Blake R. Hartz

Indiana Super Lawyers, Rising Stars 2021 Includes Seven Woodard Attorneys

February 25, 2021

Woodard, Emhardt, Henry, Reeves & Wagner, LLP congratulates our attorneys who have been selected for inclusion in the 2021 Indiana Super Lawyers® and Rising Stars lists. The Super Lawyers list recognizes outstanding attorneys who are selected using a patented, multiphase process that considers factors such as peer recognition, professional achievement and high ethical standards. No more than 5% of the attorneys in Indiana receive this honor each year. Attorneys named to the Rising Stars list are selected using the same process, with the exception that only those who are 40 years old or younger or who have been in practice for 10 years or less are eligible. No more than 2.5% of the attorneys in the state are named to the Rising Stars list.

2021 Indiana Super Lawyers:

• Spiro Bereveskos – Intellectual Property Litigation
• Thomas Q. Henry – Intellectual Property
• Daniel J. Lueders – Intellectual Property Litigation
• Charles P. Schmal – Intellectual Property

2021 Indiana Rising Stars:
• Matthew M. Gardlik, Ph.D. – Intellectual Property Litigation
• Blake R. Hartz – Intellectual Property Litigation
• Michael M. Morris – Intellectual Property


Don’t let intellectual property be an after-pandemic thought

December 10, 2020

Whether next month, next year, or even beyond, at some point, the COVID-19 pandemic will begin to end. The world may look and feel a bit different, but the intangible intellectual property system will still be here, and we can take steps now to better position you (or your clients) for what comes next.

File now to protect new business

Before we look too far ahead, it is important to take inventory of what already happened. The pandemic forced widespread changes in a matter of weeks to how businesses deliver goods and services. Did your intellectual property protection strategy adapt as quickly? (I didn’t think so.) The obvious example is virtual services — things like telemedicine, educational videoconferences, and livestreamed entertainment. But there is also an explosion in delivery of physical goods and alternate purchasing methods. Do your trademark registrations cover how you are doing business in this new world? (I didn’t think so.) If you developed new technology to deliver your services, maybe you need to look into patent protection as well. You can abandon cases later. You can’t get retroactive filing dates.

Or maybe you now sell (or give away) masks? Did you already have trademark protection for masks last January? (I didn’t think so.) At the beginning of the year, the USPTO would have issued you a trademark registration on “protection masks” in International Class 9. Now, faced with a flood of “mask” applications, the USPTO requires applicants to specify things like “protective face masks for the prevention of accident or injury” in Class 9 (safety equipment), “sanitary masks for protection against viral infection” in Class 10 (medical devices), or “fashion masks” or “knit face masks being headwear” in Class 25 (clothing). The list of acceptable “mask” descriptions has been updated five times since June. Thanks, COVID. Masks are a new accessory that will outlive the pandemic in some capacity. They are a new promotional item. To quote my favorite movie, “It’s just they’re terribly comfortable; I think everyone will be wearing them in the future.” (“The Princess Bride,” 1987.)

Reevaluate enforcement and usage decisions

You are not the only one to adapt in the last several months. The virtual, streaming world presents an array of potentially confusing trademark uses, public performances and copying of protected works, and distributed infringement problems. While these online infringement opportunities existed in the before times, the extent of their use and adoption may warrant reevaluating whether to take action to enforce your rights. And search engines, social media, and digital archiving can make it easier to uncover these activities.

On the other hand, those same technologies make it easier for you to be found. In the rush to adapt this spring, intellectual property clearance likely got overlooked, and your operations may not line up exactly with your pre-pandemic practices. Some of your business model changes will still be here after the pandemic (as will the Internet’s memory), so this is a great time to check that your activities are (still) permissible.

Update (or create) IP systems to look forward

If your business has an office, it probably looks a lot less busy these days. But the work is still somewhere, buried in brains in employees’ basements. That brilliant inventor with the terrible communication skills — you can’t even corner him in the hallway to extract a progress report! There are reports that many people enjoy working remotely (my hand is raised) and that businesses are looking to shed expensive office space. To make this work long term, you will of course need secure technology infrastructure. But from an IP perspective, you need systems.

One of those systems is a way to get your employees to actually use the technology appropriately. You will want policies to govern use of company equipment and data and employees’ personal devices, and communications and training to ensure compliance with said policies. If the VPN or other remote systems are too slow, users will be tempted to do things on local equipment and valuable competitive information may be left up to the vagaries of user’s personal habits on operating system updates, home antivirus software, and wireless router configurations. Or users turn to cloud services without authorization and with untold number of additional personal devices synchronized and backed-up in third-party server facilities. So a key first step is driving use of information to your controlled technology environment.

Assuming you have control of your information, systems can help turn it into assets. Creative insights are often developed in informal interactions, and a lone employee at his kitchen sink may not be a good substitute for the office water cooler here. So you need to make a deliberate effort to mine the workforce for intellectual property — whether it be sales leads, marketing angles, or technological advances — in a way that works for your organization. That may be something like a recurring team meeting to review IP or assigning this task to a coordinator who connects with sources on an ad hoc basis. Proactive steps will go a long way to protecting your ideas, but you will need to do this in moderation.

Generating “intellectual” property requires good ideas, and an endless parade of virtual meetings is even more draining than a sterile conference room at the office.

Of course, an IP attorney can help you get started on all these processes.•

As published in The Indiana Lawyer.


Blake R. Hartz Selected to the Indiana State Bar Association’s Leadership Development Academy Class 9

December 10, 2019

Woodard Emhardt is pleased to announce Blake R. Hartz’s membership in the Indiana State Bar Association’s Leadership Development Academy Class 9.  Mr. Hartz is one of 25 attorneys selected to participate in the statewide leadership program established to empower and develop lawyers to be informed, committed and involved so that they may fill significant leadership roles in local and state bar associations.

Mr. Hartz focuses his practice on intellectual property litigation in both federal court and administrative proceedings at the USPTO, having represented clients in patent, trademark, and trade secret cases in courts across the country, various trademark opposition/cancellation actions, and more than a dozen patent Inter Partes Review proceedings. He has worked on all stages of disputes, from pre-filing investigations through appeal, and also maintains active patent and trademark prosecution dockets, including serving as U.S. counsel for overseas companies and attorneys.

The Firm congratulates Mr. Hartz and all members of LDA Class 9.

About the Indiana State Bar Association:

Founded in 1896, the Indiana State Bar Association is the single largest legal organization in the state. The ISBA serves and advocates on behalf of its members, their clients and the public interest as the independent voice of the legal profession. The ISBA’s office is located in downtown Indianapolis. For more information about the Indiana State Bar Association, visit www.inbar.org.


Attorneys Celebrate May in Indy

June 3, 2019

On Thursday, May 30, 2019, Firm attorneys celebrate May in Indy racing at Speedway Indoor Karting.


Firm attorneys show their support of the USO of Indiana

May 21, 2019

Firm attorneys, Andrew Nevill, Blake Hartz, Chuck Reeves and Bill McKenna, participate in the Third Annual USO of Indiana Golf Outing on May 17th, 2019 at The Legends Golf Club in Franklin, Indiana. The annual event helps the USO of Indiana provide programs at no cost to military service men and women.

 


Firm Team Crowned IBF Trivia Night Champions

April 29, 2019

Congratulations to the team from Woodard, Emhardt, Henry, Reeves & Wagner who were crowned the Indianapolis Bar Foundation (IBF) Trivia Night Champions and took home the coveted IBF Trivia Trophy! The money raised at this annual IBF Trivia Night event supports the Foundation’s crucial role in helping to solve the legal-related problems in the Indianapolis community.

The victors, Christopher Brown, Chuck Schmal, Josh Astin, Andrew Nevill, Blake Hartz, Mark Burroughs, and Bob Jalaie, are pictured here with Trivia emcee, Adam Christensen (bottom row, center).


Woodard, Emhardt, Henry, Reeves & Wagner, LLP Announces Name Change and Promotes Three to Partnership

January 7, 2019

The Firm is pleased to announce that Charles Reeves and Vincent Wagner have been recognized as named partners of the firm, which has changed its name to Woodard, Emhardt, Henry, Reeves & Wagner, LLP.  Woodard Emhardt also congratulates Matthew Gardlik, Ph.D., Joshua Astin and Blake Hartz who have been elected to the firm’s partnership and is pleased to share that John McNett will continue with the firm as Senior Counsel.

The firm name change recognizes Mr. Reeves’ and Mr. Wagner’s significant contributions to the firm and outstanding service and results they have achieved for our clients over the years. Their leadership will help ensure the continued success of the firm which celebrates its 140thAnniversary this year.

Mr. Reeves joined the firm in 1976 and has represented a broad range of clients from individuals and start-up businesses to national and international corporations. His experience includes litigation, domestic and international prosecution, strategic planning and managing IP portfolios, and evaluating validity, coverage and right-to-use issues in connection with opinion, transactional and other business-related work.

Mr. Wagner joined the firm in 1978 and has represented clients in a wide range of matters, including patent, trademark, copyright, and trade secret litigation, patent interference and trademark oppositions, foreign and domestic patent and trademark prosecution, counseling and opinions, mediations and settlement negotiations, and licensing.

Dr. Gardlik is extensively involved in all aspects of patent prosecution and litigation.  He has successfully prepared and prosecuted inventions in a wide variety of technologies including chemical, pharmaceutical, medical device, and diagnostic technologies. His litigation experience includes the successful defense of a retaliatory trade secret misappropriation claim and he continues to represent the plaintiff in the earlier-filed patent infringement suit including in the successful defense of thirteen associated Inter Partes Review proceedings at the USPTO.

Mr. Astin specializes in U.S. and foreign patent preparation and prosecution for a variety of technologies including: tissue engineering, stem cells, implantable medical devices, and genetic sequence listings. His patent experience includes patentability analysis, freedom to operate analysis, as well as licensing and agreement work.

Mr. Hartz focuses his practice on intellectual property litigation in both federal court and administrative proceedings at the USPTO, having represented clients in patent, trademark, and trade secret cases in courts across the country, various trademark opposition/cancellation actions, and more than a dozen patent Inter Partes Review proceedings. He has worked on all stages of disputes, from pre-filing investigations through appeal, and also maintains active patent and trademark prosecution dockets, including serving as U.S. counsel for overseas companies and attorneys.

The firm congratulates our new named partners and our newest partners and looks forward to building on Woodard Emhardt’s 140 years of protecting and defending client’s creative and intellectual assets.


IPR Is Here to Stay, With Even Greater Stakes

April 25, 2018

On April 24, the Supreme Court issued two important decisions on the availability and scope of post-grant Inter Partes Review (IPR) by the U.S. Patent and Trademark Office. The IPR process allows the PTO to review and potentially cancel claims of a previously-granted patent based on prior art.

In Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, the Court determined that the IPR process is constitutional. In earlier proceedings, a patent’s claims had been revoked in an IPR proceeding. The patentee challenged the IPR process as violating Article III or the Seventh Amendment right to a jury trial by transferring an adjudication of private property rights to an administrative tribunal. The Court held that IPR violates neither provision, analogizing the grant of a patent to a government-granted right to build bridges or railways that can be revisited in an administrative proceeding.

In SAS Institute Inc. v. Iancu, the Court interpreted Section 318 of the Patent Act to determine that, if an IPR is to be instituted, it has to be instituted to decide the patentability of all of the claims challenged in the IPR petition. In the PTO proceedings, the IPR was only instituted on a subset of the claims that were originally challenged in the opening IPR petition. The Court held that a PTO regulation authorizing partial institution was inconsistent with the plain meaning of the statutory text.

The decision in SAS Institute is an important change in IPR practice. Previously, the PTO was frequently picking-and-choosing claims and theories from the initial petition on which to proceed to a full administrative trial. But the PTO still has substantial discretion in instituting or denying the proceedings on the whole, subject to review under the Administrative Procedures Act. Thus, while crafting the initial petition (as a petitioner) or attacking it (as a patent owner) was always important, this new requirement that the challenged claims are addressed in an all-or-nothing decision makes the preliminary, pre-institution stages of an IPR even more critical.


Review of Recent IP Supreme Court Cases

August 15, 2016

The Supreme Court recently decided three different cases related to intellectual property issues. The Court reviewed the process of instituting an inter partes review (IPR) in In re Cuozzo Speed Techs., finding that a decision of whether to institute an IPR is nonappealable. Additionally, it was held that it is reasonable for the USPTO to use a broadest reasonable interpretation standard for claim construction in IPRs is reasonable.

In Halo v. Pulse; Stryker v. Zimmer, the Supreme Court reviewed the Federal Circuit’s Seagate test for enhanced damages in patent infringement cases. It was found that the Seagate test is too rigid and not consistent with Section 284. The Supreme Court leaves to the discretion of the court the right to enhance damages for egregious behavior.

The final intellectual property case heard by the Supreme Court, Kirtsaeng v. John Wiley & Sons, reviewed the standard for awarding attorney’s fees to a defendant in a copyright case. The Court held that a district court may give substantial weight to the objective reasonableness of the position of the losing party, yet should also account for other relevant circumstances for awarding attorney’s fees.

The Supreme Court has already granted petitions to hear several more intellectual property cases in the upcoming October term. Issues to be decided include calculation of damages in design patent infringement cases, infringement based on supply of a single component of a multi-component invention, protectability of features of a useful article under the Copyright Act, and the application of laches for claims brought within a statutory limitations period. The full presentation may be viewed by visiting:  Review of Recent IP Supreme Court Cases from Woodard, Emhardt, Moriarty, McNett and Henry LLP


New Rules May Alter Patent Litigation

March 31, 2016

On December 1, 2015, new amendment to the Federal Rules of Civil Procedure went into effect. For intellectual property practice, the most significant change may be the elimination of the “Forms” section of the rules and Rule 84. Previously, pleadings similar to Form 18 for direct patent infringement were sufficient to satisfy the pleading standards in federal court. Now, based on previous decisions of the Federal Circuit regarding indirect infringement, commentators suggest that patent complaints will need to provide more specific factual information in order to survive early motion practice. The Federal Circuit has not yet addressed this question, but early district court decisions appear to be applying the amendments inconsistently. Some decisions have ruled that more specific fact-based allegations are required, while others have noted that the Advisory Committee comments state that the amendments were not intended to alter existing pleading standards and therefore continue to use Form 18 as the benchmark.

Although an initial complaint is one of the first steps in a patent lawsuit, it has significant procedural and substantive consequences depending on how it is drafted. Pending bills in the current Congress, the Innovation Act (H.R. 9) and the PATENT Act (S. 1137), would change patent infringement pleading requirements by amending the patent statutes in Title 35 of the United States Code.

Additional changes to the Rules relate to the scope of discovery (Rule 26), timing and objections relating to requests for production or inspection (Rule 34), and sanctions relating to electronically-stored information or “ESI” (Rule 37). To view the presentation, visit: Federal Rules Update from Woodard, Emhardt, Moriarty, McNett and Henry LLP

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