New Litigation

October 17, 2013

Another Fourteen Anonymous Defendants Accused of Infringing Robert Redford Movie

Indianapolis, Indiana — Copyright lawyer Paul Nicoletti has sued fourteen additional Doe Defendants, all allegedly located in Indiana, in the Southern District of Indiana on behalf of TCYK, LLC of Los Angeles, California (“TCYK”) alleging infringement of the copyrighted movie “The Company You Keep,” which has been registered by the U.S. Copyright Office. The movie stars Robert Redford, Susan Sarandon, Shia LaBeouf, Anna Kendrick, Julie Christie and Nick Nolte. It was directed by Robert Redford.

TCYK alleges that the infringing transfer and copying of this movie, which was released on DVD on August 13, 2013, was accomplished by Defendants using BitTorrent, a peer-to-peer file-sharing protocol. Specifically, the Doe Defendants are accused of deliberately participating in a peer-to-peer “swarm,” and illegally reproducing and/or distributing portions of the movie in digital form with other Defendants. TCYK indicates in its complaint that it used geolocation technology to determine that the Doe Defendants were located in Indiana.

The complaint lists a single count: copyright infringement. The intellectual property attorney for Plaintiff TCYK asks the court for permanent injunctions prohibiting infringement of Plaintiff’s movie by all Doe Defendants; the destruction of all copies of infringing works in any Defendant’s control; judgment that Defendants have willfully infringed Plaintiff’s copyrighted work; judgment that Defendants have otherwise injured the business reputation and business of Plaintiffs; for actual damages or statutory damages; and for attorneys’ fees and litigation expenses.

Practice Tip:

Under 17 U.S.C. § 504(c)(1), a copyright owner may elect actual or statutory damages. Statutory damages range from a sum of not less than $750 to not more than $30,000 per infringed work. The determination of the exact amount is left to the discretion of the court.

If a defendant fails to appear, the court will take as true all of the plaintiff’s well-pled allegations. That typically leads to a default judgment against the defendant. There is a significant disparity in the dollar amounts awarded in default judgments against defendants in copyright infringement cases involving BitTorrent. In two separate cases, Judge William T. Lawrence recently ordered two defendants who failed to appear to pay $20,000 in statutory damages for 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. Judge Sarah Evans Barker has issued several default judgments for $36,000 plus attorneys’ fees against BitTorrent defendants who failed to appear.

October 14, 2013

J & J Sports Sues Las Margaritas Restaurant and Owner Scheker for Unauthorized Interception and Broadcast of “Star Power” Fight

By Overhauser Law Offices, LLC

Indianapolis, Indiana – J & J Sports Productions, Inc. of Campbell, California (“J & J Sports”) sued in the Southern District of Indiana alleging that Luis A. Scheker (“Scheker”) and Margaritas US31 Mexican Restaurant, Inc. of Indianapolis, Indiana (“Las Margaritas”) intercepted and broadcast “Star Power”: Floyd Mayweather, Jr. v. Victor Ortiz without authorization.

J & J Sports states that it is the exclusive domestic commercial distributor of Star Power: Floyd Mayweather, Jr. v. Victor Ortiz (the “program”). It has sued Las Margaritas, as well as Scheker as an individual, under the Communications Act of 1934 and The Cable & Television Consumer Protection and Competition Act of 1992.

Specifically, Defendants have been accused of violating 47 U.S.C. § 605 and 47 U.S.C. § 553 by displaying the program on September 17, 2011 without a commercial license. Regarding the claim under 47 U.S.C. § 605, the complaint alleges that with “full knowledge that the Program was not to be intercepted, received, published, divulged, displayed, and/or exhibited by commercial entities unauthorized to do so, each and every one of the above named Defendants . . . did unlawfully intercept, receive, publish, divulge, display, and/or exhibit the Program” for the purpose of commercial advantage and/or private financial gain.

A count of conversion is also included which asserts that Defendants’ acts were “willful, malicious, egregious, and intentionally designed to harm Plaintiff J & J Sports” and that, as a result of being deprived of their commercial license fee, J & J Sports suffered “severe economic distress and great financial loss.”

In addition to naming the separate legal entity, Margaritas US31 Mexican Restaurant, Inc., which apparently owns the restaurant, Plaintiff has also sued Mr. Scheker as an individual, alleging that he had the right and ability to supervise the activities of Las Margaritas. J & J Sports asserts that those activities included the unlawful interception of Plaintiff’s program.

J & J Sports also contends that Mr. Scheker specifically directed the employees of Las Margaritas to unlawfully intercept and broadcast Plaintiff’s program at Las Margaritas or, if he did not, that the actions of the employees of Las Margaritas are directly imputable to Mr. Scheker by virtue of his purported responsibility for the activities of Las Margaritas. Mr. Scheker has also been named individually as a result of J & J Sports’ contention that he is a managing member of Margaritas US31 Mexican Restaurant, Inc. Further, J & J asserts, Mr. Scheker, as an individual specifically identified on the liquor license for Las Margaritas, had an obvious and direct financial interest in the activities of Las Margaritas.

In the complaint, the intellectual property attorney for J & J Sports listed the following counts and requests for redress:

•Count I: Violation of Title 47 U.S.C. Section 605. For this count, J & J Sports requests (a) statutory damages for each willful violation in an amount to $100,000.00 pursuant to Title 47 U.S.C. 605(e)(3)(C)(ii), and (b) the recovery of full costs, including reasonable attorneys’ fees, pursuant to Title 47 U.S.C. Section 605(e)(3)(B)(iii).

•Count II: Violation of Title 47 U.S.C. Section 553. For this count, J & J Sports asks the court for (a) statutory damages for each violation in an amount to $10,000.00 pursuant to Title 47 U.S.C. § 553(c)(3)(A)(ii); (b) statutory damages for each willful violation in an amount to $50,000.00 pursuant to Title 47 U.S.C. § 553(c)(3)(B); (c) the recovery of full costs pursuant to Title 47 U.S.C. Section 553 (c)(2)(C); and (d) and in the discretion of the court, reasonable attorneys’ fees, pursuant to Title 47 U.S.C. Section 553 (c)(2)(C).

•Count III: Conversion. For this count, the court is requested to order both compensatory and punitive damages from Defendants as the result of the Defendants’ allegedly egregious conduct, theft, and conversion of the program and deliberate injury to the Plaintiff.

Practice Tip #1: While on the surface this appears to be a copyright case, an allegation of interception under 47 U.S.C. § 605 is a different cause of action from copyright infringement. However, a suit alleging interception does not preclude an additional lawsuit alleging different causes of action. For example, the copyright holder can also sue for copyright infringement, which could increase damages by as much as $150,000.

Practice Tip #2: As part of its complaint, J & J Sports claims that the Defendants’ actions have subjected them to “severe economic distress and great financial loss.” It will be interesting to see what evidence it offers as proof that, as a result of allegedly not receiving its full commercial fee for the programming purportedly displayed by the Defendants – a circumstance presumably known to few other than the Defendants themselves – it has suffered severe economic distress and great financial loss.

October 10, 2013

Sam’s Club Sued by Escalade Sports for Infringing Patented Table Tennis Ball Storage Apron

By Overhauser Law Offices, LLC

Evansville, Indiana – Indian Industries, Inc. d/b/a Escalade Sports of Evansville, Indiana (“Escalade Sports”) has sued Sam’s East, Inc. d/b/a Sam’s Club of Bentonville, Arkansas (“Sam’s Club”) in the Southern District of Indiana alleging infringement of its patented TABLE TENNIS BALL STORAGE APRON, Patent No. 8,414,431 (the “‘431 patent”), which has been issued by the U.S. Patent Office.

Escalade Sports began in 1927 as Indian Archery And Toy Co. It is a global company which offers goods related to basketball, table tennis, archery and other sports. Escalade Sports and its predecessors have been in the business of selling table-tennis tables and accessories since 1973.

Sam’s Club, a chain of membership-only retail clubs, was founded in 1983. A subsidiary of Wal-Mart Stores, Inc., it was named after Walmart founder Sam Walton. Sam’s Club has more than 47 million members and operates approximately 600 retail warehouse clubs in the United States, along with locations in Brazil, China and Mexico. Sam’s Club operates 16 warehouse clubs in Indiana.

On April 9, 2013, the ‘431 patent was issued for an invention titled “Table Tennis Ball Storage Apron.” Prior to its issuance, the ‘431 patent was purportedly assigned to Escalade Sports. At issue in this suit is a feature of a table-tennis table which Escalade Sports claims is protected under the ‘431 patent.

Escalade Sports markets its table-tennis tables and accessories under a number of marks, including the Stiga® mark, which is used under a license from Stiga Sports AB. In the fall of 2013, Escalade Sports launched a new line of Stiga® table-tennis tables which included ball storage racks mounted along the width of the ends of the table, adjacent the player. These tables include the Stiga® Master Series ST3100 and ST4100 tables and the Stiga® STS185, STS285, STS385, STS420 and STS520 tables (the “Stiga® Storage Rack Tables”). According to the complaint, the ‘431 patent covers Escalade Sports’ Stiga® Storage Rack Tables.

Escalade Sports asserts that, sometime in 2013, Sam’s Club began selling and offering to sell the “ESPN 2 Piece Table Tennis” product. It asserts that this product infringes claims 1 through 15 of the ‘431 patent.

Patent attorneys for Escalade Sports filed this patent infringement lawsuit asserting a single claim: the infringement of the ‘431 patent. Escalade Sports contends that this infringement includes, in part, the sale and offer for sale of the ESPN 2 Piece Table Tennis product.

Escalade Sports asserts that it has been damaged by Sam’s Club’s alleged infringement and that it will suffer irreparable injury unless Sam’s Club is permanently enjoined by the court. Escalade Sports seeks: a judgment of infringement of the ‘431 patent by Sam’s Club; injunctive relief restraining Sam’s Club and its agents from further acts of infringement; an order that any devices subject to control by Sam’s Club which infringe upon any claim of the ‘431 patent be delivered up and destroyed; an award to Escalade Sports of damages, costs, attorney’s fees and/or expenses associated with this action; an award of Sam’s Club’s wrongful profits associated with any infringement of Escalade Sports’ intellectual property rights; to have any award of damages be increased to the maximum amount permitted under 35 U.S.C. §284; and an order declaring that this is an exceptional case under 35 U.S.C. § 285, upon a finding that Sam’s Club knowingly and willfully infringed.

Practice Tip:

The “willfulness” of the alleged infringement is an important issue in patent litigation because willful infringement may result in a tripling of the damages awarded to the patent holder. Willfulness consists of two elements: (1) an objective element that is often, but not always, a question of law, and (2) a subjective element that is inherently a question of fact, to be decided by the jury.

Under the first prong, if an “accused infringer’s position is susceptible to a reasonable conclusion of no infringement,” the infringer’s conduct cannot be objectively unreasonable. Conversely, an action is objectively unreasonable if the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent.

When considering the second prong – the element of subjective willfulness – fact-finders should consider: (1) whether the infringer copied the patentee’s commercial products; (2) whether the infringer presented evidence that it obtained legal opinions of patent counsel to justify its infringing actions; (3) whether the infringer attempted to avoid infringement by designing around the patents; and (4) whether the infringer acted in accordance with the standards of commerce.

October 7, 2013

CleanTech’s Multidistrict Litigation Adds Southwest Iowa Renewable Energy as a Defendant

By Overhauser Law Offices, LLC

Indianapolis, Indiana — Patent attorneys for GS CleanTech Corporation of Alpharetta, Georgia have filed a patent infringement lawsuit in the Southern District of Iowa alleging that Southwest Iowa Renewable Energy, LLC of Council Bluffs, Iowa infringed Patent Nos. 7,601,858, METHOD OF PROCESSING ETHANOL BYPRODUCTS AND RELATED SUBSYSTEMS; 8,008,516, METHOD OF PROCESSING ETHANOL BYPRODUCTS AND RELATED SUBSYSTEMS; 8,008,517, METHOD OF RECOVERING OIL FROM THIN STILLAGE and 8,283,484, METHOD OF PROCESSING ETHANOL BYPRODUCTS AND RELATED SUBSYSTEMS, which have been issued by the U.S. Patent Office. The case was transferred to the Southern District of Indiana as part of Multidistrict Litigation No. 2181.

This Multidistrict Litigation (“MDL”) began with an assertion of patent infringement by CleanTech of Patent No. 7,601,858 (the “‘858 patent”), which was issued on October 13, 2009. CleanTech sued numerous Defendants alleging infringement of that patent shortly after its issuance. The Defendants accused of patent infringement in prior litigation include: Big River Resources Galva, LLC; Big River Resources West Burlington, LLC; Cardinal Ethanol, LLC; ICM, Inc.; LincolnLand Agri-Energy, LLC; David J. Vander Griend; Iroquois Bio-Energy Co., LLC; Al-Corn Clean Fuel; Blue Flint Ethanol, LLC; ACE Ethanol, LLC; Lincolnway Energy, LLC; United Wisconsin Grain Producers, LLC; Bushmills Ethanol, Inc.; Chippewa Valley Ethanol Co.; Heartland Corn Products and Adkins Energy, LLC.

Since September 29, 2011, when the court overseeing the MDL issued its order on claim construction with respect to the disputed claims of the ‘858 patent, patentee CleanTech has further asserted infringement by some of the allegedly infringing Defendants of three additional patents in the ‘858 patent family: U.S. Patent Nos. 8,008,516 (the “‘516 patent”), 8,008,517 (the “‘517 patent”) and 8,283,484 (the “‘484 patent”) (the ‘858, ‘516, ‘517 and ‘484 patents are, collectively, the “‘858 patent family”).

The patents in the ‘858 family share an identical specification and have substantially similar claim terms. CleanTech claims that the method claimed increases the efficiency and economy of recovering corn oil. Southwest Iowa Renewable Energy is charged with infringing the ‘858 patent, along with the related ‘516, ‘517, and ‘484 patents (collectively “the patents-in-suit”).

CleanTech’s patented methods recover corn oil by evaporating, concentrating and mechanically separating thin stillage (“stillage”), a byproduct of ethanol produced from corn, into two components: corn oil and a post-recovery syrup (“syrup”) with most of its corn oil removed.

In one embodiment, the patented method comprises initially processing the whole stillage by mechanically separating (such as by using a centrifugal decanter) the whole stillage into distillers wet grains and thin stillage, and then introducing the thin stillage into an evaporator to form a concentrated syrup byproduct. Prior to recombining the then-concentrated syrup with the distillers wet grains, the syrup is introduced into a second mechanical separator, such as a second centrifuge, which is different from the centrifuge that mechanically separated the whole stillage into distillers wet grains and thin stillage. This second centrifuge separates corn oil from the syrup thereby allowing for the recovery of usable corn oil. The syrup that exits the centrifuge is then recombined with the distillers wet grain and dried in a dryer. The corn oil that is extracted from the syrup can be used for various purposes such as feedstock for producing biodiesel.

Prior lawsuits included GreenShift Corp. as a Plaintiff. In this current lawsuit, initiated in Southern District of Iowa, GreenShift’s subsidiary GS CleanTech Corp. is the sole Plaintiff. Patent attorneys for CleanTech assert the following in the complaint:

· Count I: Infringement of U.S. Patent No. 7,601,858

· Count II: Infringement of U.S. Patent No. 8,008,516

· Count III: Infringement of U.S. Patent No. 8,008,517

· Count IV: Infringement of U.S. Patent No. 8,283,484

CleanTech asks the court for a permanent injunction prohibiting further infringement of the patents-in-suit; an award of damages adequate to compensate CleanTech for the infringement that has occurred, but in no event less than a reasonable royalty for the use made of the inventions of the patents-in-suit as provided in 35 U.S.C. § 284, together with prejudgment interest from the date the infringement began; and an award to CleanTech of all remedies available under 35 U.S.C. §§ 284, 285 and 154(d).

Practice Tip: The United States Judicial Panel on Multidistrict Litigation, (http://www.jpml.uscourts.gov/) also known as the “MDL Panel” or, simply the “Panel,” consists of seven sitting federal judges, who are appointed to serve on the Panel by the Chief Justice of the United States. The job of the Panel is to (1) determine whether civil actions pending in different federal districts involve one or more common questions of fact such that the actions should be transferred to one federal district for coordinated or consolidated pretrial proceedings; and (2) select the judge or judges and court assigned to conduct such proceedings.

October 4, 2013

Malibu Media Files Seven New Copyright Infringement Lawsuits Against John Doe Defendants

By Overhauser Law Offices, LLC

Indianapolis, Indiana — An intellectual property attorney has filed seven new copyright suits in the Southern District of Indiana on behalf of Malibu Media, LLC of Los Angeles, California alleging that seven John Doe defendants infringed Malibu Media’s copyrighted works.

Copyright lawyer Paul Nicoletti is again in federal court on behalf of Malibu Media asserting infringement of the company’s intellectual property. In this current round, Malibu Media’s latest incursion into the federal court system, seven new and nearly identical lawsuits have been filed against anonymous John Doe defendants, each claiming copyright infringement. The Defendants allegedly used the BitTorrent file-sharing protocol to illegally download, copy and distribute elements of various works of Malibu Media’s copyrighted material.

Malibu Media seeks a permanent injunction barring the Defendants from engaging in infringing activities; an order by the court to remove infringing materials from all computers of each Defendant; an award of statutory damages of $150,000 per infringed work and reasonable attorneys’ fees and costs.

Practice Tip: 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 recently ordered two 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.

September 25, 2013

Alcon Sues Wockhardt for Patent Infringement of Pataday™

By Overhauser Law Offices, LLC

Indianapolis, Indiana — Alcon Research, Ltd. of Fort Worth, Texas, and Alcon Pharmaceuticals Ltd. of Fribourg, Switzerland (collectively, “Alcon”) have filed a patent infringement lawsuit in the Southern District of Indiana alleging that Wockhardt Limited of Mumbai, Maharashta, India; Wockhardt Bio AG of Zug, Switzerland; Wockhardt Bio Ltd. of Zug, Switzerland; and Wockhardt USA, LLC of Parsippany, New Jersey (collectively, “Wockhardt”) infringed Patent Nos. 6,995,186 (the “‘186 patent”) and 7,402,609 (the “‘609 patent”), both for Olopatadine Formulations For Topical Administration, which have been issued by the U.S. Patent Office.

According to the complaint, the Wockhardt entities are engaged in the generic-pharmaceutical business. Alcon asserts that one or more of the entities manufacture, import, market, offer to sell and/or sell generic drugs throughout the United States.

Wockhardt filed an Abbreviated New Drug Application (“ANDA”) with the U.S. Food and Drug Administration (“FDA”) seeking approval to manufacture and sell a generic version of Pataday™ ophthalmic solution, a drug product containing olopatadine hydrochloride. The two patents-in-suit, which Alcon claims to own, are asserted to cover Pataday™. Alcon contends that Wockhardt’s submission of this ANDA to obtain approval to engage in the commercial manufacture, use, offer for sale, sale and/or importation of Wockhardt’s ANDA product before the expiration of the patents-in-suit is an act of infringement under 35 U.S.C. § 271(e)(2)(A).

Plaintiff Alcon states that it believes that the Wockhardt entities are part of a vertically integrated and unified organization and that they will act in concert to introduce the generic version of Pataday™ to the United States market prior to the expiration of Alcon’s patents.

In the complaint, intellectual property attorneys for Alcon list the following claims:

· Count I: Infringement of the ‘186 Patent

· Count II: Infringement of the ‘609 Patent

· Count III: Declaratory Judgment of Infringement of the ‘186 Patent

· Count IV: Declaratory Judgment of Infringement of the ‘609 Patent

Alcon asks for a judgment that the ‘186 and ‘609 patents are valid and enforceable and have been infringed; a judgment providing that the effective date of any FDA approval of commercial manufacture, use or sale of Wockhardt’s ANDA product be not earlier than the latest of the expiration date of the patents-in-suit, inclusive of any extension(s) and additional periods of exclusivity; preliminary and permanent injunctions protecting products covered by the ‘186 patent prior to its expiration; preliminary and permanent injunctions protecting products covered by the ‘609 patent prior to its expiration; a judgment declaring that the commercial manufacture, use, sale, offer for sale or importation of Wockhardt’s ANDA product, or any other drug product covered by the ‘186 patent, will infringe, induce the infringement of, and contribute to the infringement by others of, that patent; a judgment declaring that the commercial manufacture, use, sale, offer for sale or importation of Wockhardt’s ANDA product, or any other drug product covered by the ‘609 patent, will infringe, induce the infringement of, and contribute to the infringement by others of, that patent; a declaration that this is an exceptional case and an award of attorneys’ fees; and costs and expenses.

Practice Tip: The FDA’s ANDA process for generic drugs has been abbreviated such that, in general, the generic drug seeking approval does not require pre-clinical (animal and in vitro) testing. Instead, the process focuses on establishing that the product is bioequivalent to the “innovator” drug that has already undergone the full approval process. The statute that created the abbreviated process, however, had also created some interesting issues with respect to the period of exclusivity. For an interesting look at some of these issues, see here.

September 23, 2013

J & J Sports Sues Los Chilaquiles Restaurant and Owner Carranza for Unauthorized Interception and Broadcast of “Star Power” Fight

By Overhauser Law Offices, LLC

Indianapolis, Indiana — J & J Sports Productions, Inc. of Campbell, California (“J & J Sports”) sued in the Southern District of Indiana alleging that Loyda A. Carranza and Carranza, Inc. of Indianapolis, Indiana (collectively, “Carranza”), both doing business as Los Chilaquiles Restaurant, intercepted and broadcast “Star Power: Floyd Mayweather, Jr. v. Victor Ortiz” without authorization.

J & J Sports states that it is the exclusive domestic commercial distributor of Star Power: Floyd Mayweather, Jr. v. Victor Ortiz (the “program”). It has sued Carranza, Inc. and Loyda A. Carranza as an individual under the Communications Act of 1934 and The Cable & Television Consumer Protection and Competition Act of 1992.

Specifically, Defendants have been accused of violating 47 U.S.C. § 605 and 47 U.S.C. § 553 by displaying the program on September 17, 2011 without a commercial license. Regarding the claim under 47 U.S.C. § 605, the complaint alleges that with “full knowledge that the Program was not to be intercepted, received, published, divulged, displayed, and/or exhibited by commercial entities unauthorized to do so, each and every one of the above named Defendants . . . did unlawfully intercept, receive, publish, divulge, display, and/or exhibit the Program” for the purpose of commercial advantage and/or private financial gain.

A count of conversion is also included which asserts that Defendants’ acts were “willful, malicious, egregious, and intentionally designed to harm Plaintiff J & J Sports” and that, as a result of being deprived of their commercial license fee, J & J Sports suffered “severe economic distress and great financial loss.”

In addition to naming the separate legal entity, Carranza, Inc., which apparently owns the restaurant, Plaintiff has also sued Defendant Loyda Carranza as an individual, alleging that she had the right and ability to supervise the activities of Los Chilaquiles. J & J Sports asserts that those activities included the unlawful interception of Plaintiff’s program. J & J Sports also contends that Ms. Carranza specifically directed the employees of Los Chilaquiles to unlawfully intercept and broadcast Plaintiff’s program at Los Chilaquiles or, if she did not, that the actions of the employees of Los Chilaquiles are directly imputable to Ms. Carranza by virtue of her purported responsibility for the activities of Los Chilaquiles. Ms. Carranza has also been named individually as a result of J & J Sports’ contention that she is a managing member of Carranza, Inc. and, further, as an individual specifically identified on the liquor license for Los Chilaquiles, had an obvious and direct financial interest in the activities of Los Chilaquiles.

In the complaint, the intellectual property attorney for J & J Sports listed the following counts and requests for redress:

Count I: Violation of Title 47 U.S.C. Section 605. For this count, J & J Sports requests (a) statutory damages for each willful violation in an amount to $100,000.00 pursuant to Title 47 U.S.C. 605(e)(3)(C)(ii), and (b) the recovery of full costs, including reasonable attorneys’ fees, pursuant to Title 47 U.S.C. Section 605(e)(3)(B)(iii).
Count II: Violation of Title 47 U.S.C. Section 553. For this count, J & J Sports asks the court for (a) statutory damages for each violation in an amount to $10,000.00 pursuant to Title 47 U.S.C. § 553(c)(3)(A)(ii); (b) statutory damages for each willful violation in an amount to $50,000.00 pursuant to Title 47 U.S.C. § 553(c)(3)(B); (c) the recovery of full costs pursuant to Title 47 U.S.C. Section 553 (c)(2)(C); and (d) and in the discretion of the court, reasonable attorneys’ fees, pursuant to Title 47 U.S.C. Section 553 (c)(2)(C).
Count III: Conversion. For this count, the court is requested to order both compensatory and punitive damages from Defendants as the result of the Defendants’ allegedly egregious conduct, theft, and conversion of the program and deliberate injury to the Plaintiff.

Practice Tip #1: The interception claim has a two-year statute of limitations, which explains why this complaint was filed on September 13, 2013, almost exactly two years after the broadcast of the program. J & J Sports initiated 708 lawsuits in 2011 alone. It appears that many of them were also filed near the eve of the two-year anniversary of the broadcast of the program at issue in each individual lawsuit.

Practice Tip #2: While on the surface this appears to be a copyright case, an allegation of interception under 47 U.S.C. § 605 is a different cause of action from copyright infringement. However, a suit alleging interception does not preclude an additional lawsuit alleging different causes of action. For example, the copyright holder can also sue for copyright infringement, which could increase damages by as much as $150,000.

September 20, 2013

CSP Sues Süd-Chemie and Airsec Again for Patent Infringement, Adds Defendant Clariant Produkte Deutschland

By Overhauser Law Offices, LLC

New Albany, Indiana — Patent lawyers for CSP Technologies, Inc. of Auburn, Alabama have sued Clariant Produkte Deutschland GmbH of Frankfurt, Germany, Süd-Chemie, Inc. of Louisville, Kentucky and Airsec S.A.S. of Choisy-le-Roi, France (collectively, “Defendants”) for patent infringement in the Southern District of Indiana. At issue is RESEALABLE MOISTURE TIGHT CONTAINER ASSEMBLY FOR STRIPS AND THE LIKE HAVING A LIP SNAP SEAL, Patent No. 8,528,778 (the “‘778” patent), which has been issued by the U.S. Patent Office.

CSP develops, manufactures, distributes and sells product packaging that enhances the stability and shelf life of package contents. It has been granted patents directed towards desiccant-entrained polymers and other sealing technology incorporated into product packaging. Such technologies are designed to create a moisture-free environment for a packaged product.

CSP has sued Defendants Clariant Produkte Deutschland, Süd-Chemie and Airsec, which compete with CSP in the field of product packaging, for patent infringement. This is at least the third patent infringement lawsuit involving CSP and some or all of the Defendants. The first case was filed in 2003 in Indiana. In that case, CSP asserted infringement of U.S. Patent No. 5,911,937 and U.S. Patent No. 6,214,255, both titled DESICCANT ENTRAINED POLYMER. In a 108-page opinion, the judge held that CSP’s two patents were valid and that Süd-Chemie had infringed them. She ordered the parties into mediation where they eventually settled for $8 million. The court entered a consent order, retaining jurisdiction and enjoining Defendants in that case from infringing the asserted patents.

Following the resolution of that lawsuit, Defendants allegedly began or resumed selling infringing products. In response to Defendants’ sales, CSP filed an additional lawsuit in 2011, again in Indiana, alleging infringement of Patent No. 7,537,137. As is the ‘778 patent, that patent was titled RESEALABLE MOISTURE TIGHT CONTAINER ASSEMBLY FOR STRIPS AND THE LIKE HAVING A LIP SNAP SEAL.

This latest lawsuit was filed on September 10, 2013, the same day as the issuance of the ‘778 patent. It alleges willful infringement of CSP’s patented technology relating to packaging for, among other things, the diagnostic-test-strip market.

Patent attorneys for CSP list a single count of patent infringement in the complaint. It is asserted that Defendants’ conduct is willful and deliberate. CSP asks the court for preliminary and permanent injunctions barring infringement; for an accounting of damages, including both pre- and post-judgment interest and costs; for a determination that Defendants willfully and deliberately infringed the ‘778 patent, and that damages be trebled as a consequence; and that the case be declared exceptional and, pursuant to such a finding, that CSP be awarded its reasonable attorneys’ fees.

Practice Tip: The “willfulness” of the alleged infringement is an important issue in patent litigation because willful infringement results in a tripling of the damages awarded to the patent holder. To establish willfulness, the patent holder must prove that the infringer acted with at least “objective recklessness.”

September 19, 2013

TCYK Sues Nine John Doe Defendants for Copyright Infringement of “The Company You Keep”

By Overhauser Law Offices, LLC

Hammond, Indiana — Copyright lawyers for TCYK LLC of Los Angeles, CA sued for copyright infringement in the Northern District of Indiana alleging that John Does 1-9, all allegedly located in Indiana, infringed the copyrighted work “The Company You Keep,” which has been registered by the U.S. Copyright Office.

The movie stars Robert Redford, Susan Sarandon, Shia LaBeouf, Anna Kendrick, Julie Christie and Nick Nolte. It was directed by Robert Redford. TCYK alleges that the infringing transfer and copying of this movie, which was released on DVD on August 13, 2013, was accomplished by Defendants using BitTorrent, a peer-to-peer file-sharing protocol. Specifically, the Doe Defendants are accused of deliberately participating in a peer-to-peer “swarm,” and illegally reproducing and/or distributing portions of the movie in digital form with other Defendants. TCYK indicates in its complaint that it used geolocation technology to determine that the Doe Defendants were located in Indiana.

The complaint lists a single count of copyright infringement. Copyright attorneys for Plaintiff ask the court for permanent injunctions prohibiting infringement of Plaintiff’s movie; the destruction of all copies of infringing works in any Defendant’s control; judgment that Defendants have willfully infringed Plaintiff’s copyrighted work; judgment that Defendants have otherwise injured the business reputation and business of Plaintiffs; for actual damages or statutory damages; and for attorneys’ fees and litigation expenses.

Practice Tip #1: The impact of distributing large files on servers and networks can be reduced by using BitTorrent. Instead of downloading a file from a single server, the BitTorrent protocol allows users to join a “swarm” of hosts, each of which downloads and uploads data from the others simultaneously.

Practice Tip #2: TCYK has filed dozens of lawsuits in federal courts claiming copyright infringement of “The Company You Keep”, including courts in Indiana, Florida, Illinois, Minnesota, Ohio and Wisconsin. It is estimated that thousands of defendants have been sued by TCYK on the allegation that they have infringed this copyrighted work. TCYK is also featured in an interesting article on the growing practice of using the court system to monetize infringement committed by individual infringers.

Practice Tip #3: It is curious that apparently neither the filing fee nor form AO 121 (Report on the Filing or Determination of an Action or Appeal Regarding a Copyright) was submitted to the court in conjunction with the filing of this complaint.

September 18, 2013

Little Sioux Added as a Defendant in CleanTech’s Multidistrict Litigation

By Overhauser Law Offices, LLC

Indianapolis, Indiana — Patent lawyers for GS CleanTech Corp. of Alpharetta, Georgia (“CleanTech”) sued in the Northern District of Iowa alleging that Little Sioux Corn Processors, LLLP of Marcus, Iowa (“Little Sioux”) had infringed METHOD OF PROCESSING ETHANOL BYPRODUCTS AND RELATED SUBSYSTEMS, Patent No. 7,601,858, and its family of related patents, which have been issued by the U.S. Patent Office. The case was transferred to the Southern District of Indiana as part of Multidistrict Litigation No. 2181.

This lawsuit between CleanTech and Little Sioux is one of the most recent added to the Multidistrict Litigation currently underway in the Southern District of Indiana. It is being adjudicated by Judge Larry J. McKinney and Magistrate Judge Debra McVickers Lynch. At issue is CleanTech’s family of patents that claims a process that extracts corn oil from the byproducts created during the manufacture of ethyl alcohol.

Recently, attention has been given to the production of ethyl alcohol, also known as “ethanol,” for use as an alternative fuel. Ethanol burns cleaner than fossil fuels and can be produced using renewable domestic resources such as corn.

A popular method of producing ethanol is known as “dry milling,” whereby the starch in corn is used to produce ethanol through fermentation. In a typical dry milling method, the process starts by grinding each kernel of corn into meal, which is then slurried with water into mash. Enzymes are added to the mash to convert the starch to sugar. Yeast is then added to convert the sugar to ethanol and carbon dioxide. After this fermentation, the mixture is transferred to distillation columns where the ethanol is evaporated and removed, leaving an intermediate product called “whole stillage.” The whole stillage contains corn oil and the parts of each kernel of corn that were not fermented into ethanol. Despite that it still contains corn oil, the whole stillage has traditionally been treated as a byproduct of the dry-milling fermentation process and used primarily to supplement animal feed.

The ‘858 family of patents, which also includes U.S. Patent Nos. 8,008,516 (the “‘516 patent”), 8,008,517 (the “‘517 patent”) and 8,283,484 (the “‘484 patent”), relates to extracting corn oil from whole stillage. CleanTech claims that the method increases the efficiency and economy of recovering corn oil. Little Sioux is charged with infringing the ‘858 patent, along with the related ‘516, ‘517, and ‘484 patents (collectively “the patents-in-suit”)

This current suit seems to have its roots in a lawsuit filed by ICM, Inc. (hereinafter “ICM”), a Kansas corporation, which sued CleanTech in 2009 for a declaratory judgment of non-infringement and invalidity of the ‘858 patent. CleanTech asserts that ICM admitted in its complaint that that it “designs and builds ethanol production plants for customers and promotes, sells and installs centrifuge equipment to such customers for recovering oil from corn byproducts.” The complaint by ICM stated that it had filed the lawsuit to ask the court to determine whether ICM had the “right to sell and/or use equipment to practice corn oil recovery methods that are in part the subject of the claims of the ‘858 Patent.”

CleanTech asserts that ICM sold products and equipment to Little Sioux that infringe one or more of the claims of the patents-in-suit. Little Sioux is accused of using these products and equipment to infringe one or more of the claims of the patents-in-suit. In the complaint, patent attorneys for CleanTech assert:

· Count I: Infringement of U.S. Patent No. 7,601,858

· Count II: Infringement of U.S. Patent No. 8,008,516

· Count III: Infringement of U.S. Patent No. 8,008,517

· Count IV: Infringement of U.S. Patent No. 8,283,484

CleanTech asks the court for preliminary and permanent injunctions prohibiting further infringement of the patents-in-suit; an award of damages adequate to compensate CleanTech for the infringement that has occurred, but in no event less than a reasonable royalty for the use made of the inventions of the patents-in-suit as provided in 35 U.S.C. § 284, together with prejudgment interest from the date the infringement began; and an award to CleanTech of all remedies available under 35 U.S.C. §§ 284, 285 and 154(d).

Practice Tip: Multi-district litigation affords consistency and judicial economy, as well as allowing plaintiffs and defendants to concentrate their efforts in one forum. However, lawsuits that are not settled before trial must later be remanded to the transferring court and to a judge who has had little opportunity to become familiar with the issues.