Kerry L. Timbers

Kerry L. Timbers

Managing Partner

t:
617-443-9292, ext 223
f:
617-443-0004
e:
ktimbers@sunsteinlaw.com
Harvard Law School
J.D.
University of Missouri
B.A. with honors, magna cum laude

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Awards

  • WTR1000 2021 Kerry Timbers
  • Sunstein Best Lawyers 2023 badge
  • Best Law Firms 2023
  • Super Lawyers 2022
  • MH AV Preeminent 2022

Education

  • Harvard J.D.
  • University of Missouri B.A. with honors, magna cum laude

Profile

Kerry Timbers has extensive experience trying complex patent litigations in a variety of industries including the life sciences, technology, and consumer oriented products. His trial background includes jury and non-jury cases, and arguments before the Court of Appeals for the Federal Circuit. His expertise includes participating in complex interference proceedings and inter partes reviews (IPRs) before the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office.

Kerry has been named a Best Lawyers, Super Lawyer, and a WTR100 Recommended Individual. Kerry is the Managing Partner of Sunstein LLP.

Experience

  • Kerry has handled and had significant involvement in numerous complex patent litigations covering a wide range of technologies, including, for example:
    • computer operating system architectures
    • land-line, cell-phone and VOIP telephony systems and devices
    • pharmaceuticals
    • medical diagnostic devices
    • medical devices used in surgery and treatment
    • electromechanical devices
    • x-ray inspection systems
    • consumer-oriented products, especially plastics products and plastics manufacturing processes
  • Recent and current representative cases include:
    • Ingenico Inc. v. IOENGINE, LLC, United States District Court of Delaware. Sunstein obtained a sweeping jury verdict win in a patent infringement lawsuit for Ingenico Inc., a global provider of point of sale payment terminals, software, and services. When non-practicing entity IOENGINE sued a key payments related customer alleging infringement of three patents, Sunstein initiated suit against IOENGINE, seeking declaratory judgment of noninfringement. Sunstein also filed multiple petitions for inter partes review (IPR), successfully invalidating over 150 of the patent claims in IOENGINE’s three asserted patents.

      The exhaustive discovery process included tens of thousands of documents, 20-plus depositions (including multiple depositions of third parties in Israel), and significant third-party discovery. Notably, Sunstein challenged the methodology by which IOENGINE’s damages expert calculated reasonable royalty damages, prompting the court to exclude the expert’s testimony. After four days of testimony, the jury found that all claims were either not infringed or were invalid.
    • Exergen Corporation v. Kaz USA, Inc., United States District Court for the District of Massachusetts. Sunstein obtained a verdict of $14.6 million after a two-week jury trial for infringement of Exergen’s patents for temporal artery thermometers. The jury found infringement and confirmed the validity of every one of the twelve asserted patent claims, and awarded both lost profits and a reasonable royalty.
    • ClassCo, Inc. v. Kyocera Int’l, Inc. et al., United States District Court for the District of Massachusetts (settled, representing defendants Pantech Company, Inc. and Pantech Wireless, Inc.. against patents for cell phone technology)
    • Boston Scientific Corporation v. Cook, Inc. et al., United States District Court for the District of Massachusetts (ongoing, representing defendant Taewoong Medical Co., Ltd., against patents for endoscopic stents and stent delivery systems)
    • Softspikes, LLC et al. v. MacNeill Engineering Company, Inc.
      Trisport, Ltd. et al. v. MacNeill Engineering Company, Inc. et al.
      United States District Court for the District of Delaware (settled after favorable Markman ruling; represented MacNeill Engineering in two suits involving 3 MacNeill patents and defending against 5 other patents, concerning golf cleats and receptacles)
  • Kerry also has extensive experience in all aspects of trademark and copyright protection and litigation, representing nationally recognized firms in courts and before the Patent and Trademark Office and Trademark Trial and Appeal Board.
  • Kerry also has significant involvement in shaping and implementing strategies for the protection, licensing, and enforcement of clients’ trademark portfolios.

Professional and Community Involvement

  • He is a member of the Boston Bar Association, and has been Co-Chair of the Boston Bar Association Intellectual Property Litigation Committee, and the Co-Chair of the Boston Bar Association International Intellectual Property Law Committee.
  • He is also a member of the Boston Patent Law Association, the American Intellectual Property Law Association and the International Trademark Association, and is a Master in the Boston IP American Inn of Court.
  • He is a Fellow of the Litigation Counsel of America.

Honors

  • Selected by World Trademark Review to the WTR1000 Recommended Individual list for enforcement and litigation, as well as for prosecution and strategy.
  • Selected by his peers for inclusion in The Best Lawyers in America® 2016–2023 editions in the field of Litigation – Intellectual Property.
  • Recognized by Thomson Reuters, Super Lawyers® from 2004–2022 in Massachusetts.
    • Selected to the "Top 100: Massachusetts Super Lawyers" list (2014-2022)
    • Selected to the "Top 100: New England Super Lawyers" list (2014-2018)
  • Recognized as AV Preeminent® by Martindale-Hubbell®.

Bar and Court Admissions

  • He is admitted to the Massachusetts bar, as well as the bars for the U.S. Courts of Appeals for the First, Fourth and Federal Circuits and the U.S. District Courts in Massachusetts, Connecticut, Colorado, the Eastern District of Wisconsin and the Eastern District of Texas.

Results

Ingenico Inc. v. IOENGINE, LLC

United States District Court of Delaware

Sunstein obtained a sweeping jury verdict win in a patent infringement lawsuit for Ingenico Inc., a global provider of point of sale payment terminals, software, and services. Sunstein also filed multiple petitions for inter partes review (IPR), successfully invalidating over 150 of the patent claims in IOENGINE’s three asserted patents.

The exhaustive discovery process included tens of thousands of documents, 20-plus depositions (including multiple depositions of third parties in Israel), and significant third-party discovery. Notably, Sunstein challenged the methodology by which IOENGINE’s damages expert calculated reasonable royalty damages, prompting the court to exclude the expert’s testimony. After four days of testimony, the jury found that all claims were either not infringed or were invalid.

Exergen Corporation vs. Kaz, USA, Inc.

United States District Court for the District of Massachusetts

Sunstein’s trial team won a jury verdict for our client Exergen, resulting in a $16 million judgment against Kaz, the maker of consumer products sold under the Vicks and Braun brands. Despite Kaz’s multiple challenges to the twelve patent claims asserted by Exergen, the jury upheld the validity of all of them, and found that the forehead thermometers sold by Kaz infringed those claims. Exergen is a Watertown, MA-based manufacturer and seller of thermometers for both the professional and consumer markets.

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$16 million judgment

FairWarning IP, LLC v. Iatric, Inc.; FairWarning IP, LLC v. CynergisTek, Inc.

We successfully defended clients Iatric and CynergisTek in the District Court and Federal Circuit against claims of patent infringement relating to software for detecting fraud and misuse of protected health information. Sunstein litigation group obtained judgments of patent invalidity under Section 101.

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