for Aspen Aerogels
Fish & Richardson Wins Major ITC Patent Case for Aspen Aerogels
Press Release
Event
March 18th, 2015
Managing IP 8th Annual North America Awards Ceremony
Speaking Engagement
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