Patent Infringement

April 7, 2017

Indiana Patent Litigation: Infringement of Patents for Rotating Curling Iron Alleged in New Lawsuit

South Bend, Indiana – The Beachwaver Co. of Libertyville, Illinois filed a new lawsuit in the Northern District of Indiana alleging infringement of patents covering its rotating curling iron. Beachwaver seeks damages as well as injunctive and other relief under 35 U.S.C. 281, et seq.

Defendants in this newest lawsuit are Xtava, LLC of Wilmington, Delaware, C&A IP Holdings, LLC of Dover, Delaware, and C+A Global of Edison, New Jersey. They are accused of infringing two patents: U.S. Patent Nos. 9,398,796 (“the ‘796 patent”) and 9,504,301 (“the ‘301 patent”). These patents, both titled “Hair Styling Device,” have been issued by the U.S. Patent and Trademark Office.

Plaintiff has filed two similar Indiana lawsuits asserting infringement in recent months, one in October and another in December. This most recent litigation, filed by Indiana patent lawyers for Beachwaver, lists two counts:

Count 1: Infringement of the ‘796 Patent
Count 2: Direct Infringement of the ‘301 Patent

Plaintiff seeks injunctive relief, costs, attorneys’ fees and damages, including treble damages.

April 3, 2017

Indiana Patent Litigation: Lilly Alleges Patent Infringement, Sues Generic Manufacturer

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Eli Lilly and Company of Indianapolis, Indiana filed a patent infringement lawsuit in the Southern District of Indiana asserting infringement of U.S. Patent No. 7,772,209 (‘209 Patent). Defendant is Amneal Pharmaceuticals LLC of Bridgewater, New Jersey.

Lilly states that Amneal filed an Abbreviated New Drug Application with the U.S. Food and Drug Administration seeking approval to manufacture and sell two “Pemetrexed for Injection” products prior to the expiration of the ‘209 patent. Lilly contends that the ‘209 patent, which was issued by the U.S. Patent and Trademark Office, protects the Pemetrexed products.

In this patent litigation, filed by attorneys for Lilly, a single count is listed, “Infringement of U.S. Patent No. 7,772,209.” Lilly seeks relief from the Indiana court including a judgment of infringement, injunctive relief, costs and attorneys’ fees.

Practice Tip: Lilly has had some success protecting its ‘209 patent, which relates to the cancer drug Alimta®, against generic manufacturers. See, e.g., U.S. Court of Appeals Rules In Lilly’s Favor on Alimta Vitamin Regimen Patent.

March 31, 2017

Indiana Patent Litigation: Indiana Plaintiff Seeks Judgment of Noninfringement

By Overhauser Law Offices, LLC

South Bend, Indiana – Stump Printing Co., Inc., also known as Shindigz, of South Whitley, Indiana filed a patent lawsuit in the Northern District of Indiana seeking declaratory judgment of noninfringement.

Defendant in the litigation is Electronic Communication Technologies, LLC (“ECT”) of Boynton Beach, Florida, which claims to be the owner by assignment of U.S. Patent Nos. 9,373,261; 7,876,239 and 7,319,414. These patents were issued by the U.S. Patent and Trademark Office.

In February 2017, ECT sent a letter to Shindigz claiming that Shindigz’s “order confirmation” and “shipping confirmation” systems “infringe claims of the ECT Patents.” The letter demanded that Shindigz pay a fee of $30,000 to license the use of those systems.

In response, Indiana patent lawyers for plaintiff filed this lawsuit asking the court to find the ECT patents ineligible for patenting, not infringed, and invalid. The complaint accuses ECT of being a “patent troll,” stating that the company makes a practice of “calibrating the amount of [its] settlement demands to be lower than the perceived cost of litigation, to try to ensure that practicing entities settle rather than pursue challenges to the eligibility of validity of the patents through dispositive motions or trial.” The complaint also asserts that ECT and predecessor in interest Eclipse IP have filed approximately 250 patent lawsuits since 2011.

The lawsuit seeks injunctive relief, costs and attorneys’ fees as well as two counts of declaratory judgment:

Count I: Declaratory Judgment of Noninfringement

Count II: Declaratory Judgment of Invalidity

March 27, 2017

Indiana Patent Litigation: Parties Return to Court Over Allegations of Ongoing Infringement of Patent for Foldable Tricycle

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Newton Enterprises Ltd. of Kowloon, Hong Kong filed a lawsuit in the Southern District of Indiana against Defendant Singleton Trading Inc. d/b/a Elama d/b/a Blue Spotlight of Brooklyn, New York asserting patent infringement and breach of contract.

These claims follow earlier litigation against Singleton initiated by Newton in June 2016. That lawsuit, also filed in Indiana, alleged that Singleton Trading had infringed and/or induced others to infringe U.S. Patent No. 7,568,720 (the “‘720 patent”) for a “Wheeled Vehicle” with its “Zoom Bike” product.

Newton states that the 2016 action was dismissed without prejudice pursuant to a settlement agreement under which Singleton agreed to compensate Newton for its claims of past infringement and “permanently cease making, using, offering to sell, or selling the Zoom Bike” or any other product that infringed the ‘720 patent. Under the agreement, Singleton was granted a limited license to sell its remaining inventory.

Newton now returns to the court alleging that Singleton has breached the settlement agreement by selling units of the Zoom Bike exceeding the scope of the limited license. Newton further contends that this conduct constitutes willful infringement of the ‘720 patent.

This second complaint, filed by an Indiana patent lawyer, lists two counts:

Count I: Infringement of ‘720 Patent
Count II: Breach of Settlement Agreement

Newton asks the court for a declaration of willful patent infringement; damages, including a trebling of those damages; costs and attorneys’ fees; and injunctive relief.

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.

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 23, 2017

Indiana Patent Litigation: Lilly Sues TWi Pharmaceuticals for Patent Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – A patent lawyer for Eli Lilly and Company of Indianapolis, Indiana, Eli Lilly Export S.A. of Geneva, Switzerland and Acrux DDS, Pty Ltd. of West Melbourne, Australia filed an intellectual property lawsuit in the Southern District of Indiana.

Two Defendants are listed, TWi Pharmaceuticals, Inc. of Paramus, New Jersey and TWi Pharmaceuticals USA, Inc. of Taipei, Taiwan. In a 28-count complaint, Defendants are accused of infringing seven patents by filing an Abbreviated New Drug Application with the U.S. Food and Drug Administration for approval of a generic version of the pharmaceutical product Axiron® before the expiration of the patents under which the drug is protected. The patents at issue in this litigation are U.S. Patent Nos. 8,435,944; 8,993,520; 9,180,194; 8,419,307; 8,177,449; 8,807,861 and 9,289,586.

The counts against Defendants include “direct patent infringement,” “inducement to infringe” and “contributory infringement” as well as counts requesting declaratory judgment. Lilly et al. are seeking declaratory relief, injunctive relief, costs and attorney fees.

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.

December 29, 2016

Indiana Patent Litigation: Lilly Defends Alimta Patent in Federal Court

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Eli Lilly and Company of Indianapolis, Indiana filed a lawsuit in the Southern District of Indiana alleging patent infringement.

Defendant is Hospira, Inc. of Lake Forest, Illinois. It has been accused of infringing U.S. Patent No. 7,772,209 (the “‘209 patent”) by the filing of a New Drug Application (“NDA”) with the U.S. Food and Drug Administration (“FDA”) seeking approval to manufacture and sell a pharmaceutical product, “Pemetrexed for Injection,” in various concentrations. In its filing with the FDA, Hospira contended that the claims of Lilly’s patent are “invalid, unenforceable, and/or not infringed by the manufacture, use, offer for sale, or sale of Hospira’s NDA Products.”

Lilly contends that this product will compete with Alimta®, which also consists of the pharmaceutical chemical pemetrexed disodium. Alimta is used as a chemotherapy agent to treat certain types of cancer.

December 23, 2016

Indiana Patent Litigation: Curling Iron Patents the Subject of Second Indiana Lawsuit

By Overhauser Law Offices, LLC

Northern District of Indiana – The Beachwaver Co. of Libertyville, Illinois commenced intellectual property litigation in the Northern District of Indiana asserting infringement of patents pertaining to a rotating curling iron.

Defendant is T3 Micro, Inc. of Venice, California, which is accused of infringing Beachwaver’s U.S. Patent Nos. 9,398,796 (“the ‘796 patent”) and 9,504,301 (“the ‘301 patent”). These patents have been issued by the U.S. Patent and Trademark Office.

Both patents are titled “Hair Styling Device.” One of the two patents was the subject of at least one additional lawsuit in Indiana recently. That lawsuit, filed in October, covered only the ‘796 patent but included counts for both direct and induced infringement. In contrast, in this litigation, Indiana attorneys for Plaintiff list only one count of infringement for each of the two patents-in-suit: