Articles Posted in New Litigation

August 22, 2014

Indiana Patent Litigation: Kimball International Sues Westin-Nielsen for Infringement of Two Design Patents

Indianapolis, Indiana – Indiana patent attorneys for Kimball International, Inc. of Jasper, Indiana commenced intellectual property litigation in the Southern District of Indiana alleging that NWN, Inc., d/b/a Westin-Nielsen, infringed Design Patent Nos. D654,718 for a “Side Chair” and D665,188, also for a “Side Chair.” These design patents have been issued by the U.S. Patent Office.

Kimball, a furniture design and manufacturing company that has operated for over four decades, asserts that Westin-Nielsen’s “Cascade” line of chairs infringes Kimball’s intellectual property rights in two design patents. The Cascade line of chairs, named after the Cascade River in northern Minnesota, is designed for plus-sized seating.

At issue in this design patent litigation are United States Design Patent Nos. D654,718 (the “‘718 Patent”) and D665,188 (the “‘188 Patent”). Westin-Nielsen is accused of infringing these patented designs, either directly or contributorily, by making, using, selling, offering for sale, or supplying products such as Westin-Nielsen’s Cascade line of chairs. Kimball asserts that Westin-Nielsen will continue to do so unless enjoined.

The complaint, filed by Indiana patent lawyers for Kimball, lists the following counts:

• Infringement of United States Design Patent No. D654,718

• Infringement of United States Design Patent No. D665,188

Kimball asks that the court:

• Adjudge that NWN has infringed the ‘718 and ‘188 Patents in violation of 35 U.S.C. § 271;

• Issue preliminary and permanent injunctive relief prohibiting NWN and its agents from infringing the ‘718 and ‘188 Patents pursuant to 35 U.S.C. § 283;

• Award Kimball damages for patent infringement, and prejudgment interest and costs against NWN pursuant to 35 U.S.C. § 284;

• Adjudge that NWN’s infringement of the ‘718 and ‘188 Patents has been deliberate, willful, and wanton;

• Adjudge that NWN’s infringement of the ‘718 and ‘188 Patents has been exceptional under 35 U.S.C. § 285;

• Treble the damage award under 35 U.S.C. § 284;

• Award Kimball its reasonable attorneys’ fees under 35 U.S.C. § 285; and

• Award Kimball the total profits received or derived by NWN from the manufacture, marketing, sale, offering for sale, and/or distribution of products bearing or using any copy or colorable imitation of the ‘718 and ‘188 Patents pursuant to 35 U.S.C. § 289.

Practice Tip: The U.S. Supreme Court ruled this year that a trial court may award attorneys’ fees in case of patent infringement litigation that it deems “exceptional.” These Supreme Court rulings revisiting how “exceptional” is defined may benefit any company which is the target of a questionable patent infringement lawsuit, as trial judges will now have greater latitude to award attorneys’ fees in those cases in which they determine that the conduct of the losing party “stands out from others.”

August 14, 2014

Indiana Patent Infringement Lawsuit: CeraMedic Sues DePuy Orthopaedics

By Overhauser Law Offices, LLC

South Bend, Indiana – In conjunction with New York intellectual property co-counsel,

biolox picture.jpg

Indiana patent attorneys for CeraMedic LLC of Plano, Texas sued in the Northern District of Indiana alleging that DePuy Orthopaedics, Inc. of Warsaw, Indiana (“DePuy”) infringed “Sintered AL₂O₃ Material, Process for Its Production and Use of the Material,” Patent No. 6,066,584 (the “‘584 patent”), which has been issued by the U.S. Patent Office.

The ‘584 patent relates to the field of ceramics and concerns sintered Al₂O₃ compositions and methods for the use of such material as medical implants or tool material. It was issued in May 2000 to Fraunhofer-Gesellschaft zur Förderung der Angewandten Forschung e.V., Germany (“Fraunhofer”), Europe’s largest application-oriented research organization. CeraMedic states that Fraunhofer, the assignee of over 1,500 U.S. patents, assigned ownership of the ‘584 patent to CeraMedic in early 2014.

CeraMedic indicates that non-party CeramTec GmbH (“CeramTec”) developed and manufactures BIOLOX Delta, an aluminum oxide matrix composite ceramic consisting of approximately 82% alumina (Al₂O₃), 17% zirconia (ZrO₂), and other trace elements.

CeraMedic then states that Defendant DePuy “designs, develops, manufactures, offers for sale, sells, uses, distributes, and markets hip implants, many of which include” CeramTec’s BIOLOX Delta and that such actions constitute infringement of the ‘584 patent. DePuy is accused of infringing the ‘584 patent directly, literally, and/or by equivalents.

The complaint, filed by New York patent attorneys in conjunction with Indiana patent lawyers, lists a single count: infringement of the ‘584 patent. CeraMedic asks the court for a judgment against DePuy determining that DePuy has infringed and continues to infringe one or more claims of the ‘584 patent; enjoining DePuy and its agents from further infringing the ‘584 patent; ordering DePuy to account for and pay to CeraMedic all damages suffered by CeraMedic as a consequence of DePuy’s alleged infringement of the ‘584 patent, together with interest and costs; trebling or otherwise increasing CeraMedic’s damages under 35 U.S.C. § 284 upon a finding that the asserted infringement by DePuy of the ‘584 patent was deliberate and willful; and declaring that this case is exceptional and awarding to CeraMedic its costs and attorneys’ fees in accordance with 35 U.S.C. § 285.

Practice Tip: DePuy Orthopaedics Inc. has been involved in similar Indiana patent infringement litigation before. See, e.g.:

• Howmedica Osteonics Corp. and Stryker Ireland Ltd. Sues DePuy Orthopaedics Inc.

for Patent Infringement of a Surgical Implant Used in Hip Replacement Procedures

• Orthopaedic Hospital Seeks Injunction and Damages for Patent Infringement

August 13, 2014

Indiana Patent and Trade Dress Litigation: Polymer Technology Systems Asserts Patent and Trade Dress Infringement of Its Cholesterol Testing Technology

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana patent attorneys for Polymer Technology Systems, Inc. (“PTS”) of Indianapolis, Indiana filed an intellectual property lawsuit in the Southern District of Indiana alleging that Jant Pharmacal Corporation of Encino, California (“Jant”) Infopia America LLC of Titusville, Florida (“Infopia USA”) and Infopia Co., Ltd. of Kyunggi, Korea (“Infopia

Korea”) infringed “Method for determining HDL concentration from whole blood or plasma,” Patent No. 7,087,397, which was issued by the U.S. Patent Office. PTS has also accused Defendants of federal unfair competition under the Lanham Act.

PTS develops, manufactures and sells point-of-care diagnostic products for the human healthcare market. At issue in this Indiana litigation is PTS’s “CardioChek® Multi-Analyte Strip,” a hand-held, point-of-care testing system that can test for total cholesterol, high-density lipoproteins (HDL) and triglycerides with a single drop of blood. In August 2006, Patent No. 7,087,397 (“the ‘397 Patent”) was issued to PTS. PTS indicates that this patent includes a significant portion of the technology embodied in this Indiana invention.

Defendant Infopia Korea has also developed a test strip that tests for total cholesterol, high-density lipoproteins and triglycerides. This system is branded as the LipidPlus Lipid Profile Test Strip. PTS contends that Infopia Korea imports the LipidPlus testing strip into the United States and that Defendants Infopia USA and Jant offer and sell the LipidPlus product in the U.S. market.

PTS alleges that much of the technology incorporated into the LipidPlus testing strip is copied from PTS’s CardioChek product. It contends that the copied aspects include the concept of the testing strip itself, the analytes selected for analysis, the structure of the strip and the chemistries used. PTS also contends that Defendants have copied the trade dress of PTS’s CardioChek testing strip. PTS further accuses Defendants of offering the LipidPlus testing strip at a price that is both extremely low and below cost.

In its complaint, filed by Indiana trade-dress and patent lawyers, PTS alleges the following:

• Count I: Patent Infringement of the ‘397 Patent

• Count II: Violation of the Lanham Act, 15 U.S.C. 1125(a)

PTS asks the court:

• for a judgment that the ‘397 Patent is valid and enforceable;

• for a judgment of direct or indirect infringement, or inducement to infringe, by Defendants;

• to declare that Defendants have unfairly competed with PTS by infringing and misappropriating PTS’s trade dress;

• for an award to PTS of lost profits and a reasonable royalty for Defendants’ acts of patent infringement and trade-dress infringement;

• to treble the award of damages pursuant to a finding of willful, intentional and deliberate infringement;

• for an injunction prohibiting Defendants from engaging in acts of infringement or unfair competition; and

• for a declaration that the case is exceptional and an award of attorneys’ fees.

Practice Tip: The United States Supreme Court addressed the elements required for trade dress to be protected in Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992). In Two Pesos, the Court held that, to establish a cause of action for trade dress infringement, a plaintiff must establish that (a) the design is non-functional; (b) the design is inherently distinctive or distinctive by virtue of having acquired secondary meaning; and (c) there is a likelihood of confusion.

August 7, 2014

Indiana Trademark Litigation: Rieke Corporation Sues Riekes Packaging Corporation for Trademark Infringement

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – An Indiana trademark attorney for Rieke Corporation d/b/a Rieke Packaging Systems of Auburn, Indiana sued in the Northern District of Indiana alleging that Riekes Packaging Corporation of Nebraska infringed the trademark Rieke Packaging Systems®, Trademark No. 2742836, which has been registered by the U.S. Trademark Office.

Plaintiff Rieke Corporation states that it is one of the largest manufacturers of packaging components in the world. Its product line includes pumps, foamers, and sprayers for household dispensers as well as plastic and steel closures, caps, drum and pail enclosures, rings and levers for the industrial market. These products are used to store, transport, process and dispense various products in the agricultural, beverage, food, household products, industrial, medical, nutraceutical, personal care and pharmaceutical markets.

Plaintiff asserts that it has spent a considerable amount of money establishing the “Rieke Packaging Systems” trade name and trademark in the minds of customers as a source of high-quality and reliable packaging dispensers and closures. It claims that the trade name and trademark have become associated in the minds of purchasers with Plaintiff as “one of the largest and most reputable manufacturers and distributors of high quality and reliable packaging dispensers and closures in the world.”

Defendant Riekes Packaging Corporation has been manufacturing and selling packaging components since the corporation’s formation in 2012, according to Plaintiff. Rieke Corporation indicates that the “Riekes Packaging Corporation” name is shown on Defendant’s glass bottles, plastic bottles, plastic closures, caps, metal closures, dispensing closures and systems, tubes and other similar goods.

In this Indiana trademark lawsuit, Rieke Corporation accuses Riekes Packaging Corporation of knowing, deliberate, and intentional violations of Plaintiff’s trademark rights, stating Defendant’s use of the “Riekes Packaging Corporation” trade name or trademark with or on its products is likely to cause confusion in the marketplace regarding whether there is an association between Plaintiff and Defendant and as to the source or origin of Defendant’s goods. In their complaint, filed by an Indiana trademark lawyer, Plaintiff lists the following counts:

Count I-rademark Infringement under the Lanham Act
Count II-Unfair Competition under Section 43(a) of the Lanham Act
Count III-Common Law Trademark Infringement and Unfair Competition

Rieke Corporation asks the court to:

• enjoin Defendant and its agents from using “Riekes Packaging Corporation” as business name; in connection with sales or other commercial activities; or in a way that would be likely to lead others to believe that Defendant or its products were connected with Plaintiff;

• enjoin Defendant from engaging in any other activity that would constitute unfair competition;

• direct Defendant to recall infringing materials;

• declare that Defendant’s use of “Riekes Packaging Corporation” in connection with the sale of packaging products and components constitutes trademark infringement under the Lanham Act and the common law of the state of Indiana;

• direct that Defendant cancel or otherwise modify any trademark applications containing the “Riekes Packaging Corporation” name; and

• award to Rieke Corporation damages, including enhanced damages, costs and attorney’s fees.

Practice Tip: Under U.S. trademark law, trademarks that are primarily surnames, or which consist of a surname and other material that is not registrable as a trademark, are treated the same as descriptive trademarks. Thus, the trademark will not be protected as intellectual property until it has achieved secondary meaning through advertising and/or use over an extended period of time. Once that surname has acquired secondary meaning, it may be protectable as a trademark and others can be prevented from using the trademark on confusingly similar goods, even if that person has the same last name. So, for example, Joe McDonald could expect a legal challenge – presumably one that would succeed – if he opened a restaurant named “McDonald’s,” despite that “McDonald” is his last name.

August 4, 2014

Indiana Patent Litigation: Tippmann Family Dispute Regarding Patent Ownership and Validity Escalates to Litigation

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – Indiana patent attorneys for Vincent P. Tippmann, Sr. Family, LLC and Tippmann Refrigeration, Inc., both of Fort Wayne, Indiana, filed an intellectual property lawsuit in the Northern District of Indiana against Gerald Tippmann of Fort Wayne, Indiana to correct ownership of Patent No. 8,220,287, “Apparatus and Method for Blast Freezing or Thawing A Product,” which was issued by the U.S. Patent Office. In addition to listing requests regarding inventorship, this Indiana patent lawsuit asks the court to, in the alternative, grant a judgment under Indiana State law of negligent misrepresentation and constructive fraud on the part of Defendant, Gerald Tippmann, and for associated relief and damages.

Vincent P. Tippmann Sr. Family, LLC (“Tippmann Family, LLC”) claims ownership of the patent-in-suit, a technology that facilitates rapid and efficient freezing and thawing of food products. It also indicates that it is the inventing and owning company of various patents and patent applications related to apparatuses and methods for blast freezing and/or thawing of products.

Rapid freezing was historically done in blast freezers, which are expensive and result in irregular freezing rates across arranged product stacks. Plaintiffs assert that Defendant Gerald Tippmann and Vincent P. Tippmann Jr. (presumably an employee of Tippmann Family, LLC) were the first to recognize, and jointly design, test and reduce to practice a new method and system for freezing and thawing boxes or pallets of a commodity more efficiently and rapidly through the strategic arrangement of product boxes and pallets to create a directional airflow.

This Indiana patent litigation concerns that invention, U.S. Patent No. 8,220,287 (the “‘287 Patent”), for which Tippmann Family, LLC is the assignee. According to Plaintiffs, the inventor declaration for the patent-in-suit that was signed by Gerald Tippmann averred that he and Vincent P. Tippmann Jr. were co-inventors and that the invention “was not in public use or on sale in the United States of America more than one year prior to filing this application.”

In May 2012, Gerald Tippmann left the employ of Tippmann Refrigeration, and became associated with Tippmann Construction, LLC (“Tippmann Construction”), a competitor of Tippmann Family, LLC. The owners of the Tippmann Family, LLC and the competing Tippmann Construction are relatives.

In June 2013, Gerald Tippmann and the Indiana patent lawyer for Tippmann Construction prepared a supplemental inventor declaration and disclosure statement to “clarify” statements Gerald Tippmann had made in his previous disclosures in the Tippmann Family, LLC applications. According to Plaintiffs, this supplemental declaration directly contradicts all previous declarations made by Gerald Tippmann with regard to his joint inventorship with Vincent P. Tippmann Jr., especially including its assertions that Gerald Tippmann was the sole inventor of the patent-in-suit.

In this supplemental declaration, Gerald Tippmann also indicates that he had been “mistaken” regarding the initial public display of the invention. Specifically, he claims that he had commercialized and publically used the underlying invention while in the employ of an unrelated Florida company called Citrus World on or about 1996-97.

The complaint, filed by Indiana intellectual property counsel, lists the following causes of action:

• Declaratory Judgment of Joint Inventorship, Correction of Inventorship under 35 U.S.C. § 256
• Negligent Misrepresentation under Indiana State Law
• Constructive Fraud under Indiana State Law

Plaintiffs ask that the court:

(a) Find that Gerald Tippmann and Vincent P. Tippmann Jr. are the true inventors of the ‘287 Patent;
(b) Find that Gerald Tippmann’s actions at Citrus World were an experimental use, not a public use or a commercialization, and that the invention was not ready for patenting at that time;
(c) Estop Gerald Tippmann from declaring the assertions set forth in his Declaration in the related continuation and divisional applications associated with the ‘287 Patent and any future related patents that he has assigned to the Tippmann Family, LLC;
(d) Award to Tippmann Family, LLC all costs and attorney’s fees;
(e) Alternatively to (a)-(d), find that Gerald Tippmann has committed negligent misrepresentation with respect to the actions described above, and that the Tippmann Family, LLC be awarded costs, attorney’s fees, and damages; and
(f) Alternatively to (a)-(d), find that Gerald Tippmann has committed constructive fraud with respect to the actions described above, and that the Tippmann Family, LLC be awarded costs, attorney’s fees, and damages.

Practice Tip: Public disclosure – as Gerald Tippmann has apparently claimed – is often, but not always, a bar to patentability. Indiana inventors are advised to consult with an Indiana patent lawyer to determine whether their invention(s) can be protected under U.S. patent law.

July 18, 2014

Indiana Patent and Trademark Litigation: American Archery Accused of Patent and Trademark Infringement

By Overhauser Law Offices, LLC

Evansville, Indiana – Indiana intellectual property attorneys for SOP Services, Inc. of Las Vegas, Nevada and Bear Archery, Inc. of Evansville, Indiana (collectively “Bear Archery”) initiated an infringement lawsuit in the Southern District of Indiana alleging that American Archery, LLC of Suwanee, Georgia infringed “Arrow Rest,” Patent No. RE38,096; “Arrow Rest System and Method,” Patent No. 6,978,775; WHISKER BISCUIT ARROW REST, Trademark Registration No. 2,501,255; and WHISKER BISCUIT, Trademark Registration No. 3,312,392, which have been issued by the U.S. Patent and Trademark Office.

Bear Archery is in the business of researching, developing, designing, manufacturing, and selling archery products. Its business includes traditional archery bows, compound bows, bow sights, arrow rests, arrows and arrow components, archery targets, and various other archery accessories. American Archery is in the business of selling hunting products and accessories, including archery products.

At issue in this Indiana intellectual property dispute are arrow rests for mounting to archery bows. The lawsuit asserts claims of patent infringement, trademark infringement, as well as false and deceptive labeling and unfair competition.

American Archery is accused of selling counterfeit arrow rests, both through its website and through online auction sites. Specifically, Bear Archery asserts that the “ready to shoot” packages offered by American Archery advertise that they include a genuine Bear Archery Whisker Biscuit® arrow rest as part of the preassembled bow. However, Plaintiffs state, the bow that a consumer receives instead includes a pre-installed counterfeit arrow rest.

There are two patents at issue in this litigation: “Arrow Rest,” Patent No. RE38,096 (the “‘096 patent”) and “Arrow Rest System and Method,” Patent No. 6,978,775 (the “‘775 patent”). The ‘096 patent and the ‘775 patent (collectively “the patents-in-suit”) are owned by SOP Services. Bear Archery has been granted an exclusive license to the patents-in-suit. Plaintiffs accuse American Archery of having willfully, intentionally and deliberately infringed the patents-in-suit by offering the allegedly counterfeit items.

In addition to patent infringement assertions, this Indiana litigation also includes allegations of trademark infringement. Bear Archery contends that it owns trademark rights for the Whisker Biscuit mark, indicating that it has used the mark with its arrow rest products since at least 1999. It claims that consumers have come to recognize the mark as identifying Bear Archery’s arrow rest products. It further asserts that it owns a trademark on “Whisker Biscuit Arrow Rest” for archery equipment, namely arrow-rest devices. Bear Archery claims that American Archery’s use of the marks is likely to cause confusion, mistake, or deception as to origin, sponsorship or approval and therefore constitute trademark infringement and counterfeiting in violation of Section 32 and 43(a) of the Lanham Act, 15 U.S.C. § 1114 et seq. and the common law.

Bear Archery includes a final claim of “false and deceptive labeling and unfair competition” under Lanham Act 15 U.S.C. §1125 and the common law.

Bear Archery, via its Indiana intellectual property lawyers, asks the court for the following relief:

A. A judgment of infringement of the ‘096 patent and the ‘775 patent;
B. A judgment that the use of the “WHISKER BISCUIT” mark in Defendant’s commercial advertising and sales in the Unites States creates a likelihood of confusion, mistake, or deception among relevant consumers and therefore infringes Plaintiff’s trademarks;
C. A judgment that Defendant has engaged in counterfeiting with respect to Plaintiffs’ trademarks;
D. An order permanently restraining Defendant or any of its agents from further acts of infringement of the patents-in-suit;
E. An order permanently restraining Defendant or any of its agents from engaging in misleading advertising of products or services bearing or resembling the “WHISKER BISCUIT” mark that have caused actual confusion, mistake or deception of the public;
F. An order that all infringing devices or materials in the possession of, or subject to control by, Defendant or its agents be delivered up and destroyed or altered to eliminate any possibility any further infringement;
G. An award of damages not less than a reasonably royalty, adequate to compensate Plaintiffs for Defendant’s acts of infringement under 35 U.S.C. §284;
H. An award to Plaintiffs of treble Defendant’s profits under 15 U.S.C. § 1117(a) and (b);
I. An award to Plaintiffs of statutory damages for counterfeiting up to $2,000,000, pursuant to 15 U.S.C. § 1117(c);
J. An order declaring that this is an exceptional case pursuant to 35 U.S.C. § 285 and 15 U.S.C. 1117 as a result of Defendant’s knowing and willful infringement of the patents-in-suit and the asserted trademarks, and awarding Plaintiffs their attorneys’ fees;
K. An award of Plaintiffs’ costs, and/or expenses; and
L. Aw award of Defendant’s wrongful profits associated with its infringement of Plaintiffs’ patent and/or trademark rights.

Practice Tip: Bear Archery requested that eBay remove various auctions posted by Bear Archery on the grounds that the items for sale were counterfeit. Bear Archery indicates that eBay removed the auctions and notified American Archery that the auctions had been removed because they had been flagged as offering counterfeit goods. Bear Archery requested this under eBay’s Verified Rights Owner (“VeRO”) Program. The VeRO Program provides a mechanism for an owner of intellectual property to request the removal of eBay auctions that offer items that infringe that owner’s intellectual property rights.

July 16, 2014

Indiana Patent Litigation – Stopinc AG Sues J.W. Hicks Inc. for Patent Infringement

By Overhauser Law Offices, LLC

Hammond, Indiana – An Indiana patent attorney for Stopinc Aktiengesellschaft of Hünenberg, Switzerland sued in the Northern District of Indiana alleging that J. W. Hicks Inc. of Merrillville, Indiana infringed “Slide Gate for a Container Containing Molten Metal,” Patent No. 6,422,435, which has been issued by the U.S. Patent Office.

Plaintiff Stopinc Aktiengesellschaft (“Stopinc AG”) asserts that it is the owner by assignment of Patent No. 6,422,435 (the “‘435 patent”). It charges Defendant J. W. Hicks Inc. with infringing upon the patent by, inter alia, importing into the United States and selling its product, known both as the OMEGA Slidegate Systems and also as the TITAN Slidegate, that infringes at least claims 1, 8, 11 and 12 of the ‘435 patent. Stopinc AG also asserts that J. W. Hicks Inc. has induced and contributed to the infringement of the patent by others. Finally, Stopinc AG contends that Defendant’s acts of infringement and inducement to infringe are willful, knowing and deliberate.

A single count – patent infringement – is listed in Stopinc AG’s complaint, which was filed by an Indiana patent lawyer. The Indiana court is asked for the following relief:

• An injunction prohibiting Defendant and its agents from marketing, importing, offering for sale, selling, advertising or promoting or distributing in the United States any products that infringe the ‘435 patent;
• An Order that all infringing products, as well as all means for producing, advertising or promoting those products, be destroyed;
• An Order that all infringing products already distributed be recalled;
• Damages, including Defendant’s profits, as well as for Plaintiff’s lost sales, attorney’s fees, and interest; and
• That damages be trebled.

Practice Tip: Patent infringement can be demonstrated under two general theories: literal infringement and infringement under the doctrine of equivalents. An assertion of “literal infringement” will require a showing that every element recited in a claim has identical counterpart in the accused device or method. A claim may also be infringed under the “doctrine of equivalents” if some other element of the accused device or method performs substantially the same function, in substantially the same manner, to achieve substantially the same result.

July 11, 2014

Indiana Copyright Litigation: Count in Dallas Buyers Club Copyright Lawsuits Reaches 80 Defendants

By Overhauser Law Offices, LLC

Indianapolis, Indiana – A copyright attorney for Dallas Buyers Club, LLC of The Woodlands, Texas has filed three additional complaints against Doe Defendants in the Southern District of Indiana. Two of these latest complaints include allegations against 20 separate as-yet- MV5BMTg0MDc3ODUwOV5BMl5BanBnXkFtZTcwMTk2NjY4Nw@@__V1_SX214_CR0,0,214,317_AL_.jpg unidentified Defendants, while the third lists 16 new Defendants. The Doe Defendants are accused of infringing the copyright of the motion picture “Dallas Buyers Club,” which has been registered with the U.S. Copyright Office.

The movie in question, Dallas Buyers Club, stars Matthew McConaughey (pictured) as an AIDS patient who smuggled unapproved AIDS-treatment drugs into the United States during the 1980s for his own use and to distribute to others afflicted with AIDS. The movie was nominated for six Academy Awards and won three. Matthew McConaughey and Jared Leto also won Oscars for Best Actor and Best Supporting Actor, respectively, for their performances in the movie.

These copyright lawsuits are in addition to another similar complaint filed recently by Plaintiff, wherein 24 separate Doe Defendants were sued. In these latest Indiana copyright infringement lawsuits, filed by a copyright lawyer for Dallas Buyers Club, LLC, Plaintiff asserts that the copyrighted movie was infringed by another 56 as-yet unnamed individuals, who were sued as “Doe” Defendants.

Plaintiff alleges that this copyright infringement occurred using the “BitTorrent protocol,” which is different from the standard peer-to-peer protocol. Specifically, the BitTorrent protocol enables numerous computers, even those with low bandwidth, to exchange pieces of a computer file among themselves. Each computer that has downloaded a particular piece of a file then becomes a source from which other computers may download that piece of the file. As a result, the entirety of a computer file may be disseminated across the Internet quickly without having to rely on a central source from which to download.

Plaintiff contends that Defendants in each lawsuit acted as part of a “collective enterprise” to infringe its work and that the acts constituting the infringement were “willful, intentional, and in disregard of and with indifference” to Plaintiff’s intellectual property rights.

The court is asked to enter judgment for the following monetary and injunctive relief:

• for entry of permanent injunctions providing that each Defendant shall be enjoined from directly or indirectly infringing Plaintiff’s rights in the movie;
• for judgment that Defendants have: a) willfully infringed Plaintiff’s rights in its federally registered copyright pursuant to 17 U.S.C. §501; and b) otherwise injured the business reputation and business of Plaintiff;
• for actual or statutory damages pursuant to 17 U.S.C. §504 in an amount to be determined at trial;
• for an Order of Impoundment under 17 U.S.C. §§503 and 509(a) impounding all infringing copies of the movie that are in Defendants’ possession or under their control; and
• for attorneys’ fees, litigation expenses, including fees and costs of expert witnesses, and other costs of this action.

Practice Tip #1:

Copyright trolling, also known as “porn trolling” when the plaintiff owns copyrights to pornographic material, has changed in the years since the practice began. Most early lawsuits were filed against tens, hundreds or even in excess of a thousand anonymous defendants. When judges such as District Judge Otis Wright made it clear that this misjoinder would not be permitted, porn trolls began filing multiple lawsuits claiming copyright infringement against single defendants.

Porn trolls also responded to this change in the judicial landscape by adding a new exhibit, “Exhibit C,” with each filing. Exhibit B to each complaint was a legally relevant listing of the Malibu Media copyrights that were allegedly infringed. However, Exhibit C listed other pornographic material – material not owned by Malibu Media – allegedly downloaded by the internet protocol address of the accused.

While the titles of Malibu Media’s copyrighted works are often fairly innocuous – “Almost Famous,” “Blonde Ambition” and “LA Plans” are among their works – the titles listed in Exhibit C were decidedly not. In response these and other Malibu Media copyright litigation tactics, one federal judge, District Judge William Conley, said, “[t]hese Internet copyright infringement cases … give off an air of extortion.” He sanctioned Malibu Media’s counsel under Rule 11 and ordered a fine of $2,200.

Practice Tip #2:

Mass misjoinder in copyright cases has also been flagged as impermissible in other, non-pornography, cases that assert copyright infringement against multiple defendants. In one recent Indiana copyright lawsuit, Magistrate Judge Denise K. LaRue, writing for the Southern District of Indiana, severed all but one defendant from the copyright infringement complaint of Richard Bell, an Indiana copyright attorney. The court also ordered Bell to pay separate filing fees for each new cause of action.

July 10, 2014

Indiana Patent Litigation: CeraMedic Sues Zimmer for Patent Infringement

By Overhauser Law Offices, LLC

South Bend, Indiana – Indiana patent lawyers for CeraMedic LLC of Plano, Texas sued for biolox picture.jpg patent infringement in the Northern District of Indiana alleging that Zimmer Holdings, Inc. and Zimmer, Inc., both of Warsaw, Indiana (collectively “Zimmer”), infringed “Sintered Al₂O₃ Material, Process for Its Production and Use of the Material,” Patent No. 6,066,584, which has been issued by the United States Patent Office.

Patent No. 6,066,584 (the “‘584 patent”) relates to the field of ceramics and concerns sintered Al₂O₃ compositions and methods for the use of such material as medical implants or tool material. Similar litigation was also recently commenced against Biomet by Indiana patent attorneys for CeraMedic.

The ‘584 patent was issued in May 2000 to Fraunhofer-Gesellschaft zur Förderung der Angewandten Forschung e.V., Germany (“Fraunhofer”), Europe’s largest application-oriented research organization. CeraMedic states that Fraunhofer, the assignee of over 1,500 U.S. patents, assigned ownership of the ‘584 patent to CeraMedic in early 2014.

CeraMedic indicates that non-party CeramTec GmbH (“CeramTec”) developed and manufactures Biolox delta, (pictured) an aluminum oxide matrix composite ceramic consisting of approximately 82% alumina (Al₂O₃), 17% zirconia (ZrO₂), and other trace elements.

The allegations Defendant Zimmer include that it “designs, develops, manufactures, offers for sale, sells, uses, distributes, and markets hip implants, many of which include” CeramTec’s Biolox product and that such actions constitute infringement of the ‘584 patent. Zimmer is accused of infringing the ‘584 patent directly, literally, and/or by equivalents.

The complaint, filed by Indiana patent counsel, lists a single count: infringement of the ‘584 patent. CeraMedic asks the court for a judgment against Zimmer determining that Zimmer has infringed and continues to infringe one or more claims of the ‘584 patent; enjoining Zimmer and its agents from further infringing the ‘584 patent; ordering Zimmer to account for and pay to CeraMedic all damages suffered by CeraMedic as a consequence of Zimmer’s alleged infringement of the ‘584 patent, together with interest and costs; trebling or otherwise increasing CeraMedic’s damages under 35 U.S.C. § 284 upon a finding that the asserted infringement by Zimmer of the ‘584 patent was deliberate and willful; and declaring that this case is exceptional and awarding to CeraMedic its costs and attorneys’ fees in accordance with 35 U.S.C. § 285.

Practice Tip:

Zimmer has been sued for patent infringement before. One patent lawsuit, Stryker v. Zimmer, is illustrative of the potential cost of willful infringement. In that litigation, the jury found that Zimmer had committed patent infringement and awarded $70 million in damages. The jury also held that Zimmer’s infringement had been willful. Plaintiff Stryker asked the court for, inter alia, attorneys’ fees and enhanced damages.

Under 35 U.S.C. § 285, if the prevailing party establishes by clear and convincing evidence that the case is “exceptional,” the court may exercise its discretion to award attorneys’ fees. The court in this case cited various factors that could be used in determining whether a case was exceptional, for example: “willful infringement, fraud or inequitable conduct in procuring the patent, misconduct during litigation, vexatious or unjustified litigation, [or] conduct that violates Federal Rule of Civil Procedure 11.” The court awarded Stryker’s attorneys’ fees, holding that that the jury’s finding of willful infringement weighed heavily in favor of such an award (“indeed, when a trial court denies attorney fees in spite of a finding of willful infringement, the court must explain why the case is not ‘exceptional’ within the meaning of the statute.”)

The court also evaluated whether an award of enhanced damages was warranted. Under 35 U.S.C. § 284, “the court may increase the damages up to three times the amount found or assessed” at trial. For this determination, the court referred to Read Corp. v. Portec, Inc. In Read, the Federal Circuit held that the “paramount determination in deciding to grant enhancement and the amount thereof is the egregiousness of the defendant’s conduct based on all the facts and circumstances.” In evaluating the egregiousness of the defendant’s conduct, courts typically rely on the nine Read factors, which are:

1. whether the infringer deliberately copied the patentee’s ideas or design;
2. whether the infringer investigated the scope of the patent and formed a good faith belief that it was invalid or not infringed;
3. the infringer’s conduct during litigation;
4. the infringer’s size and financial condition;
5. closeness of the case;
6. duration of the infringing conduct;
7. remedial actions, if any, taken by the infringer;
8. the infringer’s motivation for harm; and
9. whether the infringer attempted to conceal its misconduct.

The court found that all nine Read factors favored substantial enhancement and trebled the jury’s award of damages. The court stated, “Zimmer chose a high-risk/high-reward strategy of competing immediately and aggressively in the pulsed lavage market and opted to worry about the potential legal consequences later.” In total, Zimmer was ordered to pay Stryker over $228 million.

July 9, 2014

Indiana Copyright Litigation: Dallas Buyers Club, LLC Sues 24 Doe Defendants for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – A copyright attorney for Dallas Buyers Club, LLC of The Woodlands, Texas sued in the Southern District of Indiana alleging that 24 Doe defendants infringed the copyright of the motion picture “Dallas Buyers Club,” which has been registered with the U.S. Copyright Office.

The movie in question, Dallas Buyers Club, stars Matthew McConaughey as an AIDS patient who smuggled unapproved AIDS-treatment drugs into the United States during the 1980s for his own use and to distribute to others afflicted with AIDS. The movie was nominated for six Academy Awards and won three. Matthew McConaughey and Jared Leto also won Oscars for Best Actor and Best Supporting Actor, respectively, for their performances in the movie.

In this Indiana copyright infringement lawsuit, filed by a copyright lawyer for Dallas Buyers Club, LLC, plaintiff asserts that the copyrighted movie was infringed by 24 as-yet unnamed individuals, who were sued as “Doe” defendants. It alleges that this copyright infringement took place using the “BitTorrent protocol,” which is different from the standard peer-to-peer protocol. Specifically, the BitTorrent protocol enables numerous computers, even those with low bandwidth, to exchange pieces of a computer file among themselves. Each computer that has downloaded a particular piece of a file then becomes a source from which other computers may then download that piece of the file. As a result, the entirety of a computer file may be disseminated across the Internet quickly without having to rely on a central source from which to download.

Plaintiff contends that the 24 defendants acted as part of a “collective enterprise” to infringe its work and that the acts constituting the infringement were “willful, intentional, and in disregard of and with indifference” to plaintiff’s intellectual property rights.

The court is asked to enter judgment for the following monetary and injunctive relief:

• for entry of permanent injunctions providing that each defendant shall be enjoined from directly or indirectly infringing plaintiff’s rights in the movie;
• for judgment that defendants have: a) willfully infringed plaintiff’s rights in its federally registered copyright pursuant to 17 U.S.C. §501; and b) otherwise injured the business reputation and business of plaintiff;
• for actual or statutory damages pursuant to 17 U.S.C. §504 in an amount to be determined at trial;
• for an Order of Impoundment under 17 U.S.C. §§503 and 509(a) impounding all infringing copies of the movie that are in defendants’ possession or under their control; and
• for attorneys’ fees, litigation expenses, including fees and costs of expert witnesses, and other costs of this action.

Practice Tip: Defendants who fail to appear run a significant risk of having a default judgment entered against them. There is a significant disparity in the dollar amount awarded in default judgments against defendants in copyright infringement cases involving BitTorrent. In two separate cases, Judge William T. Lawrence ordered defendants who failed to appear to pay $20,000 for the copyright infringement that was deemed to have been admitted by the defendants’ failure to defend against the allegations. See here and here. However, in a similar case, Judge Jane Magnus-Stinson ordered an entry of default judgment against a defendant for $151,425, the full amount requested.

Overhauser Law Offices, the publisher of this website, has represented several hundred persons and businesses regarding copyright infringement and similar matters.