New Decisions

January 29, 2018

The Southern District of Indiana Grants NCAA’s Motion for Default Judgment and Motion for Permanent Injunction

Indianapolis, IN – The National Collegiate Athletic Association had filed a Trademark infringement lawsuit in the Southern District of Indiana alleging that Kizzang LLC, infringed trademarks registered by the NCAA.

A recent Order signed by Judge Jane Magnus-Stinson grants the National Collegiate Athletic Association’s Motion for Default Judgment and Motion for Permanent Injunction against Defendant, Kizzang LLC.

The NCAA sued over Defendant’s use of the terms “Final 3” and “April Madness,” which Plaintiff alleges infringe on the trademarked phrases “Final Four” and “March Madness,” which are commonly used to refer to the annual men’s college basketball championship tournament.

January 26, 2018

Trademark Litigation: Florida Court Dismisses Suit Against Indiana Licensing Company Over Honus Wagner Trademark

By Overhauser Law Offices, LLC

Miami, Florida – Attorneys for Plaintiff, Honus Wagner Company, filed suit in the Southern District of Florida alleging that Defendants, Luminary Group LLC and Leslie Blair Roberts used the Plaintiff Honus Wagner’s name as an infringement to the Trademark “HONUS WAGNER.” The US District Court for the Southern District of Florida has granted the Defendants Motion to Dismiss for lack of personal jurisdiction.

Plaintiff alleged that, based on a chain of sales and succession, “it owns common law rights in the Honus Wagner name and mark.” Wagner was a famous baseball player for the Pittsburgh Pirates in the early 20^th century. Some of Wagner’s trading cards are among the most valuable pieces of sports memorabilia in the world.

January 18, 2018

The Northern District of Indiana Grants in part and denies in part ABRO Industries, Inc. Motion for Summary Judgment

By Overhauser Law Offices, LLC

South Bend, IN – ABRO Industries, Inc., of South Bend, Indiana, had filed a Copyright infringement lawsuit in the Northern District of Indiana alleging that 1 New Trade, Inc., Igor Zorin, Boris Babenchik, Vadim Fishkin of Baltimore Maryland, and Quest Specialty Coatings, LLC of Menomonee Falls, Wisconsin, infringed copyright on pending US Copyright Application No. 1-1845314781 filed by Plaintiff.

Plaintiff is an Indiana corporation that distributes automotive, industrial, and consumer products such as cleaners, adhesives, lubricants, service fluids, and engine additives. Defendant is a Maryland corporation that distributes similar types of products.

One of the products that Plaintiff distributes is a carburetor and choke cleaner. The copyright for the packaging of this product is pending under application number 1-1845314781. Plaintiff alleges that the Defendant has been unfairly competing by obtaining a similar product from Quest and redistributing it for sale in packaging virtually identical to Plaintiff’s packaging. Plaintiff alleges that Defendant is distributing a similar product, in identical packaging, to a similar market.

October 25, 2017

The USPTO Denies Petition filed by Neptune Generics, LLC in Challenge to Indiana-based Eli Lilly’s Patent

By Overhauser Law Offices, LLC

Petitioner, Neptune Generics, LLC had filed a petition with the United States Patent and Trademark Offices against Eli Lilly & Company of Indianapolis, Indiana, challenging the validity of patent no. 7,772,209, Antifolate combination therapies, which has been issued by the USPTO. This patent covers intellectual property embodied in Alimta®, a drug therapy used for the treatment of various types of cancer.

Lead Petitioner Neptune Generics, LLC is a Chicago, Illinois-based pharmaceutical company that focuses on increasing access to affordable medications. Defendant Eli Lilly is a multinational pharmaceutical company based in Indianapolis. Other petitioners joined in the case are Apotex, Inc, Teva Pharmaceuticals USA, Fresenius Kabi USA, and Wockhardt Bio AG.

March 29, 2017

Indiana Copyright Litigation: Seventh Circuit Asked to Address Discovery Rule in Context of Copyright Infringement

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – The Northern District of Indiana granted a motion for interlocutory appeal to the Seventh Circuit.

This Indiana copyright lawsuit involves Plaintiff Design Basics, LLC of Omaha, Nebraska, a company which “creates, markets, publishes and licenses the use of architectural works and technical drawings.” Defendant is Lancia Homes, Inc., a Fort Wayne company that builds homes.

During the course of litigation, Plaintiff stated that in 2013 it discovered that Defendant had infringed various copyrighted architectural works. A search of a website archive further revealed that “Defendant had actually been advertising infringing versions of the Plaintiff’s homes since May 18, 2006.”

In February 2016, Design Basics sued Lancia Homes alleging infringement of copyrighted architectural designs. It also named several entities under which Lancia also does business, including Lancia Construction, Springmill Development, Lancia Real Estate, Lancia Homes, Springmill Wood Development, and Waterford Enterprises,

Copyright litigators for Design Basics argued that its claims were not time barred under the Copyright Act, which states that “[n]o civil action shall be maintained under [its] provisions . . . unless it is commenced within three years after the claim accrued.” It argued that the traditional discovery rule, which provides that a claim accrues when the injured party discovers or should have discovered the allegedly infringing act, should be applied. Citing dicta in the Supreme Court’s decision in Petrella v. Metro-Goldwyn-Mayer, Inc., Defendant Lancia Homes argued that a claim for copyright infringement accrues at the time of the infringing act.

The district court agreed with Design Basics and applied the traditional discovery rule. Lancia Homes requested that the court certify the question for interlocutory appeal.

Under 28 U.S.C. § 1292(b), a trial court may certify an order for appeal if it “involves a controlling question of law, as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate determination of the litigation.” The court found that these conditions had been met and granted Plaintiff’s motion to certify the issue for interlocutory appeal.

Practice Tip: Design Basics argued against an interlocutory appeal. In granting Lancia Homes’ request for interlocutory appeal, the court noted that Design Basics has 24 similar lawsuits pending in the Northern District of Indiana, stating that it “would be more efficient for the Court of Appeals to consider and decide what, if any, impact Petrella has on the statute of limitations for infringement claims within this Circuit before many of the Plaintiff’s cases within this District are to proceed to trial.”

March 22, 2017

Patent Law: Federal Circuit Rules on Two Eli Lilly Patent Cases

By Overhauser Law Offices, LLC

Washington, D.C. — The Federal Circuit ruled on two patent infringement decisions, Los Angeles Biomedical Research Institute v. Eli Lilly & Co. and Eli Lilly & Co. v. Los Angeles Biomedical Research Institute, that involve Indianapolis-based Eli Lilly and Company.

These companion cases pertain to a pharmaceutical patent, U.S. Patent No. 8,133,903 (“the ’903 patent”), owned by Los Angeles Biomedical. Also at issue is one prior art reference, International Patent Application No. WO 01/80860, published Nov. 1, 2001, common to both lawsuits.

Los Angeles Biomedical Research Institute v. Eli Lilly & Co. arose as an inter partes review of a decision by the Patent Trial and Appeal Board holding all claims of the ‘903 patent to be obvious. The Federal Circuit reviewed claims in a provisional application relating to a study involving rats in combination with a method in an uncited reference to convert those results to apply to humans. It held that the rat study and uncited conversion method did not support the claimed dosage for humans. It further concluded that claims directed to an underlying condition should not be construed broadly to treat symptoms of that condition, holding that the Board had not adopted the broadest reasonable interpretation of the claims but instead had adopted an overbroad interpretation. The panel remanding, stating:

The question remains whether a person of skill in the art would have had a reason to combine [the three cited references relating to the medical condition] and would have had a reasonable expectation of success from doing so. Because the Board’s obviousness analysis was based on an erroneous construction of the claim language and an overly broad interpretation of [one of the references], and because the Board did not address the record evidence summarized above, we remand for the Board to make new findings as to whether there was an apparent reason to combine the prior art references and whether that combination would have rendered [the treatment] obvious.

March 10, 2017

Indiana Trademark Law: Court Rules for Winnebago on Trade Dress Claims

By Overhauser Law Offices, LLC

South Bend, Indiana – Judge Robert L. Miller, Jr. of the Northern District of Indiana dismissed claims concerning trade dress infringement.

In this Indiana trademark lawsuit, Forest River, Inc. of Elkhart, Indiana sued Winnebago Industries, Inc. of Forest City, Iowa and its subsidiary Winnebago of Indiana, LLC alleging trademark infringement, trade dress infringement, unfair competition, false designation of origin, and false and misleading representations.

Overhauser Law Offices, LLC filed a partial motion to dismiss with the court, arguing that Forest River had neither sufficiently identified the features that constituted the claimed trade dress nor provided any factual support for its assertion that such features were non-functional.

The court noted that “to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678. The claim is deemed plausible if “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

In this litigation, such a showing required that Forest River define its trade dress. It must also plead sufficient facts to show that the claimed trade dress is nonfunctional, has acquired secondary meaning and that a likelihood of confusion exists between its trade dress and Winnebago’s trade dress.

The court agreed with Winnebago, concluding that Plaintiff had relied on “conclusory and meaningless” assertions in its pleadings. Consequently, it granted Winnebago’s motion and dismissed without prejudice Forest River’s claims concerning trade dress infringement under the Lanham Act, 15 U.S.C. §1125(a) as well as similar claims made under common law.

Overhauser Law Offices represented Winnebago in obtaining this successful order dismissing the trade dress claims.

February 24, 2017

Indiana Patent Litigation: Trial Court Grants Stay in Axiron Lawsuit

By Overhauser Law Offices, LLC

Indianapolis, Indiana – The matter of Eli Lilly and Company, et al. v. Apotex Inc., et al. has been stayed pending a ruling by the U.S. Court of Appeals for the Federal Circuit.

This Indiana lawsuit was initiated by Lilly, an Indianapolis pharmaceutical company, in conjunction with other Plaintiffs. Patent attorneys for Plaintiffs filed a lawsuit asserting patent infringement after Defendants filed an Abbreviated New Drug Application seeking approval to market a generic version of the drug Axiron® before various patents related to the drug expired. Among Plaintiffs’ contentions were claims of patent infringement of seven patents pertaining to Axiron.

In this motion, patent lawyers for Plaintiffs have asked the court to stay its proceedings pending a ruling in a similar case, Eli Lilly and Company, et al. v. Perrigo Company, et al. The Perrigo case was filed in the Southern District of Indiana in 2013. After a trial, the court issued findings including that one claim in one of the Axiron patents was invalid, while two claims pertaining to another Axiron patent were valid. That ruling was appealed to the Federal Circuit; that appeal remains pending.

February 15, 2017

Seventh Circuit Trade Dress Law: District Court Finds Functionality as a Matter of Law; Seventh Circuit Affirms

By Overhauser Law Offices, LLC

Chicago, Illinois – Arlington Specialties, Inc. of Elk Grove Village, Illinois appealed the summary judgment granted by the U.S. District Court of Northern Illinois, Eastern Division in favor of Urban Aid, Inc. of Los Angeles, California.

The plaintiff’s and defendant’s bags are shown on the last page:

The Seventh Circuit does not issue trade dress opinions very often, but it issued one January 27, 2017. It is especially helpful because it sums up the state of trade dress law in the Circuit.

January 23, 2017

U.S. Court of Appeals Rules In Lilly’s Favor on Alimta Vitamin Regimen Patent

By Overhauser Law Offices, LLC

Indianapolis, Indiana – The U.S. Court of Appeals for the Federal Circuit has upheld the district court’s decision and ruled in favor of Eli Lilly regarding validity and infringement of the vitamin regimen patent U.S. Patent No. 7,772,209 for Alimta® (pemetrexed for injection).

In the case of Eli Lilly and Company v. Teva Parenteral Medicines, Inc., et al., the court affirmed the earlier district court’s rulings that the vitamin regimen patent is valid and would be infringed by the generic challengers’ proposed products. If the patent is ultimately upheld through all remaining challenges, Alimta would maintain U.S. exclusivity until May 2022, preventing marketing of generic products for as long as the patent remains in force. The Alimta compound patent remains in force through January 24, 2017.

In March 2014, the U.S. Court for the Southern District of Indiana upheld the validity of the vitamin regimen patent. In August 2015, the same court ruled in Lilly’s favor regarding infringement of the vitamin regimen patent.