Randolph C. Foster

Randy Foster represents clients in resolving complex disputes with a particular emphasis on intellectual property, antitrust and trade regulation, unfair competition and false advertising, franchise regulation, and the distribution of products and services. He has handled business and dispute matters for clients across a broad range of industries, including electronics, software, forest products, biotechnology, health care, petroleum products, advertising and branding, telecommunications, consumer products, and motor vehicles. He is a frequent lecturer and author on antitrust and the protection of intellectual property. Randy has served on the firm’s Executive Committee (twice), as a Practice Group Leader for the firm’s Technology and Intellectual Property Group, and as the lead partner for client relations (twice).

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Education

Georgetown University Law Center, J.D., 1978; Member, The Tax Lawyer, 1977-1978

University of Puget Sound, B.A., 1974, with honors

Admissions

Oregon

Idaho

Washington

United States District Court for the Districts of Idaho, Oregon, Eastern Washington and Western Washington

United States Court of Appeals for the Eighth and Ninth Circuits

Antitrust 

• Representation of mining consumables manufacturer in antitrust claims of $1.9 billion brought a terminated license in an international arbitration proceeding. Final award in favor of our client dismissing the former licensee’s antitrust and other claims, and awarding nearly $8 million in legal and expert fees to our client. 
• Representation of health insurance company in price fixing and group boycott case brought by insurance agent and association of local governments. Summary judgment secured in favor of our client and its co-defendant. Plaintiffs’ appeal to Ninth Circuit voluntarily withdrawn.
• Representation of companies in a variety of industries (e.g., healthcare, electronics, transportation, consumer products, software) in connection with civil antitrust investigations by various state attorneys general. 
• Representation of seafood processor in pending cases under the Clayton and Sherman Acts alleging that the processor is monopolizing or attempting to monopolize the seafood processing market, or is a monopsonist or is attempting to acquire monopsony power in connection with the purchase of seafood from fishermen. 
• Representation of petroleum products company against claims of price discrimination arising out of the use of a zone pricing system. 
• Advised clients concerning antitrust compliance in connection with acquisitions, distribution and dealer agreements, technology licensing and development, joint ventures, and pricing compliance under the Robinson Patman and state counterparts, including below-cost statutes. 

Patent Disputes 

• Regularly represent clients in connection with licensing demands and litigation by non-practicing entities (NPE). 
• Representation of printer manufacturer in enforcing its solid ink patent portfolio. 
• Representation of test and measurement company in enforcing patents covering its oscilloscope product line. 
• Representation of athletic shoe manufacturer in connection with the enforcement of shoe sole design patents. 
• Representation of forest products company in defending against patent claims directed to its cooling tower water treatment systems. 
• Representation of professional audio equipment manufacture in connection with various utility and design patent cases asserted by competitors. 

Trade Secrets 

• Representation of test and measurement company in action against a key engineer who was recruited to work for a competitor overseas to develop technology in the same technical area and for the same types of products on which he had been working for fifteen years for the plaintiff. Successfully negotiated constraints on his new employment, including limitations on the technologies in which he could be involved for the new employer. 
• Representation of fire retardant manufacturer in misappropriation action against competitor who secretly secured client’s proprietary formula from the party that originally sold the technology to the client. 
• Representation of many former employers in actions against department employees for misappropriation of trade secrets including customer information, manufacturing technologies, deals in progress, etc. 

Trademarks and Trade Dress

• Advise clients concerning the management and enforcement of their trademark portfolios. 
• Representation of professional audio equipment manufacturer in trade dress infringement claim directed to the client’s entire line of mixer products. 
• Representation of a guitar manufacturer in connection with a trademark claim alleging infringement of registered guitar headstock designs. 
• Representation of specialty chocolate manufacturer in dispute claiming trademark license amounted to a franchise. 
• Representation of sporting optics manufacture in enforcing a distinctive decorative feature found on most of its products. 
• Representation of a leading athletic apparel manufacturer in federal litigation with competitor over rights to market licensed NFL gear following our client securing trademark and related licenses from the NFL and player’s association. Obtained TRO and preliminary injunction against the competitor’s continued distribution of the disputed gear and the case subsequently settled. 

Copyrights and Licensing

• Representation of clients in connection with the preparation and negotiation of agreements related to ownership or use of copyrightable works, including assignment of invention agreements, independent contractor agreements, industrial design, and software development agreements. 
• Representation of clients in connection with software compliance audits by software licensors. 
• Representation of software company against claims by supplier that the company had exceeded the license granted in a software development kit and thereby committed copyright infringement. AAA Arbitration panel ruled for our client, and awarded it all of its attorneys’ fees. 
• Representation of co-author of a law related book in a dispute with the publisher and his fellow author. The publisher and the other author failed to indicate the client’s status as the co-author of the book. Case settled with agreement to withdraw current supplies from the market and reprint with proper attribution. 
• Representation of developer of software for mobile devices in an action against a leading overseas mobile phone manufacturer and the manufacturer’s chip set supplier for copyright infringement. The developer’s software had been incorporated into in millions of chip sets and phones without compensation. Case settled shortly before hearing on developer’s preliminary injunction motion seeking to restrain distribution of the manufacturer’s infringing phones in the U.S. market. 

 Franchise and Dealer Relations 

• Representation of leading heavy duty truck manufacturer in an AAA arbitration commenced by a dealer terminated for poor sales performance. The dealer’s claimed wrongful termination under the provisions of the state motor vehicle franchise law. The arbitrator found in favor of our client. 
• Representation of convenience store franchisor in various disputes with franchisees, including wrongful termination litigation. 
• Representation of petroleum products franchisor in various disputes arising under federal and state laws governing relationships with gasoline dealers and distributors. 
• Representation of numerous clients in litigation under state franchise registration and franchise or dealer relationship statutes. 
• Advised large multi-point national motor vehicle dealer on its franchise arrangements with various motor vehicle manufacturers. 
• Advised electric motor vehicle distributor regarding state motor vehicle franchise laws governing direct sales. 

International Arbitration 

• Representation of Canadian fire retardant treated wood roofing manufacturer Global Building Product Supply in an ICDR international arbitration against Chemco, Inc. Following a one-week evidentiary hearing, Global was granted complete declaratory and injunctive relief, and was awarded $2.1 million in damages. The Final Award was later confirmed by the U.S. District Court for the Western District of Washington. 
• Representation of mining consumables manufacturer in an ICC international arbitration against its Australian licensee. The licensee sought $1.9 billion in damages but was awarded nothing in the Final Award. Our client was granted its requested declaratory relief and nearly $8 million in attorneys’ and experts’ fees. The award was confirmed by the U.S. District Court for the District of Oregon and was also subject to enforcement proceedings in Australia. 
• Representation of test and measurement company in an ICC international arbitration against an Italian manufacturer in a dispute under the parties’ supply and licensing agreements. The arbitration hearing was held in Geneva, Switzerland. Our client was awarded approximately $2 million in damages. The arbitration was confirmed by Italian courts. 
• Representation of mobile software company Extended Systems of Idaho, Inc. (acquired by Sybase) against AppForge, Inc., in the AAA arbitration of a software licensing dispute. The Final Award found for Extended Systems, dismissing all of AppForge’s multimillion-dollar claims and awarding Extended Systems $700,000 in attorneys’ fees. The award was confirmed by the United States District Court for the Northern District of Georgia.

Insights & Presentations

• “State, Federal, or Both? Choosing Between Different Laws and Venues for Trade Secret Misappropriation Claims,” presented at American Intellectual Property Law Association Spring Meeting, May 18, 2017
• “Trade Secrets Challenges for Patent Prosecutors and Litigators,” Randolph C. Foster and Elliott K. Williams, 2016 Electronic and Computer Law Summit, Electronic and Computer Patent Law Committee of the American Intellectual Property Association (paper presented and published June 14, 2016)
• “Antitrust Law Overview,” presented to NAWLA Executive Management Institute, Oregon State University, September 2016

Publications

Press Releases

• Named by Best Lawyers^® as Litigation—Antitrust and Litigation—Patent “Lawyer of the Year,” Portland
• Included in The Best Lawyers in America^® (Commercial Litigation, Litigation—Antitrust, Litigation—Intellectual Property, Litigation—Patent)
• Selected as a leading patent litigator in the inaugural issue of Intellectual Asset Management’s IAM^® Patent Litigation 250—The World’s Leading Patent Litigation Practitioners
• Selected as one of the IAM^® 1000 World’s leading Patent Professionals publication since its inaugural issue
• Selected as one of “America’s Leading Lawyers for Business” (Oregon) by Chambers USA (Intellectual Property; Litigation: General Commercial)
• Listed in Oregon Super Lawyers^® (Intellectual Property Litigation, Antitrust Litigation, Franchise/Dealership)
• Named a “Patent Star—Oregon” and “Trademark Star—Oregon” in Managing Intellectual Property’s IP Stars

Professional

• Patent, Trademark and Copyright, Antitrust, Litigation, and Science and Technology Sections, American Bar Association, Member
• Intellectual Property, Litigation and Antitrust Sections, Washington, Oregon, and Idaho State Bars, Member

Civic

• Portland Center Stage, Board Member, 2010–2016
• University of Puget Sound, Trustee, 2005–present
• Oregon Graduate Institute, Trustee, 2002–2004
• The Catlin Gabel School, Trustee, 1998–2004
• Classroom Law Project, Board Member, 2005–2007
• High school mock trial teams, Coach, 2002–2004