Brett Foster
PEOPLE

Brett Foster

Partner
foster.brett@dorsey.com

Overview

BRETT HELPS HIS CLIENTS PROTECT AND ENFORCE THEIR INTELLECTUAL PROPERTY RIGHTS, AND DEFENDS THEM AGAINST IMPROPER ATTACKS. HE HAS EXTENSIVE EXPERIENCE IN PATENT, TRADEMARK, TRADE SECRET, AND FALSE ADVERTISING CASES IN FEDERAL DISTRICT COURTS THROUGHOUT THE COUNTRY.

Brett is a partner in Dorsey’s Salt Lake City office. Brett is a leading national patent and intellectual property trial lawyer. He has served as lead counsel in cases throughout the Country (in 23 different states, mostly via pro hac vice admissions), and has taken many intellectual property cases to verdict. Brett and his trial teams are renowned for their success in high-stakes -- often bet the company -- complex cases.

Representative Trials

Brett has served as lead counsel for trial teams that have enjoyed many jury trial successes, including the following representative cases:

  • Brought home a willful infringement jury verdict in a District of Utah patent infringement case involving blending technology, and persuaded the Court to award enhanced damages (~$24 million collected judgment and permanent injunction). The United States Court of Appeals for the Federal Circuit affirmed the judgment;
  • Delivered a willful infringement verdict and an enhanced damages award (~$4 million collected judgment and permanent injunction) in a Northern District of Iowa patent case involving game call technologies. The United States Court of Appeals for the Federal Circuit affirmed that judgment;
  • Scored a ~$5 million verdict in a trade secret misappropriation and breach of confidentiality agreement case in the District of Utah involving turbine engine and aircraft wash technologies; and
  • Involved in trade secret misappropriation and confidentiality agreement jury trial in the District of Utah; $20 million jury verdict.

Representative Dispositive Motions

Brett has served as lead trial counsel for trial teams that have enjoyed many defense victories, including the following:

  • Summary judgment granted in a patent infringement case (non-infringement) in the Western District of Michigan involving equipment wash technologies;
  • Summary judgment granted in a patent infringement case (non-infringement) in the District of Arkansas involving archery technologies;
  • Summary judgment victory in a patent infringement case (non-infringement)  in the District of Alabama involving hunting decoy technologies; attorneys’ fees were also awarded;
  • Summary judgment granted in a patent infringement case (non-infringement) in the District of Ohio involving blending technologies;
  • Summary judgment granted resolving three separate patent infringement claims (non-infringement and invalidity) and three false advertising claims in the District of Utah involving equipment wash and turbine engine wash technologies;
  • Motion to dismiss granted in the District of Utah, resolving a patent infringement case (Section 101 invalidity) involving simulation software, affirmed by the Federal Circuit; and
  • Summary judgment granted in an breach of contract case in the District of Idaho involving agricultural equipment technology; attorneys’ fees were awarded.

Representative Preliminary Injunction Victories

Motion for a preliminary injunction are often a key, decisive battle-front in intellectual property cases. Such motions usually involve an evidentiary mini-trial before the court with live witnesses, including direct and cross-examination. Brett has lead trial teams that have delivered many difficult-to-get preliminary injunctions for his clients and his teams have defeated such motions, including the following representative cases:

  • Preliminary injunction granted in a District of Utah Lanham Act false advertising case involving dietary supplements, following an evidentiary hearing;
  • Preliminary injunction ordered in a District of Utah patent infringement case involving archery technologies, following an evidentiary hearing;
  • Two consecutive preliminary injunctions granted in a District of Nevada patent and trade dress case involving firearms technology, affirmed by the Ninth Circuit Court of Appeals;
  • Preliminary injunction issued in a District of Kansas patent infringement case involving ozone technologies, after an evidentiary hearing;
  • Preliminary injunction motion denied by the District of Utah in a copyright matter, after an evidentiary hearing.

Synergistic Work of Prosecution and Litigation Teams

Post grant proceedings at the USPTO’s PTAB have become a critical part of patent litigation. Brett and his trial teams work seamlessly with Dorsey’s patent prosecution teams, where are led by his brother and partner since 1994, Grant Foster, and Mark Miller, his partner since 2004. Brett has assisted Dorsey’s PTAB post grant team in invalidating a number of asserted patents in post grant proceedings. Notably, Brett and Grant argued back-to-back appeals at the Federal Circuit relating to a successful patent verdict and PTAB victories on the asserted patents. The synergistic teamwork of the patent prosecution and litigation teams is a key to their consistent success in patent litigation.

Favorable Settlements

Statistically, most intellectual property cases settle. Brett not only zealously leads his trial teams in litigation, but he also enjoys the skill set of negotiating effective settlements for his clients.

Honors and Recognition

Chambers USA has consistently recognized Brett as a leader in Intellectual Property.  Chambers USA ranks Brett in the elite “Band 1” individual category. Brett has also earned the distinction of being among The Best Lawyers in America for many years. In 2021, Best Lawyers named Brett the “Salt Lake City Lawyer of the Year” in Litigation-Patent. Utah Business Magazine has also recognized Brett as one of “Utah’s Legal Elite” for many years. He has been recognized by Benchmark Litigation has recognized him as a “Local Litigation Star”. Brett has garner the “IP Star” recognition by Managing Intellectual Property for several years. IAM Patent 1000 for many years has also recognized Brett as one of the world’s leading patent litigation professionals.  

 

Education & Admissions

Brigham Young University (J.D., 1990), cum laude, Student Bar Association President, 1989-1990, Journal of Public Law, Associated Editor, Brigham Young University Law School

University of Utah (B.S., Accounting, 1987), With Honors

Admissions

  • Arizona
  • Utah

Experience

Representative Litigation

Patent Litigation

  • Permanent injunction, willful infringement jury verdict, enhanced damages, $20 million judgment affirmed by the Federal Circuit (blending technology).
  • Summary judgment victory in defending three patent infringement claims on three patents and four false advertising and unfair competition claims (equipment wash technologies).
  • Permanent injunction, willful infringement jury verdict, and enhanced damages, multi-million dollar judgment affirmed by the Federal Circuit (game call technology).
  • Summary judgment victory in defending patent case (firearms technology).
  • Permanent injunction following entry of summary judgment on all patent infringement claims and against all patent infringement defenses (equipment wash technologies).

Trademark Litigation

  • Dismissal of trademark infringement claim (foot insole technology).
  • Summary judgment in favor of defendant (game call technology).
  • Two preliminary injunctions on trademark and trade dress infringement cases, successful Ninth Circuit appeal, and permanent injunction (firearms technology).
  • False advertising preliminary injunction in favor of plaintiff on false advertising under the Lanham Act (dietary supplement technologies).

Trade Secret Litigation

  • Multi-million dollar trade secret misappropriation jury verdict (turbine engine wash, air craft wash and equipment wash technologies).
  • Dismissal of trade secret misappropriation claims on summary judgment (agricultural equipment technology).
  • Jury trial on trade secret misappropriation claim and breach of confidential disclosure agreement (medical products technology).

News & Resources

News & Press Mentions

18 Dorsey Lawyers Recognized by Benchmark Litigation
Super Lawyers Recognizes 16 Dorsey Attorneys in Salt Lake City
IAM Patent 1000 Recognizes 13 Dorsey Attorneys in World’s Leading Patent Professionals 2021
Seventeen Dorsey Attorneys Ranked as Managing Intellectual Property 2021 IP Stars
Twenty-three Dorsey Attorneys Named to Utah Legal Elite
IAM Global Leaders Recognizes Four Dorsey Attorneys for 2021
Benchmark Litigation Recognizes 17 Dorsey Lawyers
Managing Intellectual Property Ranks Sixteen Dorsey Attorneys as 2020 IP Stars
IAM Patent 1000 Recognizes 13 Dorsey Attorneys in World’s Leading Patent Professionals 2020
Super Lawyers Recognizes 21 Dorsey Attorneys in Salt Lake City
Twenty-two Dorsey Attorneys Named to Utah ‘Legal Elite’
IAM Global Leaders Recognizes Four Dorsey Attorneys for 2020
Benchmark Litigation Recognizes 17 Dorsey Lawyers
IAM Patent 1000 Recognizes 12 Dorsey Attorneys in World’s Leading Patent Professionals 2019
Super Lawyers Recognizes 22 Dorsey Attorneys in Salt Lake City
Managing Intellectual Property Ranks Seventeen Dorsey Attorneys as 2019 IP Stars
Chambers USA 2019 Recognizes Dorsey Lawyers and Practices
Twenty Dorsey Attorneys Named to Utah ‘Legal Elite’
15 Dorsey Lawyers in Salt Lake City Selected for Inclusion in The Best Lawyers in America 2019 and 2019 Lawyers of the Year
Seventeen Dorsey Attorneys Ranked 2018 IP Stars
Chambers USA 2018 Recognizes Dorsey Lawyers and Practices in Salt Lake City
IP Hires: BakerHostetler, Dickinson Wright, Dorsey
Dorsey Scores Team Of 10 IP Attys From Holland & Hart
Dorsey Salt Lake City Office Continues to Add Key Talent
Personnel Changes at IP Law Firms, Organizations

Industries & Practices

  • Commercial Litigation
  • Intellectual Property
  • Intellectual Property Litigation
  • Patent Prosecution, Portfolio Strategy & Management
  • Trademark, Copyright & Advertising

Professional & Civic

Professional Achievements

  • Utah Bar Association, Member, 1992-present
  • State Bar of Arizona, Member, 1990-present
  • Utah State Bar, Intellectual Property Section, Member
  • Brigham Young University Law School, Alumni Board, 2000-2006

Accolades

Chambers USA 2021  Ranked in Chambers USA 2020  Ranked in Chambers USA 2019 Leading Individual  Chambers USA 2018 Leading Individual

Contributed 50+ Pro Bono Hours in 2020

  • Contributed more than 50 Challenge pro bono hours, 2020
  • Chambers – Band 1 individual, and Intellectual Property group
  • The Best Lawyers in America©, 2013-2022
  • Named "Salt Lake City Lawyer of the Year" in Litigation-Patent by Best Lawyers®, 2021
  • Recognized in IAM Global Leaders, 2020-2021
  • IAM Patent 1000, one of the world’s leading patent practitioners
  • Utah Business Magazine, Utah Legal Elite, Intellectual Property
  • Mountain States Super Lawyers®, Intellectual Property
  • Chambers USA: America's Leading Lawyers for Business, Intellectual Property
  • Benchmark Litigation, Local Litigation Star
  • Managing Intellectual Property, IP Star
Brett Foster