Patent Infringement

March 1, 2016

Indiana Patent Litigation: Lilly Sues India Manufacturer of Generic Drugs for Infringement

Indianapolis, Indiana – An Indiana patent attorney for Plaintiff Eli Lilly & Company (“Lilly”) of Indianapolis, Indiana filed a lawsuit in the Southern District of Indiana alleging that Biocon Limited of Bangalore, India will infringe its patented chemotherapy drug, which Lilly offers under the brand name ALIMTA.

At issue in this patent litigation is U.S. Patent No. 7,772,209 (the “‘209 patent”). In February, Biocon notified Lilly that it had submitted an Abbreviated New Drug Application (“ANDA”) to the FDA. Lilly believes that the product that is the subject of the ANDA will be marketed as a generic version of ALIMTA and that such conduct will infringe the ‘209 patent.

This federal patent infringement lawsuit, filed by an Indiana lawyer on behalf of Lilly, lists a single count: Infringement of U.S. Patent No. 7,772,209.

Lilly states that it will suffer irreparable injury unless Defendant is “enjoined from infringing the ‘209 patent, actively inducing infringement of the ‘209 patent, and contributing to the infringement by others of the ‘209 patent.” It seeks a declaratory judgment, equitable relief, damages, costs and attorneys’ fees.

February 9, 2016

Indiana Patent Litigation: Eli Lilly Asks Indiana Federal Court to Adjudicate Dispute Regarding Patented Pharmaceutical

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana patent attorneys for Plaintiff Eli Lilly and Company of Indianapolis, Indiana (“Lilly”) filed an intellectual property lawsuit in the Southern District of Indiana asserting infringement of U.S. Patent No. 7,772,209 (“the ‘209 patent”), which was filed with the U.S. Patent and Trademark Office.

This patent infringement lawsuit asserts unlawful behavior by two Defendants. Specifically, the complaint states that Dr. Reddy’s Laboratories, Inc. of Princeton, New Jersey is acting on behalf of Dr. Reddy’s Laboratories, Ltd. of Hyderabad, India in seeking approval to manufacture and sell a generic version of Lilly’s ALIMTA®, a chemotherapy agent used for the treatment of various types of cancer. Lilly further contends that the two Defendants are agents and/or alter-egos of one another.

Lilly states that unless Defendants are “enjoined from infringing the ‘209 patent, actively inducing infringement of the ‘209 patent, and contributing to the infringement by others of the ‘209 patent, Lilly will suffer irreparable injury.”

This lawsuit, filed by Indiana patent lawyers for Lilly, lists a single count: Infringement of U.S. Patent No. 7,772,209. Lilly seeks a declaratory judgment, equitable relief, damages, costs and attorneys’ fees.

January 27, 2016

Indiana Patent Litigation: Cummins Sues ADP Distributors for Infringement of Turbocharger Patents

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Patent attorneys for Plaintiffs Cummins Ltd., headquartered in the United Kingdom, and Cummins Inc. of Columbus, Indiana commenced patent infringement litigation in the Southern District of Indiana. The Defendants are ADP Distributors USA, Inc. of Tempe, Arizona and ADP Distributors, Inc., headquartered in British Columbia, Canada. They are accused of infringing two of Plaintiffs’ U.S. patents, both of which have been filed with the U.S. Patent and Trademark Office.

Defendants are accused of infringing U.S. Patent No. 6,401,563 (“the ‘563 patent”), entitled “Actuating Mechanism For A Slidable Nozzle Ring” and U.S. Patent No. 5,941,684 (“the ‘684 patent”), entitled “Variable Geometry Turbine.” The ‘563 patent is directed to certain components of a turbocharger or turbomachine and to a linkage assembly for linking together certain components within a turbocharger or turbomachine, while the claims of the ‘684 patent “are generally directed to a turbine, such as one used in connection with a turbocharger, having one or more springs which provide non-linear length to spring force characteristics on a displaceable sidewall.”

Plaintiff Cummins Ltd. claims to own all right, title and interest in both patents. Plaintiff Cummins Inc. states that it is an exclusive licensee of the ‘563 and ‘684 patents for sales of turbochargers and turbocharger components.

Defendants’ accused products include the Rotomaster Turbocharger, offered under model number H1550112N, and a Rotomaster replacement part. Defendants are accused of acting individually or in concert with others or each other to advertise for sale, offer for sale, import, sell and/or use these products in the U.S.

This federal lawsuit, filed with the trial court by patent lawyers for the Plaintiffs, alleges the following claims:

• Count I: Direct Infringement of U.S. Patent No. 6,401,563
• Count II: Direct Infringement of U.S. Patent No. 5,941,684
• Count III: Inducement to Infringe the ‘563 Patent
• Count IV: Contributory Infringement of the ‘563 Patent

Plaintiffs seek equitable relief; damages, including treble damages; interest; costs and attorneys’ fees.

January 4, 2016

Indiana Patent Litigation: Longtime Competitors in RV Market in Federal Court over Assertions of Patent Infringement

By Overhauser Law Offices, LLC

South Bend, Indiana – Plaintiff Shower Enclosures America, Inc. of Ontario, California sued in the Northern District of Indiana alleging that BBC Distribution Corp. of Elkhart, Indiana infringed “Triple Slide Assembly for Sliding Doors,” U.S. Patent No. 7,174,944, which was issued by the U.S. Patent and Trademark Office.

An Indiana patent attorney for Plaintiff Shower Enclosures America, Inc. (“SEA”) filed this lawsuit alleging that Defendant BBC Distribution, LLC (“BBC”) is infringing SEA’s patent on a triple-slide assembly for sliding doors, a product which is cited in the complaint as particularly appropriate for use in recreational vehicles. The patent at issue is directed to “products, such as shower doors, which have three door panels mounted into a compact, two-track header which allows the panels to slide easily between open and closed positions.” SEA makes and sells products that incorporate the patented invention.

BBC is accused of infringing with its “Tripass” shower door. SEA contends that the BBC product infringes at least claim 12 of the patent-in-suit either literally or under the doctrine of equivalents.

SEA requests that the court grant it equitable relief as well as damages for the alleged patent infringement.

December 23, 2015

Indiana Patent Law: Motion in Limine to Bar Evidence Regarding Inequitable Conduct Denied

By Overhauser Law Offices, LLC

Evansville, Indiana – District Judge Richard L. Young, writing for the Southern District of Indiana in the matter of Berry Plastics Corp. v. Intertape Polymer Corp., denied Berry’s motion in limine to prohibit Intertape from proffering testimony or evidence at trial which referred to reliance on counsel or good faith in prosecuting the patent applications for U.S. Patent No. 7,476,416 (the “‘416 patent”).

Plaintiff Berry Plastics Corp. of Evansville, Indiana filed a patent infringement lawsuit against competitor Intertape Polymer Corp., which owns the ‘416 patent. The court held a jury trial from November 3, 2014 to November 17, 2014.

The issue of Berry’s inequitable conduct claim against Intertape, which is headquartered in Montreal, Canada, remained unresolved after the jury trial and was set for a subsequent bench trial. To prevail on this claim, Berry would need to prove “by clear and convincing evidence that Intertape knew of a prior art reference, knew that it was material, and made a deliberate decision to withhold it.”

Prior to the trial on this claim, Plaintiff filed a motion in limine seeking to prohibit Defendant from proffering testimony or evidence at the bench trial that referred to reliance on counsel or good faith in prosecuting patent applications for the ‘416 patent. Full discovery regarding those issues had previously been denied to Berry and Berry argued to the court that it would unfairly prejudice its interests to deny it full discovery, yet leave open the possibility that Intertape would raise those defenses at trial.

The court denied Berry’s motion, noting three facts relevant to that decision. First, Defendant Intertape had indicated that it would not assert advice of counsel and counsel’s good faith during the bench trial. Second, the witnesses relevant to the defenses would not be called at the trial. And, finally, the court noted that it had already ruled that “the testimony upon which Berry bases its motion (and testimony strikingly similar to it) does not amount to an assertion of the defenses of reliance on advice of counsel or counsel’s good faith.”

December 17, 2015

Patent Law: Patent Litigation May Be Impacted by Amendments to Federal Rules of Civil Procedure

By Overhauser Law Offices, LLC

Washington, D.C. – The United States Supreme Court ordered the Federal Rules of Civil Procedure to be amended following last year’s approval of the changes by the Judicial Conference Advisory Committee. Civil Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55 and 84, and the Appendix of Forms were affected by this change. The revisions took effect on December 1, 2015.

These changes may affect patent litigation at the trial court level. Most relevantly, Rule 84, “Forms,” was abrogated. That change, in turn, eliminated the Appendix of Forms, including Form 18, which had provided a basic sample complaint outlining what constituted a sufficient allegation of direct patent infringement. Rule 84 had provided that the “forms contained in the Appendix of Forms are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate.”

Practice Tip: It appears that the abrogation of Rule 84 will modify the pleading standard for patent litigation, raising it to the higher standard set forth by the Supreme Court in Twombly and Iqbal. It is unclear how federal courts will interpret these revisions. Consequently, Indiana patent attorneys, and especially patent litigators, would be wise to keep abreast of rulings on motions to dismiss for failure to state a claim under Rule 12(b)(6) as well as motions for a more definite statement under Rule 12(e) as the contours of the revised pleading standard in the context of patent infringement litigation are clarified.

December 4, 2015

Federal Circuit Patent Law: Quality Control Testing Is Not Patent Infringement; Does Not “Make” a Product as Contemplated Under § 271(g)

By Overhauser Law Offices, LLC

Washington, D.C. – The United States Court of Appeals for the Federal Circuit heard a patent infringement lawsuit styled Momenta Pharms., Inc. v. Teva Pharms. USA Inc. on the issue of whether Defendants’ quality control procedures infringed the patent-in-suit. This appeal included a companion case, Momenta Pharms., Inc. v. Amphastar et al. Both cases were heard at the trial court level in the United States District Court for the District of Massachusetts by Judge Nathaniel M. Gorton.

Momenta was the first to market enoxaparin, an anticoagulant drug, in generic form. Momenta also owns U.S. Patent No. 7,575,886 (“the ‘886 patent”), which includes claimed methods designed to ensure that every batch of enoxaparin was of sufficient quality. Momenta asserted the ‘886 patent against other manufacturers, including Teva and Amphastar, which also wanted to bring a generic version of enoxaparin to market. It contended that Defendants’ quality-control measures infringed the ‘886 patent.

In this litigation, the United States District Court for the District of Massachusetts determined that patent infringement had not taken place, listing two separate grounds. First, the asserted claims were directed towards analyzing enoxaparin for the purpose of quality control, not manufacture of the drug, which did not amount to patent infringement. Second, the district court found that use of the analytical methods of the ‘886 patent were protected under the safe harbor provisions of 35 U.S.C § 271(e)(1). Momenta appealed.

Circuit Judges Dyk, Moore and Wallach of the Federal Circuit ruled on this appeal in November. Writing for the court, Judge Wallach affirmed the trial court’s ruling that Defendants Teva and Amphastar had not infringed the ‘886 patent, holding that infringement under 35 U.S.C. § 271(g) occurs when “making” a product and that quality-control testing, thus, did not constitute patent infringement.

The Federal Circuit vacated the district court’s judgment that the activities were also protected under the “safe harbor” provisions within § 271(e)(1) and remanded this issue to the district court for further inquiry.

November 12, 2015

Indiana Patent Litigation: USITC Begins Investigation at Request of Indianapolis-Based Plaintiff

By Overhauser Law Offices, LLC

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Washington, D.C. – The U.S. International Trade Commission (“USITC”) began an investigation under section 337 of the Tariff Act of 1930 regarding the importation and sale of blood cholesterol test strips that allegedly infringe a U.S. patent. The respondents are Jant Pharmacal Corp. of Encino, California; Infopia America LLC of Titusville, Florida and Infopia Co., Ltd. of the Republic of Korea.

In August 2014, Indiana patent attorneys for Plaintiff Polymer Technology Systems (“PTS”) of Indianapolis, Indiana sued respondents in the Southern District of Indiana alleging infringement of U.S. Patent No. 7,087,397, “Method for determining HDL concentration from whole blood or plasma,” which was granted by the United States Patent and Trademark Office. In the lawsuit filed in Indiana federal court, PTS also asserted that Defendants had violated the Lanham Act.

In October 2015, PTS filed a complaint with the USITC involving its point-of-care blood cholesterol testing meters, test strips, and systems containing the same naming the same three parties. PTS asks that the USITC issue an exclusion order and a cease and desist order.

No decision has yet been made on the merits of the USITC action. The matter will be assigned to an administrative law judge (“ALJ”), who will hold an evidentiary hearing. The ALJ will make an initial determination regarding whether there is a violation of section 337. That decision, in turn, is subject to review by the USITC, which then makes a final determination.

October 30, 2015

U.S. Supreme Court to Hear Patent Infringement Litigation Involving Indiana-Based Zimmer

By Overhauser Law Offices, LLC

Washington, D.C. -The United States Supreme Court has agreed to hear appeals in two separate lawsuits, Halo Electronics, Inc. v. Pulse Electronics, Inc., et al., Case No. 14-1513, and Stryker Corp, et al. v. Zimmer, Inc., et al., Case No. 14-1520, on the issue of willfulness as a prerequisite for awarding enhanced damages in patent infringement litigation. The two cases were consolidated.

Under 35 U.S.C. § 284 of the Patent Act, a district court “may increase … damages up to three times the amount found or assessed.” Despite this language, which on its surface is permissive and discretionary, the Federal Circuit imposes a stricter test. For a district court to award enhanced damages under § 284, this test requires that a patentee prove by clear and convincing evidence that infringement was “willful.” A determination of willfulness requires a finding of both (1) an objectively high likelihood that the infringer’s actions constituted infringement, and (2) that this likelihood was either known or so obvious that it should have been known to the accused infringer.

The questions presented to the Supreme Court are:

1. Has the Federal Circuit improperly abrogated the plain meaning of 35 U.S.C. § 284 by forbidding any award of enhanced damages unless there is a finding of willfulness under a rigid, two-part test, when this Court recently rejected an analogous framework imposed on 35 U.S.C. § 285, the statute providing for attorneys’ fee awards in exceptional cases?

2. Does a district court have discretion under 35 U.S.C. § 284 to award enhanced damages where an infringer intentionally copied a direct competitor’s patented invention, knew the invention was covered by multiple patents, and made no attempt to avoid infringing the patents on that invention?

The Court granted motions by Independent Inventor Groups and Nokia Technologies OY, et al. to file briefs as amici curiae.

Practice Tip: In December 2014, the Federal Circuit overturned the decision of the Western District of Michigan to triple the damages awarded to Stryker, reducing the amount from $228 million to $70 million.

October 26, 2015

Indiana Patent Litigation: German Lawyers and Law Firm Sued on Allegations of Misappropriation of Intellectual Property

By Overhauser Law Offices, LLC

South Bend, Indiana – An Indiana patent attorney for Plaintiffs Never Lost Golf, LLC of South Bend, Indiana; Michael Carnell, a domiciliary of California who resides in Berlin, Germany and who does business as The Never Lost Golf Tee Saver and The Never Lost Golf Tee Saver Mat System (“NLG”); and Teresa O’Keefe and Grant Holloway, Trustees for the N.L.G. Living Trust filed a lawsuit in the Northern District of Indiana alleging infringement of NLG’s German Patent A63B 57/100, which has been filed with the German Patent Office. Patent protection for NLG has also been sought with the U.S. Patent and Trademark Office.

Three Defendants in this litigation, Maia Steinert, Chrisoph Stephan and Ralf Menwegen, are partners and/or members of Steinert & Stephan, a German law firm. Steinert has been accused by Plaintiffs of “aggregious [sic] conduct in asserting ownership interest in the NLG German patent.” Stephan and Menwegen were accused of having been “involved in the patent process.”

Carnell contends that he retained Steinert & Stephan in 2010 to represent him in filing for a German patent for the Never Lost Golf product. He adds in his complaint that any intellectual property rights obtained by these filings were supposed to accrue to him alone. Carnell asserts that, subsequent to hiring the Steinert & Stephan and utilizing their services in pursuit of a German patent, Steinert applied for a Never Lost Golf patent with the United States Patent and Trademark Office. This filing, states Carnell, includes an assertion by Steinert that she was the sole owner of the patent rights associated with the NLG product. He states that her actions demonstrate an attempt to illegally claim rights to intellectual property that she knew was not hers, both in the United States and in Germany.

Two additional Defendants, Markus Schumann and Harribert Pamp, have been named as co-conspirators. Plaintiffs contend that they conspired with Steinert to commit fraud and perjury in support of Steinert’s assertion of ownership in NLG’s German patent.

Defendants seek equitable relief along with damages, costs and attorney fees.