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Attorneys of the Year: Michael Florey

Fish & Richardson

In the world of intellectual property disputes where millions of dollars are often at stake, Minneapolis attorney Michael Florey scored a precedent-setting legal victory in 2013 in a decade-old patent dispute.

Florey, a partner at Fish & Richardson, has lead his legal team in successfully deflecting four patent claims brought by Baxter International against his client Fresenius USA and getting an early $150 million damages award overturned.

The case took 10 years, two trials, three Federal Circuit appeals, and a reexamination at the U.S. Patent Office before Fresenius would be free from liability. To prevail, Florey had to balance federal circuit advocacy with complex post-grant review procedures.

In Fresenius USA, Inc. and Fresenius Medical Care Holdings, Inc. v. Baxter International, Inc. and Baxter Healthcare Corporation the Federal Circuit affirmed the U.S. Patent Office’s reexamination of an issued patent to Baxter and its decision to nullify that patent.

The Federal Circuit’s ruling, in the highly-watched case by the IP bar, set a new precedent that Florey expects will change how high-tech companies protect and defend their intellectual property. The ruling means the Patent Office can reexamine an issued patent and its decision can affect the outcome of an active patent litigation, including damages, he said.

Florey credited Fresenius USA for persevering in the “10 year knock-out patent fight.

“In the end, we felt we would win, that the law was on our side. That gave the backbone for the client to keep fighting and not settle,” Florey said of the dispute over Fresenius’s 2008K hemodialysis machine.

(Baxter International has until February to decide if it will appeal the Federal Circuit’s decision to the U.S. Supreme Court, Florey said.)

Florey, 50, has been a lawyer for 25 years; his patent practice spans medical device manufacturing and electrical and computer technology.  He is also active in other legal circles, including the Twin Cities Diversity in Practice, an association of law firms and corporate legal departments aimed at encouraging people of color to become and remain lawyers.

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