Jeffrey A. Lamken

Jeff Lamken, a nationally recognized appellate practitioner, has argued 29 cases before the U.S. Supreme Court and briefed dozens more on a wide range of topics, including administrative law, antitrust, bankruptcy, civil rights, criminal procedure, energy, intellectual property, searches and seizures, separation of powers, and telecommunications. He has handled matters in virtually all of the federal courts of appeals. He possesses particularly deep expertise in the specialized Federal Circuit. Mr. Lamken also develops, briefs, and argues critical motions in trial matters.

Before founding MoloLamken, Mr. Lamken headed Baker Botts’ Supreme Court and Appellate Practice in Washington, D.C. Mr. Lamken served as an Assistant to the Solicitor General in the U.S. Department of Justice and was a partner in the Washington, D.C. litigation boutique Kellogg, Huber & Hansen. He clerked for the Honorable Sandra Day O’Connor of the U.S. Supreme Court and the Honorable Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit.

Since 2005, Mr. Lamken has been recognized in the Chambers USA Guide to America’s Leading Business Lawyers as a “Band 1” appellate practitioner. The 2022 and 2023 editions characterize him as a “go-to for major appeals with significant commercial and public policy implications, particularly before the Supreme Court.”  Emphasizing his “strength in intellectual property matters,” the 2022 edition lauds his “unique combination of brilliance and humility.” The 2020 edition similarly underscores his client-focused dedication and thinking, describing Mr. Lamken as someone who “delivers the goods.” The 2019 edition describes him as “expert at speaking the court’s language,” while the 2018 edition hails him as “an exceptional communicator and extraordinary writer”—according to one client, “hands down one of the smartest, most able lawyers I have ever met.” The 2017 edition heralds his “exquisite” draftsmanship. Earlier editions describe him as “outstanding,” “incredibly knowledgeable and quick to understand issues,” “a real leading player,” and “a superstar lawyer”—“a fierce advocate” with a “very detailed” approach. Peers laud Mr. Lamken as “wonderfully talented” and “a joy to work with.”

A member of the American Academy of Appellate Lawyers, Mr. Lamken has been honored as one of Washington, D.C.’s top 10 lawyers by Law & Politics, one of the “Best Lawyers in America,” a Washingtonian Top Lawyer, and a member of the “Fab Fifty,” American Lawyer’s list of the 50 most promising litigators under 45.

Mr. Lamken received his J.D. from Stanford Law School, where he was the Nathan Abbott Scholar (highest cumulative GPA), a member of the Order of the Coif, and a Senior Editor of the Stanford Law Review. Before attending law school, Mr. Lamken graduated with a B.A. in Political Science, magna cum laude, from Haverford College. There, he was awarded the Department Prize in Mathematics, earned the Kurzman Prize in Political Science, and was elected to the Phi Beta Kappa honor society.

Representative Matters

Selected Cases Argued Before the United States Supreme Court

• Amgen Inc. v. Sanofi, 143 S. Ct. 1243 (2023) (whether enablement is governed by the statutory requirement that the specification teach those skilled in the art to “make and use” the claimed invention, or whether it must instead enable those skilled in the art “to reach the full scope of claimed embodiments” without undue experimentation)
• National Pork Producers Council v. Ross, 143 S. Ct. 1142 (2022) (whether a California statute that bans all in-state sales of pork from pigs raised in inhumane conditions violates the Dormant Commerce Clause, where the vast majority of pork production occurs outside of California, and whether the allegations challenging such a statute state a claim under Pike v. Bruce Church)
• United States v. Arthrex, Inc., 141 S. Ct. 549 (2021) (whether the Patent and Trial Appeal Board’s administrative patent judges are appointed in violation of the Appointments Clause—and if so, what the remedy for the violation should be)
• Frank v. Gaos, 139 S. Ct. 1041 (2019) (whether a class-action settlement that provides for a cy presdistribution of proceeds, but no direct distribution to class members, is “fair, reasonable, and adequate” and supports class certification)
• Hasty v. Abbasi, 582 U.S. 120 (2017) (whether Bivens extends to conduct by prison officials in connection with the confinement of foreign nationals detained in a terrorism investigation)
• Bank Markazi v. Peterson, 578 U.S. 212 (2016) (whether a statute that effectively directs a particular result in a single pending case violates separation of powers)
• First Am. Fin. Corp. v. Edwards, cert. dismissed as improvidently granted, 567 U.S. 756 (2012) (representing respondent) (whether Section 8 of the Real Estate Settlement Procedures Act of 1974 gives title-insurance purchasers constitutional standing to sue title insurers absent an allegation that the insurers’ statutory violations had any impact on the price or quality of the services)
• Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010) (whether the Sarbanes-Oxley Act, which created the Public Company Accounting Oversight Board, violates separation of powers or the Appointments Clause of the U.S. Constitution)
• Mac’s Shell Serv., Inc. v. Shell Oil Prods. Co., 559 U.S. 175 (2010) (whether a franchisee may recover for “constructive termination” or “constructive non-renewal” under the Petroleum Marketing Practices Act when the franchisee continues to operate the franchise)
• NRG Power Mktg., LLC v. Me. Pub. Utils. Comm’n, 558 U.S. 165 (2010) (whether the Mobile-Sierra doctrine, which protects the integrity of wholesale energy contracts, applies when a rate set by contract is challenged by an entity that was not a party to the contract)
• City of Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005) (whether persons aggrieved by violations of the 1996 Telecommunications Act may bring an action for damages and attorney’s fees under 42 U.S.C. §§ 1983, 1988)
• Barnhart v. Thomas, 540 U.S. 20 (2003) (whether a claimant’s ability to perform her former job precludes an award of disability benefits where that job no longer exists in significant numbers)
• Jinks v. Richland County, 538 U.S. 456 (2003) (whether 28 U.S.C. § 1367(d), which tolls state limitations periods while claims are pending in federal court, may constitutionally be applied in a suit against a state’s political subdivisions)
• Overton v. Bazzetta, 539 U.S. 126 (2003) (whether prisoners have a constitutional right to receive visits while incarcerated, and whether Michigan’s prison policies violate such a right)
• Price v. Vincent, 538 U.S. 634 (2003) (whether reconsideration of an order granting a directed verdict of acquittal violates double jeopardy)
• Wis. Dep’t of Health & Family Servs. v. Blumer, 534 U.S. 73 (2002) (whether the “income-first” methodology for determining eligibility is permissible under the Medicaid statute)

Selected Party Briefs in the United States Supreme Court

• AMG Cap. Mgmt. v. Fed. Trade Comm'n, 141 S. Ct. 1341 (2021) (whether Section 13(b) of the FTC Act, which mentions only “injunctions,” authorizes the Commission to seek monetary remedies)
• Rubin v. Islamic Republic of Iran, 138 S. Ct. 816 (2018) (whether a 2008 amendment to the Foreign Sovereign Immunities Act provides a freestanding waiver of immunity that permits executing on a sovereign nation’s property)
• Mohamad v. Palestinian Authority, 566 U.S. 449 (2012) (whether the term “individual” in the Torture Victim Protection Act extends beyond natural persons)
• Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804 (2011) (whether private securities fraud plaintiffs must prove loss-causation to obtain class certification)
• Jones v. Harris Assocs., 559 U.S. 335 (2010) (establishing the standard for determining whether an investment adviser’s fees violate its statutory fiduciary duty to the fund it manages)

Selected Amicus Briefs in the United States Supreme Court

• Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 138 S. Ct. 1365 (2018) (brief of amicus curiae Pharmaceutical Research & Manufacturers of America addressing whether inter partesreview—an adversarial process used by the Patent and Trademark Office to analyze the validity of existing patents—violates the U.S. Constitution by extinguishing private property rights through a non-Article III forum)
• Janus v. Am. Fed’n of State, Cty., & Mun. Emps., Council 31, 138 S. Ct. 2448 (2018) (brief of amicus curiae American Federation of Government Employees addressing whether public-sector union agency-fee arrangements are unconstitutional under the First Amendment)
• Impression Prods., Inc. v. Lexmark Int’l, Inc., 581 U.S. 360 (2017) (brief of amicus curiae Qualcomm, Inc. addressing whether the sale of a patented product exhausts U.S. patent rights despite use restrictions and conditions in the sales contract)
• Hughes v. Talen Energy Mktg., LLC, 578 U.S. 150 (2016) (brief of amicus curiae NRG Energy, Inc. addressing the scope of FERC’s jurisdiction over, and federal preemption of, state energy initiatives)
• FERC v. Elec. Power Supply Ass’n, 577 U.S. 260 (2016) (brief of amici curiae economists addressing FERC’s economic justifications for its regulation of demand-response payments)
• Comptroller v. Wynne, 575 U.S. 542 (2015) (brief of amicus curiae U.S. Chamber of Commerce addressing whether a State can tax its residents on out-of-state income without providing a credit for out-of-state taxes)
• Broad. Cos. v. Aereo, Inc., 573 U.S. 431 (2014) (brief of amicus curiae Cablevision Systems Corp. in a copyright challenge to Aereo’s internet television retransmission service)
• Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898 (2014) (brief of amici curiae Yahoo! and other high-tech companies addressing the degree of particularity required for patent claims)
• Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208 (2014) (brief of amici curiae Microsoft, Adobe Systems, and Hewlett-Packard addressing the patent-eligibility of computer-implemented inventions under § 101 of the Patent Act)
• Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014), and Highmark Inc. v. Allcare Health Mgmt. Sys. Inc., 572 U.S. 559 (2014) (brief of amici curiae Yahoo! and other high-tech companies addressing the “exceptional case” standard for fee-shifting under § 285 of the Patent Act)
• EPA v. EME Homer City Generation, LP, 570 U.S. 916 (2013) (brief of amicus curiae U.S. Chamber of Commerce in a suit challenging the EPA’s rules implementing the interstate pollution restrictions of the Clean Air Act)
• Ass’n for Molecular Pathology v. Myriad Genetics, 569 U.S. 576 (2013) (brief of amicus curiae The Coalition for 21st Century Medicine addressing the patent-eligibility of isolated human DNA under § 101 of the Patent Act)
• Genesis HealthCare Corp. v. Symczyk, 569 U.S. 66 (2013) (brief of amicus curiae DRI—The Voice of the Defense Bar addressing whether a putative class action can continue when the named plaintiff’s claim becomes moot)
• Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (brief of amici curiae Altria Group and other leading U.S. companies addressing the need for significant proof of a general policy of discrimination to certify an employment-discrimination class action)
• Altria Grp. v. Good, 555 U.S. 70 (2008) (brief of amicus curiae U.S. Chamber of Commerce addressing whether federal law preempts state-law fraud challenges to FTC-authorized statements in cigarette advertising)
• Morgan Stanley Capital Grp. v. Pub. Util. Dist. No. 1 of Snohomish Cty., 554 U.S. 527 (2008) (brief of amici curiae economists addressing the standard for abrogation of long-term energy contracts under the Mobile-Sierra doctrine)

Representative Matters in the United States Courts of Appeals

• In re LTL Management LLC, 58 F.4th 738 (3d Cir. 2023) (successfully obtained unanimous decision ordering dismissal of Johnson & Johnson’s “Texas Two-Step” bankruptcy for lack of good faith, overturning lower court’s refusal to dismiss).
• SAS Institute v. World Programming Ltd., 64 F.4th 1319 (Fed. Cir. 2023) (successfully defended district court ruling that plaintiff SAS Institute had failed to show copyrightable subject matter when asserting claims for infringement of non-literal elements)
• Uniloc 2017 v. Google, 52 F.4th 1352 (Fed. Cir. 2022) (successfully overturned district court decision holding that Uniloc standing lacked standing to sue for patent infringement)
• Continental Auto Systems v. Avanci, 27 F.4th 326 (5th Cir. 2022) (successfully defended district court decision dismissing antitrust claims for lack of antitrust injury and failure to state a claim)
• Apple v. Wi-LAN, 25 F.4th 960 (Fed. Cir. 2022) (successfully defended determination that Apple infringed Wi-Lan’s radio-communications patents and obtained reversal of ruling that limited the scope of damages)
• Ericsson v. HTC, 12 F.4th 476 (5th Cir. 2021) (successfully defended determination that Ericsson’s licensing offers on 2G, 3G and 4G standard essential patents, which were based on price of mobile devices, complied with Ericsson’s obligation to license on fair, reasonable and non-discriminatory (or “FRAND”) terms)
• Genentech, Inc. v. Immunex Rhode Island Corp., 964 F.3d 1109 (Fed. Cir. 2020) (successfully obtained affirmance of district court decision denying motion to enjoin commercial marketing of Amgen’s biosimilar drug, in light of the Biologics Price Competition and Innovation Act’s requirements for notice of commercial marketing)
• Genentech, Inc. v. Amgen Inc., 796 F. App’x 726 (Fed. Cir. 2020) (whether the district court properly denied a motion to preliminarily enjoin commercial marketing of a biosimilar drug, in light of the plaintiff’s delay in seeking relief and pattern of licensing the asserted patents)
• Comcast v. ITC, 951 F.3d 1301 (Fed. Cir. 2020) (successfully obtained decision holding that the ITC's statutory authority to prohibit the importation of goods "that infringe" allows the ITC to stop the transportation of goods that are designed to be used in an infringing fashion, or, as part of an infringing system, after being imported into the United States)
• TCL Commc’n Holdings Ltd. v. Telefonaktiebolaget LM Ericcson, 943 F.3d 1360 (Fed. Cir. 2019) (successfully overturned district court decision purporting to set "fair, reasonable, and non-discriminatory" rate for standards-essential patents because the judgment violated the Seventh Amendment right to a jury trial)
• Merck Sharp & Dohme Corp. v. Wyeth LLC, 792 F. App’x 813 (Fed. Cir. 2019) (successfully obtained reversal of PTAB decision finding that Wyeth's patent on formulas for stabilizing multi-valent polysaccharide conjugate vaccines were not invalid as obvious)
• VirnetX v. Apple Inc., 792 F. App’x 796 (Fed. Cir. 2019) (successfully defended infringement verdict against Apple for patents covering Apple's redesigned VPN-On-Demand product, and obtained ruling that Apple is estopped from challenging patent validity)
• Green Mountain Glass, LLC v. Saint-Gobain Containers, Inc., 773 F. App’x 619 (Fed. Cir. 2019) (obtained summary affirmance of $50 million judgment for infringement of patents covering the manufacture of recycled glass products from waste glass of mixed colors)
• Continental Circuits LLC v. Intel Corp., 915 F.3d 788 (Fed. Cir. 2019) (successfully overturned district court decision that had limited the patent claims to printed circuits produced by a particular technique)
• VirnetX v. Cisco Sys., Inc., 748 F. App’x 332 (Fed. Cir. 2019) (obtained summary affirmance of $440 million damages award against Apple for infringing patents covering Apple’s FaceTime and VPN-on-Demand products)
• Sierra Club v. Va. Elec. & Power Co., 903 F.3d 403 (4th Cir. 2018) (successfully obtained reversal of district court decision holding that stored coal ash is a “point source” subject to the Clean Water Act’s permit requirement)
• Gilead Scis., Inc. v. Merck & Co., Inc., 888 F.3d 1231 (Fed. Cir. 2018) (whether the district court erred by invoking “unclean hands” to nullify a $200 million jury verdict and to bar Merck from asserting its patents against Gilead)
• United Parcel Serv., Inc. v. Postal Regulatory Comm’n, 890 F.3d 1053 (D.C. Cir. 2018) (whether the U.S. Postal Service properly allocates costs caused by competitive products, like parcel delivery, to those products)
• NRG Power Mktg., LLC v. FERC, 862 F.3d 108 (D.C. Cir. 2017) (whether FERC exceeded its authority under § 205 of the Federal Power Act by imposing a substantially different rate scheme than the one the utility had proposed)
• Advanced Energy Mgmt. Alliance v. FERC, 860 F.3d 656 (D.C. Cir. 2017) (whether FERC properly approved changes to PJM’s capacity performance rules)
• In re Fairfield Sentry Ltd., 690 F. App’x 761 (2d Cir. 2017) (whether a U.S. bankruptcy court in a Chapter 15 case must defer to a foreign insolvency court’s decision approving the foreign debtor’s sale of U.S. assets)
• In re Vivendi, S.A. Sec. Litig., 838 F.3d 223 (2d Cir. 2016) (successfully defended multi-million dollar securities fraud verdict; obtained rulings that (a) misrepresentations regarding "liquidity risk" are actionable under the federal securities laws, and (b) loss-causation was demonstrated even though the stock price did not move in response to individual misrepresentations)
• Drone Techs., Inc. v. Parrot S.A. & Parrot Inc., 838 F.3d 1283 (Fed. Cir. 2016) (successfully obtained reversal of a district court decision that had entered a default judgment on liability as a discovery sanction)
• McRO, Inc. v. Bandai Namco Games Am., Inc., 837 F.3d 1299 (Fed. Cir. 2016) (successfully overturned district court decision holding that a patent for automatically animating the lip synchronization and facial expressions of 3-dimensional characters was directed to an abstract idea that is not patent-eligible subject matter under § 101 of the Patent Act)
• Rubin v. Islamic Republic of Iran, 830 F.3d 470 (7th Cir. 2016) (whether 28 U.S.C. § 1610(g) provides a freestanding exception to sovereign immunity from attachment, and whether 28 U.S.C. § 1610(a) applies to a foreign sovereign’s property only when the foreign state itself uses the property in the U.S.)
• Hourani v. Mirtchev, 796 F.3d 1 (D.C. Cir. 2015) (whether the Racketeering Influenced and Corrupt Organizations Act extends to an alleged conspiracy to commit extortion abroad)
• NES Fin. Corp. v. JPMorgan Chase Bank, N.A., 556 F. App’x 12 (2d Cir. 2014) (whether plaintiff in fraud action proved damages and justifiable reliance, and whether the parties’ contract required additional payments)
• New Eng. Power Generators Ass’n, Inc. v. FERC, 757 F.3d 283 (D.C. Cir. 2014) (whether rules to mitigate uneconomic entry into ISO New England energy markets were arbitrary and capricious)
• United States ex rel. Nathan v. Takeda Pharm. N. Am., Inc., 707 F.3d 451 (4th Cir. 2013) (whether pharmaceutical company’s promotion of a drug for off-label purposes caused false claims to be presented to the government in violation of the False Claims Act), cert. denied, 134 S. Ct. 1759 (2014)
• Rambus Inc. v. Rea, 527 F. App’x 902 (Fed. Cir. 2013) (whether substantial evidence supported the Patent and Trademark Office’s finding that 25 patent claims were anticipated by an earlier patent)
• United States v. Danielczyk, 683 F.3d 611 (4th Cir. 2012) (whether, following Citizens United, the Federal Election Campaign Act’s categorical ban on corporate contributions to candidates violates the First Amendment), cert. denied, 133 S. Ct. 1459 (2013)
• Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276 (Fed. Cir. 2011) (en banc) (whether the elements of inequitable conduct should be made more exacting with respect to intent, materiality, and causation, and by excluding a “balancing” approach)
• Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc) (whether Bivens and the Torture Victim Prevention Act allow a foreign national claiming to have been tortured by foreign officials abroad to sue U.S. officials for alleged complicity), cert. denied, 560 U.S. 978 (2010)
• AES Sparrows Point LNG, LLC v. Wilson, 589 F.3d 721 (4th Cir. 2009) (whether state agency’s denial of a Clean Water Act water quality certificate for a proposed gas pipeline was untimely or otherwise invalid)
• Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (whether cable company’s remote-storage DVR infringes copyrights by allowing customers to record programming and store their recordings in a remote location), cert. denied, 129 S. Ct. 2890 (2009)
• AES Sparrows Point LNG, LLC v. Smith, 527 F.3d 120 (4th Cir. 2008) (whether county law making it illegal to build a liquefied natural gas terminal in a particular location is preempted by the Natural Gas Act), cert. denied, 555 U.S. 888 (2008)
• Kirch v. Liberty Media Corp., 449 F.3d 388 (2d Cir. 2006) (whether statements about a third party can support a defamation claim, and whether plaintiff proved claims of tortious interference with contract and prospective economic advantage)

Selected Amicus Briefs in the United States Courts of Appeals

• Oracle Am., Inc. v. Google LLC, 886 F.3d 1179 (Fed. Cir. 2018) (brief of amici curiae Microsoft, Red Hat, and Hewlett-Packard addressing fair-use doctrine in context of software copyrights)
• Wi-Fi One, LLC v. Broadcom Corp., 878 F.3d 1364 (Fed. Cir. 2018) (brief of amicus curiae Elm 3DS Innovations, LLC addressing the extent to which PTO decisions initiating inter partes review are subject to appellate review)
• Hickcox-Huffman v. U.S. Airways, Inc., 855 F.3d 1057 (9th Cir. 2017) (brief of amicus curiae Air Transport Association of America, Inc. addressing whether the Airline Deregulation Act preempts state-law claims arising out of delayed baggage)
• ClearCorrect Operating, LLC v. Int’l Trade Comm’n, 810 F.3d 1283 (Fed. Cir. 2015) (brief of amicus curiae Business Software Alliance addressing ITC jurisdiction over digital transmissions)
• Beer v. United States, 696 F.3d 1174 (Fed. Cir. 2012) (en banc) (brief of amicus curiae Federal Judges Association addressing cost-of-living adjustments for Article III judges), cert. denied, 133 S. Ct. 1997 (2013)
• TiVo Inc. v. EchoStar Corp., 646 F.3d 869 (Fed. Cir. 2011) (en banc) (brief of amicus curiae Association for Competitive Technology addressing the standard for judicial enforcement of patent injunctions)
• Bus. Roundtable v. SEC, 647 F.3d 1144 (D.C. Cir. 2011) (brief of amici curiae Institutional Investors, TIAA-CREF, and other funds addressing an SEC rule allowing shareholders to include director nominees in company proxy materials)