Marc N. Henschke is a patent trial attorney with Foley & Lardner LLP and a member of the firm’s IP Litigation practice and its Emerging Technologies and Medical Devices Industry Teams. Mr. Henschke serves as national chairman of the firm’s Contingent Fee Committee with approval and oversight responsibilities for all IP and commercial litigation contingent fee matters.
Having first-chair experience in jury trials and Markman claim construction hearings, Mr. Henschke has litigated patent infringement cases relating to a wide variety of products and technologies, including network switches and routers; computer hardware and software; medical lasers; high-speed data cables; e-commerce applications; business methods; surgical screws; LCD displays; LANs and VLANs; laptop computers; cell phones; digital still cameras; video cameras; PDA devices; and radar detectors.
Mr. Henschke has also litigated numerous other types of commercial litigation cases in a variety of jurisdictions, including antitrust violations; trademark and copyright infringement; business torts; commercial contracts; trade secrets; non-competes; defamation; insurance coverage; technology licensing; professional malpractice; personal injury; and securities fraud class actions.
In the federal securities fraud arena, Mr. Henschke recently served as lead trial counsel in defending a former software company CFO in a high profile SEC civil enforcement action "test case" involving premature revenue recognition allegations under GAAP.
Mr. Henschke received his J.D. from Harvard Law School (cum laude, 1991) and received his B.A. from Yale University (summa cum laude, 1988).
Mr. Henschke is admitted to practice in California and Massachusetts. He is also admitted to appear before the U.S. Supreme Court; the U.S. Court of Appeals for the Federal, First, Ninth, and Eleventh Circuits; the U.S. District Court, District of Massachusetts; and the U.S. District Court, Central District of California.
Mr. Henschke belongs to the Boston Bar Association for which he formerly served as co-chair of its IP Litigation Committee. He also is a member of the Boston Patent Law Association, the Federal Circuit Bar Association, the American Intellectual Property Law Association, and the American Bar Association.
Mr. Henschke has been recognized multiple times as a Massachusetts Super Lawyer, an honor received by only 5% of Massachusetts attorneys.
Representative Patent Infringement Cases:
- Flashpoint Technology Digital Camera Cases (D. Del.). Represents one of the world’s largest retailers in multiple consolidated pending cases involving over 30 defendants and 10 patents directed to digital camera technologies.
- Belden v. Superior Essex (D. Del.). Secured a summary judgment of infringement, and a jury trial verdict of validity, for several Belden patents directed to high-speed data communications cables technologies.
- Candela Corp. v. Palomar Medical Technologies, Inc. (E.D. Tex.). Member of the defense team that secured a jury verdict of non-infringement and invalidity on behalf of client Palomar as to all asserted patent claims directed to aesthetic medical laser products.
- Enterasys Networks, Inc. v. Foundry Networks, Inc., et al (D. Mass.). Represents Enterasys in pending litigation asserting six patents that implicate fundamental network switch and router technologies, including VLANs, LANs, multiprotocol routing, and IGMP snooping.
- Honeywell Inc. v. Apple Computer, et al. (D. Del). Has represented Honeywell in pending litigation asserting a liquid crystal display ("LCD") related patent against a wide variety of consumer electronics products.
- DE Technologies, Inc. v. Dell Computer Corp. (W.D. Vir.). Handled all claim construction issues on behalf of client DE Tech, including drafting all claim construction briefing and first-chairing a two-day Markman hearing, in a patent litigation involving a business methods patent directed to Internet e-commerce software. Resulted in a confidential settlement.
- Tulip Computers Int’l v. Dell Computer Corp. (D. Del). Member of trial team that secured a $49.5 million settlement on behalf of client Tulip after one week of jury trial against Dell on a patent involving computer motherboard technology.
- Cincinnati Microwave, Inc. v. Whistler Corp. and Acterna Corp. (S.D. Ohio). Briefed and argued a summary judgment motion that resulted in dismissal of a $220 million patent infringement claim against clients Whistler and Acterna. This case was the lead litigation result highlighted in Hale and Dorr LLP's Annual Report for 2001.
- Cozza v. McAfee, Inc. (D. Mass.). Represented the named inventor on antiviral scanning software patents in a case involving licensing and trade secret disputes with industry market leader. Resulted in a confidential settlement on eve of trial.
- Acromed Corp. v. Medtronic, Inc. (D. Mass.). Drafted summary judgment motions resulting in a non-infringement ruling for client Medtronic with respect to over $75 million in accused surgical screw products.
Securities Fraud and Financial Cases:
- Securities and Exchange Commission v. Alan C. Goldsworthy, et al., (D. Mass.). Served as first-chair trial counsel in defending former CFO of Applix, Inc. in an SEC civil enforcement action alleging premature revenue recognition on two software licensing transactions in violation of GAAP. Obtained a summary judgment dismissal as to the first transaction prior to trial. After a five-week jury trial on the second transaction, secured a defense verdict of no liability for CFO as to all scienter-based securities fraud claims, including claims under Rule 10b-5, Section 17(a)(1), Rule 13b2-2 (knowingly misleading outside auditors), Rule 13b-5 (knowingly violating internal accounting controls), and all aiding and abetting counts. Chairman of SEC had announced this as the initial "test case" under its new policy guidelines regarding when to seek civil monetary penalties against individual officers as opposed to public corporations.
- Falotti v. Oracle Corp. (N.D. Cal.). Lead trial counsel for client Falotti in arguing a $90 million stock options claim before the Ninth Circuit. Resulted in a confidential settlement.
Antitrust and Other Commercial Cases:
- Addamax Corp. v. Open Software Foundation, Inc. (D. Mass.). Member of trial team that won a bench trial dismissal of a $60 million antitrust claim relating to computer operating systems and security software. Drafted First Circuit briefing that resulted in upholding of dismissal on appeal.
- Gas Utilities Co. of Alabama v. Southern Natural Gas Co. (N.D. Ala.). Responsible for summary judgment motion resulting in dismissal of a $100 million plus antitrust action against client Southern Natural relating to natural gas transportation and distribution. Drafted Eleventh Circuit briefing that resulted in upholding of dismissal on appeal.
- George Wendt v. Host International Inc. (C.D. Cal.). Represented television actors from "Cheers" against hotel chain and movie studio in a celebrity identity rights case relating to the unauthorized use of robotic likenesses. Resulted in a confidential settlement.
Recent Presentations:
- "What Now For Patent Eligibility? In Bilski v. Kappos, The Supreme Court Rejects Machine-Or-Transformation As The Sole Test," Foley Executive Briefing Series, July 2010, Moderator and Presenter.
- "IP Cases -- A Year In Review: Converging Forces That Will Impact Your Business In 2010 And Beyond," Foley Executive Briefing Series, November 2009, Moderator and Presenter.
- "Willful Patent Infringement: Will Seagate Impact Strategies For Bringing And Defending Claims?" Foley Executive Briefing Series, October 2008, Moderator and Presenter
- What Lies Beneath: Maximizing Transaction Value When Intellectual Property Drives The Deal," Martindale-Hubbell Counsel to Counsel Forum, June 2008, Panelist.