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OVERVIEW

Todd G. Vare
Partner

Indianapolis

11 South Meridian Street
Indianapolis, IN 46204-3535

P 317-231-7735

F 317-231-7433

OVERVIEW

Todd G. Vare
Partner

Indianapolis

11 South Meridian Street
Indianapolis, IN 46204-3535

P 317-231-7735

F 317-231-7433

Todd Vare is a trial and appellate advocate focused on protecting his client’s intellectual property and counseling on their data security and privacy needs. Todd is client-focused, staunchly loyal to those he serves, and passionate about the law and innovation. He is at his best where advocacy, business and competition intersect.

OVERVIEW

Todd G. Vare Partner

Indianapolis

11 South Meridian Street
Indianapolis, IN 46204-3535

P : 317-231-7735

Todd Vare is a trial and appellate advocate focused on protecting his client’s intellectual property and counseling on their data security and privacy needs. Todd is client-focused, staunchly loyal to those he serves, and passionate about the law and innovation. He is at his best where advocacy, business and competition intersect.

Todd advocates for his clients in complex, high-stakes litigation involving patents, trademarks, copyrights, trade secrets, technology licensing, software development, data protection and privacy matters. A significant focus of Todd’s national trial practice involves patent litigation. Here, he has protected or enforced his clients’ intellectual property covering a wide variety of technologies, including internet-based systems and processes, online retail systems, telecommunications, integrated circuits, software, cellular antenna systems, pharmaceuticals, medical devices, herbicides and pesticides, dielectric fluids and mechanical devices.

Todd has led teams in jury trials and argued numerous Markman and summary judgment hearings. He also has litigated business disputes involving trademarks, copyrights and trade secrets. His trial work has frequently led to appellate work, including arguing patent cases before the U.S. Court of Appeals for the Federal Circuit, a copyright case before the U.S. Court of Appeals for the Eleventh Circuit, and a publicity rights case before the Indiana Court of Appeals. Todd also represents clients before the Patent Trial and Appeals Board in inter partes review matters.

Apart from his litigation work — indeed, with the goal to avoid litigation — Todd also counsels clients on cybersecurity and data protection, privacy, computer and software issues, e-commerce processes, and other business technology matters. As co-chair of the firm’s Data Security and Privacy practice, Todd works with clients to evaluate their data security needs, develop comprehensive data security plans, and manage responses to data breaches or other cybersecurity incidents.

Todd’s passion for trial and appellate advocacy has inspired him to represent many clients, pro bono, in prisoner civil rights cases, asylum petitions and sentencing appeals. In October 2007, Todd’s passion was rewarded with an opportunity to argue before the U.S. Supreme Court in U.S. v. Santos, which resulted in a victory for his client in a criminal case involving the scope of the federal money laundering statute.

Professional and Community Involvement

Member, International Association of Privacy Professionals

Board of Editors, Pratt’s Privacy and Cybersecurity Law Report, published by LexisNexis

Board member, Pearl IRB

Honors

The Best Lawyers in America, 2012-2019; Lawyer of the Year, 2017

Indiana Super Lawyers, 2014-2016

EXPERIENCE
  • Affirmed trial court's finding of non-infringement of defendant's patent.
  • Barnes & Thornburg attorneys represented National Laser Technology (NLT), a seller of used dental lasers and dental laser support services, in a nationwide antitrust suit against Biolase, the country's largest manufacturer of dental lasers. NLT alleged Biolase had monopoly power in the national market for the sale of hard tissue dental lasers and used that power to coerce dentists to purchase products from it rather than from NLT in violation of Sections 1 and 2 of the Sherman Act, the Lanham Act and the California Unfair Competition Law. Obtained an early favorable settlement for client. National Laser Technology, Inc. v. Biolase Technology, Inc., Case No. 1:08-cv-1123 (S.D. Ind. 2009).
  • Barnes & Thornburg represented pharmaceutical company in an action to have two of its employees recognized as investors on a patent. On appeal, the court partially affirmed entry of judgment in our client's favor.
  • In two Northern District of Illinois suits relating to remote down tilt antenna patents and technology, we assisted our client Andrew Corp. in its effort to efficiently translate their remote down tilt patent portfolio into an ongoing licensing stream.
  • Mr. Vare was lead counsel for Creative Integrated Systems, a small integrated circuit design company in Santa Ana, in a lawsuit alleging infringement of Creative’s patent to Very Large Scale Integrated Read-Only-Memory chips. The accused products were the ROM chips made by Macronix and used by Nintendo in the Nintendo Wii and DS games. Following four years of litigation – including a successful appeal to the Federal Circuit resulting in a reversal of the district court’s claim construction – the case was tried to a jury in March 2014. Following a verdict, a confidential agreement was reached resolving the case.
  • Mr. Vare was lead counsel for Finish Line in this consolidated patent troll case involving patent claims to e-commerce methods and systems. He filed and argued a motion for judgment on the pleadings that the patent was invalid under 35 U.S.C. § 101 as being directed to abstract ideas not eligible for patenting. On Jan. 21, 2014, Judge Davis granted the motion and entered judgment of invalidity. This ruling is currently on appeal to the Federal Circuit.
  • Mr. Vare was lead counsel for Google in two separate cases alleging that Google Voice infringed several patents owned by One Number. The district court conducted a Markman hearing, construed the claims, and granted summary judgment of noninfringement for Google.
  • Represented client Efrain Santos on a pro bono basis before the U.S. Supreme Court (SCOTUS) relating to Santos' convictions for illegal gambling and money laundering. In a split decision, SCOTUS, in an opinion authored by Justice Scalia, held that money laundering requires proof of the use of "profits," not merely "gross receipts." This case involved the federal prosecution of an illegal lottery business operated by Santos in northwest Indiana from the 1970s to 1994. After being convicted for illegal gambling and money laundering, Santos was sentenced to 17 and a half years in prison. He was later released after his money laundering conviction was overturned by the 7th Circuit Court of Appeals in Chicago based on interpreting the term "proceeds" as "profits." Because the 7th Circuit's interpretation conflicted with that of several other federal appellate courts, the government sought review by SCOTUS, and an oral argument was held on Oct. 3, 2007. In his opinion, Justice Scalia wrote that the term "proceeds" is ambiguous and, therefore, the more narrow meaning as "profits" must be adopted. Because the money laundering conviction of Santos was based on merely paying gambling winners and "collectors" who collected bets – transactions paid out of gross receipts, not profits – Santos and his co-defendant (Diaz, a collector) did not engage in transactions involving profits.
  • Represented Dorel in a patent infringement case in which the Federal Circuit remanded for further proceedings.

    Dorel Juvenile Group, Inc. ("Dorel") sued Graco Children's Products, Inc., ("Graco") for patent infringement, seeking a jury trial. Dorel is the exclusive licensee of U.S. Patent No. 6,550,862 ("the '862 patent") and continuing U.S. Patent No. 6,612,649 ("the '649 patent"), both directed to a child's car seat assembly having a retractable cup holder. Graco conceded that its accused car seat embodies all of the elements of the asserted claims, except for certain aspects concerning the seat and base assembly, i.e., a base removably attached to a seat.

    On cross-motions for summary judgment, the United States District Court for the Southern District of Indiana ruled for Graco and against Dorel, holding that under the district court's interpretation of the pertinent claim terms, Graco's car seat does not infringe the '862 and '649 patents. See Dorel Juvenile Group, Inc. v. Graco Children's Prods., Inc., No. 03-1273 (S.D. Ind. Sept. 9, 2004) ("Summary Judgment"). Dorel timely appealed the final judgment of the district court. Because there exists a question of fact as to whether Graco's car seat infringes the patents, the United States Court of Appeals for the Federal Circuit vacated the district court's summary judgment and remanded the case for further proceedings. The case was settled shortly thereafter.
  • Represented Jeffrey Scalf, the great-nephew of John Dillinger regarding his ownership of the rights of publicity associated with Dillinger, against a restaurant for improperly utilizing the name, image, and likeness of Dillinger for a commercial purpose. The Indiana Court of Appeals affirmed the trial court's denial of the restaurant's motion to transfer venue from the county where Mr. Scalf lived to the county where the restaurant was located. The Court held that for preferred venue purposes, the term "chattels" is not limited to tangible chattels, but includes intangible chattels, such as a right of publicity. Therefore, the right of publicity associated with Dillinger was located in the owner's domicile, such that owner's domicile was a preferred venue.
  • Represented the defendant, a Canadian company accused of infringing an Indiana-based company's two patents to systems and methods for semi-trailer tarpaulins. After a combined Markman and summary judgment hearing (oral argument by Vare), the trial court ruled that our client did not infringe either of the patents and that all but one of the claims of one patent were invalid under the on-sale bar of 35 U.S.C. Sec. 102(b). The trial court's ruling was not appealed.
  • Todd Vare represented National Programming Service LLC (NPS) before the 11th Circuit Court of Appeals in a case in which the plaintiff alleged the defendants were in violation of the nationwide, permanent injunction mandated by the Satellite Home Viewer Act (SHVA) of 1988. Jeff Barron and Kendall Millard assisted in the strategy development and briefing.

    The case (CBS v. EchoStar) dates back to the late 1990s when EchoStar began providing satellite television programming to subscribers under the DISH NETWORK brand. Claiming copyright infringement, various television networks (including CBS, ABC, Fox and NBC) and their network affiliates sued EchoStar in Florida federal court in 1998, claiming the company was improperly providing distant network programming to served - as opposed to unserved - households. Eventually, an injunction was entered in 2006 that prevented EchoStar from providing distant network programming under the SHVA's statutory license.

    NPS approached EchoStar in 2006 to inquire about leasing its satellite equipment. A deal was reached, which enabled NPS to use EchoStar's satellite transponder to retransmit distant network programming to unserved households that signed up with NPS. The networks then accused NPS of violating the previously entered injunction against EchoStar. In a unanimous opinion issued on July 7, the 11th Circuit Court of Appeals upheld Indianapolis-based NPS's right to continue leasing satellite equipment from EchoStar to retransmit the signal under the SHVA. CBS Broadcasting Inc. v. Echostar Commc'ns, No. 07-10020 (11th Cir., filed Jan 3, 2007).
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