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   3Kevin M. Flowers, Ph.D.Chicago(312) 474-6615kflowers@marshallip.comkflowers@marshallip.comMarshall Gerstein & Borun LLPmarshallip.commarshallip.comflowerskevin.jpgIntellectual Property LawPatent Law
Kevin M. Flowers,
Marshall Gerstein & Borun LLP
233 S Wacker Dr Ste 6300
Chicago IL 60606
Ph.(312) 474-6615 Fx.(312) 474-0448
Recommended by peers in:
Intellectual Property Law
Patent Law
Advisory Board Member
County:  Cook
Litigator:  Yes

Practice Description:  
For more than a decade, Kevin has successfully protected billion-dollar-per-year products for leading pharmaceutical and biotechnology companies in high-stakes patent-infringement litigation. As a first-chair trial attorney, he relies on his sure and rapid understanding of the technology as a Ph.D. scientist, his years of teaching experience before he became an attorney, and his trial instincts (developed very early in his career and continually honed ever since) to consistently persuade judges and juries to rule in his clients' favor on complex legal and scientific issues. On the weekends, Kevin is also an accomplished competitive triathlete, runner, cyclist, and cross-country skier.

Notable Cases and Results:  
Amgen Inc.* v. F. Hoffmann La Roche (D. Mass.) (patents covering Epogen): We represented Amgen in this case involving Amgen's patents covering recombinant human erythropoietin ("rEPO"), a hormone that stimulates the production of red blood cells (Amgen's rEPO product, EPOGEN, is one of the most successful biotech products ever, with annual U.S. sales totaling more than $2.5 billion). After a six-week trial, the Boston jury returned a verdict in favor of Amgen, finding that Roche's proposed production, importation and sale of its pegylated form of rEPO, referred to as MIRCERA, would infringe nearly all of the asserted claims, and that those claims are not invalid. The court thereupon entered both preliminary and permanent injunctions against Roche. On appeal, the Federal Circuit affirmed the judgment. The case settled shortly thereafter, with Roche agreeing to an injunction against marketing its product.

Vanderbilt Univ. v. ICOS Corp.* (D. Del.) (patents covering Cialis): We represent ICOS (a wholly owned subsidiary of Eli Lilly) in this case in which Vanderbilt alleged that Vanderbilt's scientists should have been listed as co-inventors on the patents covering Eli Lilly's blockbuster anti-impotence drug Cialis. Kevin tried this case before then-Chief Judge Sue Robinson in the District of Delaware. Through the testimony of the inventor and his research-scientist colleagues, the use of key documents illustrating the independent nature of the inventor's work, and the testimony of expert witnesses in medicinal chemistry and drug discovery, we were able to defeat Vanderbilt's inventorship challenge, resulting in a judgment in favor of ICOS in January 2009. In Vanderbilt's subsequent appeal, Kevin was also successful in persuading the Federal Circuit to affirm the judgment in favor of ICOS.

Applied Biosystems, Inc. v. Illumina, Inc. et al.* (N.D. Cal.) (patents covering ligation-based DNA sequencing methods): We represented Illumina and its wholly owned subsidiary, Solexa, in this case in which AB alleged that an AB in-house attorney wrongfully filed a patent application and assigned it to Solexa after he left AB. To win the case, we proved that the inventions did not fall within the scope of the inventor's Employee Invention Agreement with AB because he developed the inventions on his own time, without using AB's resources, and because the inventions did not relate to AB's DNA-sequencing business at the time. To do so, we utilized direct- and cross-examinations of former AB scientists (including AB's founder), and direct testimony from the inventor himself, to persuade the jury that during the critical period, AB focused its DNA sequencing business on a method completely unlike the inventions-at-issue, and that AB had specifically rejected methods of DNA sequencing that were related to those inventions. In AB's subsequent appeal, Kevin was also successful in persuading the Federal Circuit to affirm the jury's ownership verdict in favor of Illumina.

Bar Admissions:  
U.S. Court of Appeals, Federal Circuit
U.S. District Court, Northern District of Illinois, Trial Bar
U.S. Patent and Trademark Office
Admitted to practice pro hac vice in various district courts throughout the United States

Year of Birth:  1965

Law School:  
The Ohio State University Moritz College of Law, J.D.

Undergraduate School:  
The Ohio State University, B.S., biological sciences

Graduate School:
Pennsylvania State University, Ph.D., cellular and molecular physiology
The Ohio State University, M.A., exercise physiology

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