David H. Herrington handles high-stakes intellectual property and commercial disputes in both domestic and cross-border matters.

David has helped his clients achieve victories in both pursuing and defending against claims of patent infringement, trade secret misappropriation, trademark infringement, and copyright infringement, as well as disputes concerning IP licenses and employment matters. He has led multiple IP and commercial suits through trial and appeal and in international arbitrations. He also counsels on IP and employment issues in the transactional context, including licensing, mergers and acquisitions, and capital markets transactions.

David has devoted substantial efforts to pro bono work. He served as Chair of Cleary’s Pro Bono practice, and currently serves on the advisory board of directors of the Lawyers’ Committee for Civil Rights Under Law. He was a leader of the team that represented former Tennessee death row inmate Erskine Johnson (now known as Ndume Olatushani), winning our client’s freedom by overturning his death sentence and conviction. The team’s work has been profiled in The Am Law Daily and the New York Law Journal, and David received the New York City Bar Association’s inaugural Norman Redlich Capital Defense Pro Bono Award.

David joined the firm in 1991.

Notable Experience

  • In re Certain Botulinum Toxin Products, representing Medytox, Inc. in successful cross-border trade secret misappropriation suit in the International Trade Commission, obtaining exclusion order against accused products.

  • SNMP Research Inc. v. Nortel Networks Inc., representing Nortel Networks Inc. in defending against claims of copyright infringement and breach of software license, obtaining ruling in client’s favor following bench trial.

  • Amkor Technology, Inc. v. United Test and Assembly Center Ltd., successfully defending client against claims of breach of patent license, obtaining multiple rulings in client’s favor and successful resolution of suit.

  • Peoples Federal Savings Bank v. People’s United Bank, successfully defending People’s United Bank against claims of trademark infringement in district court and on appeal.

  • Nortel Networks, Inc. v. Communications Test Design, Inc., representing Nortel Networks, Inc. in asserting claims for trade secret misappropriation, obtaining favorable rulings and successful resolution of matter.

  • People’s United Bank v. PeoplesBank, winning ruling in favor of client People’s United Bank in trademark infringement suit following bench trial and defending victory on appeal.

  • Marguerite Hoffman v. L&M Arts, et al., winning judgment as a matter of law in favor of client following trial in dispute concerning sale of Mark Rothko painting.

  • Honeywell International Inc. v. Hamilton Sundstrand Corporation, representing Hamilton Sundstrand, a division of United Technologies Corporation, in successfully defending against patent infringement suit, culminating in en banc Federal Circuit decision in client’s favor.

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Selected Activities

  • Member of Advisory Board of Directors, The Lawyers’ Committee for Civil Rights Under Law
  • Member, the Licensing Executives Society and Licensing Executives Society International

Publications

The Supreme Court’s Decision in Google v. Oracle: Transformative Use of Popular Code Can Be ‘Fair Use’,” Cleary Gottlieb Alert Memorandum, April 9, 2021 (co-authored with Daniel Ilan, Arminda B. Bepko, Daniel Montgomery and Leila Mgaloblishvili)

Why Arbitrate International IP Disputes?” GAR: The Guide to IP Arbitration - First Edition, February 9, 2021 (co-authored with Zachary O’Dell and Leila Mgaloblishvili)

“Preliminary and Final Remedies,” Chapter in Arbitration of International Intellectual Property Disputes (2nd Ed.), May 2021 (co-authored with Alexandra K. Theobald)

Supreme Court Sharply Limits Standing for ERISA Plaintiffs in a Decision With Far-Reaching Implications,” Cleary Gottlieb Alert Memorandum, June 11, 2020 (co-authored with Thomas J. Moloney, Arthur H. Kohn and Lucas Hakkenberg) 

Supreme Court Holds That Willful Infringement Is Not a Prerequisite for Recovery of Infringer’s Profits in Trademark Infringement Suits,” Cleary Gottlieb Alert Memorandum, April 27, 2020 (co-authored with Daniel Ilan, Arminda B. Bepko and Michelle Butler)

Supreme Court Decides Constitutionality and Scope of Inter Partes Review of Patents,” Cleary Gottlieb Alert Memorandum, May 2, 2018 (co-authored with Arminda Bepko).

The Top Intellectual Property Decisions Of 2017: Their Practical Impact And Strategies For Addressing Them,” Cleary Gottlieb Alert Memorandum, January 22, 2018 (co-authored with Lawrence Friedman and Arminda Bepko).

TCL v. Ericsson: Landmark Judgment on FRAND Licensing,” Cleary Gottlieb Alert Memorandum, January 9, 2018 (co-authored with Maurits Dolmans).

Court Strikes Down The Lanham Act’s Bar On Registration Of Disparaging Trademarks,” Cleary Gottlieb Alert Memorandum, June 21, 2017 (co-authored with Lawrence Friedman and Arminda Bepko). 

The Supreme Court’s Lexmark Ruling On Patent Exhaustion: The Strategic Implications For Patentees,” Cleary Gottlieb Alert Memorandum, June 5, 2017 (co-authored with Lawrence Friedman, Daniel Ilan and Arminda Bepko).

Recent Notable Intellectual Property Decisions and a Look Ahead,” Intellectual Property and Technology Law Journal, May 2017 (co-authored with Lawrence Friedman and Arminda Bepko).

Supreme Court Limits Where Patent Infringement Lawsuits May Be Filed,” Cleary Gottlieb Alert Memorandum, May 24, 2017 (co-authored with Lawrence Friedman and Arminda Bepko).

Supreme Court Limits U.S. Patent Infringement Liability for Goods Sold Overseas,” Intellectual Property and Technology Law Journal, May 2017 (co-authored with Lawrence Friedman and Arminda Bepko).

The Supreme Court Limits U.S. Patent Infringement Liability For Goods Sold Overseas,” Cleary Gottlieb Alert Memorandum, February 27, 2017 (co-authored with Lawrence Friedman and Arminda Bepko).

Notable IP Decisions of 2016, and a Look Ahead to 2017,” Cleary Gottlieb Alert Memorandum, February 16, 2017 (co-authored with Lawrence Friedman and Arminda Bepko).

“The Supreme Court Relaxes Standard for Enhanced Damages in Patent Infringement Suits,” Intellectual Property and Technology Law Journal, September 2016 (co-authored with Lawrence Friedman and Tom Kessler).

“The Supreme Court Clarifies Standard for Attorneys’ Fee Awards in Copyright Infringement Cases,” Intellectual Property and Technology Law Journal, September 2016 (co-authored with Lawrence Friedman and Tom Kessler).

“President Obama Signs The First Federal Trade Secrets Law, Supplementing State Law protections Against Trade Secret Misappropriation,” Cleary Gottlieb Alert Memorandum, May 13, 2016 (co-authored by Lawrence Friedman and Arminda Bepko).

“Congress Passes The First Federal Trade Secrets Law,” Cleary Gottlieb Alert Memorandum, May 2, 2016 (co-authored with Lawrence Friedman and Arminda Bepko).

“Federal Circuit Confirms Strength of U.S. Patent Rights by Reaffirming Its Prior Rulings Against Foreign Patent Exhaustion and in Favor of Post-Sale Restrictions,” Intellectual Property and Technology Law Journal, May 2016 (co-authored with Lydia Halpern).

“Fourth Circuit Permits Foreign Trademark Owner to Assert Lanham Act Claims,” Cleary Gottlieb Alert Memorandum, April 21, 2016 (co-authored with Lawrence Friedman, Arminda Bepko and Thomas Kessler).

“Notable Intellectual Property Cases of 2015, and a Look Ahead to 2016,” Intellectual Property and Technology Law Journal, April 2016 (co-authored with Lawrence Friedman, Arminda Bepko and Tom Kessler).

“Supreme Court Finds ‘First Sale’ Copyright Doctrine Applies to Copies Lawfully Made and First Sold Abroad,” Intellectual Property and Technology Law Journal, June 2013 (co-authored with Daniel Ilan, Megan Prunella and Sarah Koper).

“Makes Substantial Changes To Patent Law With The America Invents Act,” Intellectual Property and Technology Law Journal, December 2011.

“Preliminary Injunctions: After ‘eBay’ and ‘Salinger,’ Tougher Standard Applies in the Second Circuit,” New York Law Journal, August 16, 2010 (co-authored with Lawrence Friedman).

“Trademark Battles in the Banking Field: When a Bank Acquisition Gives Rise to a Trademark Dispute,” The Banking Law Journal, May 2009.

“Name Calling: Why Do Banks Get into So Many Trademark Disputes?” IP Review, Issue 26, Summer 2009.

“Assessing Damages When an Injunction Is Denied,” IP Law360, March 28, 2008.

“Purchase Price Accounting Arbitration: Why Courts Sometimes Find That Disputes About Purchase Price Are Not Subject To Purchase Price Arbitration,” Mealey’s International Arbitration Report, October 2011.

“Whether ‘Foreign Cubed’ Securities Class Actions Fit in U.S. Courts,” New York Law Journal, February 17, 2009 (co-authored with Lewis Liman).

“The Developing Privilege for Regulatory Communications with the SEC,” The Banking Law Journal, September 2007.

Events