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Roy H. Wepner
Of Counsel
Kaplan, Breyer Schwarz
Roy H. Wepner is Of Counsel to Kaplan, Breyer Schwarz, LLP. He is an Adjunct Professor at Rutgers Law School in Newark, New Jersey. Roy attended Rensselaer Polytechnic Institute, where he received bachelor’s and master’s degrees in mechanical engineering. He received his Juris Doctor degree from the University Of Pennsylvania School Of Law.
Roy has practiced patent and trademark litigation for over four decades. Most of his career was spent at Lerner, David, Littenberg, Krumholz & Mentlik, where he retired after more than three decades as a partner.
Roy is the author of several law review articles; dozens of “In Practice” articles published in the New Jersey Law Journal; and online articles on patent and trademark litigation. He is a Certified Mediator for the U.S. District Court for the District of New Jersey, and has served as an expert witness in patent and trademark cases. Roy returned to Rutgers-Newark in 2019 to teach Patent Litigation, having previously taught Patent Law at Rutgers in the 1990s. Prior to that, he taught Trademark Law at Seton Hall Law School.
Recent Articles by Roy H. Wepner
Intellectual property litigation in the 21st century has brought to the fore systems for asserting infringement in which IP owners may be spared some of the huge expense of litigation by “routing” extra-judicial enforcement activities through a third party. They may do so by availing themselves of programs operated by middlemen such as Amazon, which can potentially cripple a competitor with the threat of removal from Amazon.com, while the patentee can claim to be immune from a declaratory judgment suit on the accused infringer’s home turf.
For decades, patent litigators have followed what can best be described as a forced march seeking to construe patent terms and thereafter litigate infringement and/or validity issues based on those constructions. We all know the drill: exchange contentions; flag contested claim terms; brief their constructions; apply the facts to the court’s constructions; and grind out infringement and validity evidence like so much sausage. Rarely do litigants ask courts to take a step back and construe an asserted claim “as a whole,” and rarely do courts do so if they have not been asked. But sometimes the lack of a holistic claim analysis can lead to a shock to the system at trial, at which time one narrowly construed term can steamroller another broader construed term. The result can be the loss of an infringement claim or an invalidity defense. Such losses may or may not be avoidable, but facing the music earlier can save everyone a great deal of time and resources.
