David R. Todd

David R. Todd’s practice focuses on intellectual property litigation, including patent, trademark, copyright, and trade secret litigation, and on client counseling matters requiring expertise in intellectual property law, including analyses of patent infringement and validity. He has participated as counsel in over 40 appeals at the U.S. Court of Appeals for the Federal Circuit and in a number of intellectual property actions in federal trial courts and at the Patent Trial and Appeal Board.

Mr. Todd served from 1997-1998 as a law clerk to the Honorable Randall R. Rader at the United States Court of Appeals for the Federal Circuit, which resolves patent appeals from all U.S. district courts as well as all appeals from the U.S. Patent and Trademark Office. Mr. Todd has participated in authoring a number of publications on patent law issues, has lectured on intellectual property issues, and currently serves as an adjunct professor of law at Brigham Young University where he has taught courses in patent law and intellectual property litigation.  He has also served as an author of amicus briefs filed on behalf of the American Intellectual Property Law Association in cases pending before the United States Supreme Court and the Federal Circuit.

• International Nutrition Co. v. Horphag Research Ltd., 257 F.3d 1324 (Fed. Cir. 2001) (affirming dismissal of complaint).
• Nautilus Group, Inc. v. ICON Health & Fitness, Inc. No. 03-1526 (Fed. Cir. Sept. 3, 2003) (granting stay of preliminary injunction pending appeal).
• Lifetime Products, Inc. v. GSC Technology Corp., 97 Fed. Appx. 327 (Fed. Cir. 2004) (affirming grant of preliminary injunction).
• Free Motion Fitness, Inc. v. Cybex Int’l, Inc., 423 F.3d 1343 (Fed. Cir. 2005) (vacating grant of summary judgment of noninfringement).
• Nautilus Group, Inc. v. ICON Health & Fitness, Inc., No. 05-1577 (Fed. Cir. Aug. 17, 2006) (affirming grant of summary judgment of noninfringement).
• Vita Mix v. Basic Holding, 581 F.3d 1317 (Fed. Cir. 2009) (affirming grant of summary judgment of no indirect infringement and reinstating invalidity defenses).
• Merit Healthcare Int’l, Inc. v. Merit Medical Systems, Inc., 721 Fed. Appx. 628 (9th Cir. 2018) (affirming dismissal of complaint for lack of “case or controversy”)
• DIRTT Environmental Solutions Ltd. v. Allsteel Inc., 731 Fed. Appx. 980 (Fed. Cir. 2018) (vacating PTAB decision in inter partes review)
• Stratus Networks, Inc. v. UBTA-UBET Communications Inc., 955 F.3d 994 (Fed. Cir. 2020) (affirming TTAB decision in opposition proceeding)
• Khan v. Hemosphere Inc., 825 Fed. Appx. 762 (Fed. Cir. 2020) (affirming dismissal for improper venue and service of process as well as grant of Rule 11 sanctions)

• Appeals
• Before the U.S. Supreme Court
• Before the U.S. Court of Appeals for the Federal Circuit
• Before the Patent Trial and Appeal Board of the U.S. Patent and Trademark Office

• Consulting & Opinions
• Patent Infringement Opinions
• Defensive Opinions of Non-infringement and/or Invalidity
• Design Around Strategies

• IP Litigation
• Patent Infringement
• Trademark Infringement
• Copyright Infringement
• Trade Secret Misappropriation

• J.D., summa cum laude, Order of the Coif, J. Reuben Clark Law School, Brigham Young University, 1997
• B.S., summa cum laude, Mechanical Engineering, Brigham Young University, 1994

• Utah State Bar
• Registered Patent Attorney, U.S. Patent and Trademark Office
• United States Supreme Court
• U.S. Court of Appeals for the Federal Circuit
• U.S. Court of Appeals for the Tenth Circuit
• U.S. Court of Appeals for the Ninth Circuit
• U.S. Court of Appeals for the Seventh Circuit
• Utah Supreme Court
• U.S. District Court for the District of Utah

• 2010-2023, Workman Nydegger Board of Directors
• 2020, The Best Lawyers in America®, “Lawyer of the Year” – Patent Litigation for Salt Lake City
• 2023, The Best Lawyers in America®, “Lawyer of the Year” – Patent Litigation for Salt Lake City
• 2018, The Best Lawyers in America®, “Lawyer of the Year” – Intellectual Property Litigation for Salt Lake City
• 2023, The Best Lawyers in America®, “Lawyer of the Year” – Intellectual Property Litigation for Salt Lake City
• 2015 – 2023, The Best Lawyers in America®
• 2008 – 2011, 2014 – 2022, “Utah Legal Elite,” Utah Business Magazine
• 2009 – 2022, Mountain States Super Lawyers

• American Intellectual Property Law Association (AIPLA)
• David K. Winder IP Inn of Court
• 2004-2006, Model Patent Jury Instructions Drafting Subcommittee, Federal Circuit Bar Association
• 2003-2005, 2015-2018 Amicus Committee, American Intellectual Property Law Association
• 1996-1997, Executive Editor, Brigham Young University Law Review
• American Bar Association
• Federal Circuit Bar Association

• “Life at the Federal Circuit,” Utah State Bar Intellectual Property Section (Sept. 2003)
• “Peer-to-Peer File Sharing After Grokster,” J. Reuben Clark Law School Alumni CLE Symposium (Oct. 2005)
• “Hot Topics in the Federal Circuit,” Utah State Bar Intellectual Property Section, Utah IP Summit (Feb. 2007)
• “The Origins and Special Jurisdiction of the U.S. Court of Appeals for the Federal Circuit,” CLE for IP and Appellate Sections of the Utah State Bar (October 2013)
• “This Term’s IP Cases at the Supreme Court: What’s Happened Already and What To Watch For,” CLE for IP Section of the Utah State Bar (May 2014)
• “IP Cases: The Year in Review,” Utah State Bar Intellectual Property Section, Utah IP Summit (Feb. 2015)
• “IP Cases: The Year in Review,” Utah State Bar Intellectual Property Section, Utah IP Summit (Feb. 2016)
• “IP Cases: The Year in Review,” Utah State Bar Intellectual Property Section, Utah IP Summit (Feb. 2017)
• “IP Cases: The Year in Review,” Utah State Bar Intellectual Property Section, Utah IP Summit (Feb. 2018)
• “IP Cases: The Year in Review,” Utah State Bar Intellectual Property Section, Utah IP Summit (Feb. 2019)
• “IP Cases: The Year in Review,” Utah State Bar Intellectual Property Section, Utah IP Summit (Feb. 2020)
• “IP Cases: The Year in Review,” Utah State Bar Intellectual Property Section, Utah IP Summit (Feb. 2021)
• “IP Cases: The Year in Review,” Utah State Bar Intellectual Property Section, Utah IP Summit (Feb. 2022)

• David R. Todd, “Georgia v. Public.Resource.Org, Inc.: Works Produced by Judges or Legislators in the Course of Their Official Duties Are Not Protected by Copyright, Including the Annotations in Georgia’s Official Code,” posted on www.wnlaw.com on May 13, 2020
• David R. Todd, “Romag Fasteners, Inc. v. Fossil Group, Inc.: Willfulness Is Not An ‘Inflexible Precondition’ for an Award of Defendant’s Profits in Trademark Infringement Cases,” posted to www.wnlaw.com on May 6, 2020
• David R. Todd, “Return Mail, Inc. v. United States Postal Service: The Federal Government Cannot use IPRs or Other AIA Post-Grant Reviews,” posted on wnlaw.com on June 11, 2019
• David R. Todd, “Impression Products v. Lexmark: Supreme Court Strengthens Doctrine of Patent Exhaustion,” posted on wnlaw.com on July 12, 2017
• Brief Amicus Curiae of the American Intellectual Property Law Association, Aqua Products, Inc. v. Matal, 872 F.3d 1290 (Fed. Cir. 2017) (en banc) (filed Oct. 4, 2016) (co-drafter)
• David R. Todd, “Lexmark v. Impression Products: En Banc Federal Circuit Reconfirms Pro-Patentee Limitations on Doctrine of Patent Exhaustion,” posted on www.wnlaw.com on April 4, 2016
• David R. Todd, “In re Tam: Federal Circuit Rules That First Amendment Requires Federal Government To Allow Registration of Disparaging Trademarks,” posted on www.wnlaw.com on January 19, 2016
• David R. Todd, “En Banc Federal Circuit Holds That Laches Will Still Limit Pre-Complaint Damages In Patent Cases And May Now Even Limit Permanent Injunctive Relief,” posted on www.wnlaw.com on September 28, 2015
• David R. Todd, “Federal Circuit Issues En Banc Decision Expanding Liability For Direct Infringement in ‘Divided Infringement’ Cases,” posted on www.wnlaw.com on August 28, 2015
• David R. Todd, “Commil v. Cisco: Belief That A Patent Is Invalid Is Not A Defense to Inducement,” posted on www.wnlaw.com on June 5, 2015
• David R. Todd, “Supreme Court Rules That Trademark Opposition Decisions by TTAB Can Provide Basis for Issue Preclusion in Federal Court,” posted on www.wnlaw.com on April 8, 2015
• David R. Todd, “Hana Financial v. Hana Bank: Supreme Court Holds That Trademark ‘Tacking’ Is A Question For Juries,” posted on www.wnlaw.com on January 29, 2015
• David R. Todd, “Teva v. Sandoz: Supreme Court Rules That, In Reviewing Patent Claim Constructions on Appeal, Factual Determinations Derived From Extrinsic Evidence Must Be Given ‘Clearly Erroneous’ Deference,” posted on www.wnlaw.com on January 28, 2015
• David R. Todd, “Supreme Court Rules That Aereo’s Real-Time Streaming of Over-the-Air Television Constitutes a Public Performance of Copyrighted Works,” posted on www.wnlaw.com on June 30, 2014
• David R. Todd, “Supreme Court Holds That Methods and Systems Providing “Generic Computer Implementation” of ‘Intermediated Settlement’ Are Not Eligible For Patenting,” posted on www.wnlaw.com on June 20, 2014
• David R. Todd, “Supreme Court Chooses Middle Ground in Formulating A Standard for Patent Claim Definiteness,” posted on www.wnlaw.com on June 6, 2014
• David R. Todd, “Supreme Court Limits Laches as a Defense in Copyright Infringement Suits,” posted on www.wnlaw.com on May 20, 2014
• David R. Todd, “U.S. Supreme Court Changes Standards for Attorney Fee Awards in Patent Cases,” posted on www.wnlaw.com on May 6, 2014
• David R. Todd, “Lexmark v. Static Control: Supreme Court Concludes That False Advertising Plaintiffs Need Not Be Direct Competitors,” posted on www.wnlaw.com on March 26, 2014
• David R. Todd, “En Banc Federal Circuit Again Declines to Apply ‘Clearly Erroneous’ Deference to Factual Findings in Patent Claim Construction Rulings,” posted on www.wnlaw.com on February 25, 2014
• David R. Todd, “Supreme Court Rules That Licensor Has Burden of Proving Infringement Even When Licensee Is The Plaintiff,” posted on www.wnlaw.com on January 28, 2014
• David R. Todd, “Federal Circuit Rules in the Exelixis / Novartis Cases that the USPTO Has Been Partially Miscalculating Patent Term Adjustment,” posted on www.wnlaw.com on January 17, 2014
• David R. Todd and Perry N. Brown, “U.S. Supreme Court Concludes that ‘Isolated’ DNA Is Not Patent-Eligible But cDNA Is,” posted on www.wnlaw.com on June 25, 2013
• David R. Todd, “Bowman v. Monsanto: U.S. Supreme Court Addresses Patent Exhaustion in the Context of Self-Replicating Technologies,” posted on www.wnlaw.com on May 30, 2013
• David R. Todd, “U.S. Supreme Court Holds That Copyright Is Subject to International Exhaustion,” posted on www.wnlaw.com on April 2, 2013
• Rick D. Nydegger, John M. Guynn, and David R. Todd, “Guidelines for Navigating the First-to-File Provisions of the AIA Taking Effect On March 16, 2013,” posted on www.wnlaw.com on February 15, 2013
• David R. Todd, “Several AIA Provisions Are Now In Effect As Of September 16, 2012,” posted on www.wnlaw.com on September 24, 2012
• David R. Todd, “The Federal Circuit Decides Akamai and McKesson Cases, Expanding Liability In Cases of Divided Infringement,” posted on www.wnlaw.com on September 19, 2012
• David R. Todd, “Global-Tech: Supreme Court Rules On the State of Mind Required for Inducing Infringement,” posted on www.wnlaw.com on August 13, 2011
• David R. Todd, “U.S. Supreme Court Decides To Keep ‘Clear and Convincing Evidence’ Standard for Invalidating Patents,” posted on www.wnlaw.com on August 13, 2011
• John C. Stringham & David R. Todd, “Stanford v. Roche – check your employment agreements,” posted on www.wnlaw.com on August 1, 2011
• Rick D. Nydegger & David R. Todd, Functional Claim Drafting In The Electronics, Computer And Software Arts, in Electronic And Software Patents: Law And Practice (Steven W. Lundberg & Stephen C. Durant eds., 2d ed. 2005 & 3d ed. 2011)
• Rick D. Nydegger, Jonathan W. Richards, & David R. Todd, Design Around Techniques, in Electronic And Software Patents: Law And Practice (Steven W. Lundberg & Stephen C. Durant eds., 2d ed. 2005 & 3d ed. 2011)
  Brief Amicus Curiae of the American Intellectual Property Law Association, Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 125 S. Ct. 2764 (2005) (filed Jan. 24, 2005) (principal drafter)
• Brief Amicus Curiae of the American Intellectual Property Law Association, Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc) (filed Sept. 17, 2004) (principal drafter)
• David R. Todd, Note, How Modern Treatment of 35 U.S.C. §112(6) Has Caused Confusion: Hilton Davis v. Warner-Jenkinson and the Right to a Jury on the Issue of Patent Infringement Under the “Equitable” Doctrine of Equivalents, 1996 BYU L. Rev. 141 (1996) (cited in Dawn Equipment Co. v. Kentucky Farms Inc., 140 F.3d 1009, 1021 n.4 (Fed. Cir. 1998) (Plager, J., additional views)