Patent Infringement

April 23, 2012

Eli Lilly Sues Apotex Inc. for Patent Infringement of ALIMTA

Indianapolis, IN – Patent attorneys for Eli Lilly of Indianapolis, Indiana filed a patent infringement suit in alleging Apotex of Toronto, Canada infringed patent no. 7772209, ALIMTA, which has been issued by the US Patent Office.

ALIMTA is a chemotherapy drug used to treat mesothelioma and other lung cancers. Lilly co-owns the patent with Princeton University. This lawsuit arises from Apotex’s filing of an Abbreviated New Drug Application in March 2012 with the Food and Drug Administration that utilizes the ALIMTA patent. Lilly alleges that Apotex seeks approval for ANDA and that the product infringes its patents. The complaint makes one claim of patent infringement and seeks a declaration of infringement, an injunction, attorney fees and costs.

Practice Tip: Lilly’s ALIMTA has been the subject of several patent infringement cases. Here are a few we have blogged about:

Eli Lilly and Company Sues Accord Healthcare for Patent Infringement of Lung Cancer Drug ALIMTA
Eli Lilly Company Sues APP Pharmaceuticals LLC for Patent Infringement of Chemotherapy Drug
Lilly Wins Patent Infringement Suit Regarding Chemotherapy Drug

April 17, 2012

Southern District Grants Motion to Transfer Venue for Combined Public Communications in Patent Case Over Phone Service To Jails

By Overhauser Law Offices, LLC

Indianapolis; IN – [Note – Overhauser Law Offices, LLC, publisher of this site, represented Combined Public Communications, who prevailed in this matter]

Judge Jane E. Magnus-Stinson of the Southern District of Indiana has granted a motion to change venue in a patent infringement suit. Patent attorneys for Securus Technologies of Dallas, Texas, had filed a patent infringement lawsuit in the Southern District of Indiana alleging that Combined Public Communications (“CPC”), based in Kentucky, infringed Securus’s March 1, 2011 patent no 7,899,167 for “CENTRALIZED CALL PROCESSING.” The patent claims to provide “a centralized architecture for call processing” including voice over internet protocols (VOIP).

Securus’s patent lawyers alleged in the complaint that the litigants are competitors because they each provide “specialized call-processing and billing equipment and services for correctional institutions, direct local and long distance call processing for correctional facilities,” and other technologies relating to “Inmate Management Systems.”

The court’s order transferring venue notes that T-Netix, Inc., a company that is part of the Securus corporate family, filed a patent infringement suit against CPC in the Western District of Kentucky making similar patent infringement claims. Weighing the relevant factors, the court concluded that the interests of justice and convenience to the parties and witnesses favored a transfer of venue to the Western District of Kentucky.

Practice Tip: 28 U.S.C. § 1404(a) sets the standard for transfer of venue: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”

March 30, 2012

Buztronics sues Toy Investments, Inc. for Declaratory Judgment for Non-Infringement of Patents

By Overhauser Law Offices, LLC

Indianapolis, IN. Patent attorneys for Buztronics, Inc. of Indianapolis, Indiana have filed a patent suit seeking that three patents owned by Toy Smith Investments, Inc. of Sumner, Washington be declared invalid and not infringed by Buztronics’ products. The three patents, all entitled “WRIST TOY” are: 6,685,582, 6,971,963, and 7,833,115.

Buztronics alleges that Toysmith “accused Buztronics of infringement of Toysmith’s patent rights.”

Practice Tip: Declaratory judgment suits are often filed intellectual property cases after the first allegation of infringement is made. The strategy is for the accused infringer to obtain “home court advantage” by having the dispute litigated nearby. This makes it more expensive for the patent owner to litigate, because they must hire local counsel. Coincidentally, two days before Buztronics filed this suit, the Court of Appeals for the Federal Circuit issued an Order clarifying when threats of infringement rise to a level sufficient to trigger declaratory judgment jurisdiction. In 3M Company v. Avery Denison Corporation, the Court stated that declaratory judgment jurisdiction requires more than “a communication from a patent owner to a party merely identifying its patent and the other party’s product line.”

March 29, 2012

Supreme Court Of The United States Reversed The Federal Circuit On Method Claim For Treating Autoimmune Diseases Are Not Eligible For Patent Protection

By Overhauser Law Offices, LLC

Washington, D.C. – The United States Supreme Court has unanimously reversed a patent decision by the Court of Appeals for the Federal Circuit and has held that patent claims that are a “law of nature” are not patent eligible under 35 U.S.C. § 101. The decision built upon the Court’s 2010 decision in Bilski v. Kappos.

Patent lawyers for Prometheus Laboratories, Inc. of San Diego, California filed a patent infringement suit against Mayo Collaborative Services, doing business as Mayo Medical Laboratories of Rochester, Minnesota, alleging that Mayo infringed patent no. 6,355,623, Method of treating IBD/Crohn’s disease and related conditions wherein drug metabolite levels in host blood cells determine subsequent dosage and patent no. 6,680,302, Methods of optimizing drug therapeutic efficacy for treatment of immune-mediated gastrointestinal disorders which have been issued by the US Patent Office.

The patents at issue involve claims over an observed correlation between certain blood tests and patient health, specifically the correlation between the level of certain drug metabolites in the patient’s blood and the patient’s symptoms of gastrointestinal disease. The Court of Appeals for the Federal Circuit had twice ruled in Prometheus’s favor. Oral arguments were held December 7, 2011 at the United States Supreme Court. The Court decision essentially held that Prometheus’s “invention” was not patentable because it was effectively a law of nature. In other words, the relationship between the dosages and the effect on patient health was a natural phenomenon and therefore, unpatentable.

We blogged a preview of this case in October. This ruling is being criticized by the patent bar as making the law less clear. In particular, Robert S. Sachs of Fenwick & West LLP is examining the decision in a series of blogs on Patently-O in which he examines “just some of the logical and legal errors in the Court’s decision.” Sachs commentary also suggests that numerous patents should now be found invalid.

Practice Tip: The Court’s decision has immediately changed protocol at the patent examination office. The US Patent Office has issued new guidelines to patent examiners which are available here.
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March 28, 2012

Southern District Denies Certainteed’s Motion to Dismiss Patent Infringement Suit Brought By Knauf Insulation

By Overhauser Law Offices, LLC

Indianapolis; IN – The Southern District of Indiana has denied a motion to dismiss filed by CertainTeed Corporation in a patent infringement lawsuit. Knauf Insulation Limited of St. Helens, Merseyside, United Kingdom and Knauf Insulation GMBH of Shelbyville, Indiana, filed a patent infringement suit alleging that Certainteed Corporation had infringed patent 7,854,980, FORMALDEHYDE-FREE MINERAL FIBRE INSULATION PRODUCT, which was issued by the US Patent Office. We previously blogged about this case on January 16, 2012 and May 19, 2011.

Patent attorneys for Certainteed had filed the motion to dismiss arguing that Knauf did not have standing because it did not own the rights to the patent at issue and that a first-filed action by Certainteed in the District of Columbia should resolve this dispute, not the case filed with the Southern District of Indiana. The claim that Knauf did not own the patent in question was based upon Certaineed’s interpretation of an exclusive license agreement between the inventors and various divisions of Knauf. Specifically, the Knauf parties had entered a “quitclaim and assignment” agreement that was governed by the laws of the Belgium. Certainteed argued that the transfer of patent rights was not valid.

The court found no merit in Certainteed’s argument. The court found “The Quitclaim and Assignment executed [by Knauf] clearly contains what is referred to in common parlance as a ‘typo.'” The court found that the typo did not negate the parties intentions in entering the contracts. The court also declined to dismiss under the first filed rule, noting that the District of Columbia court had yet to determine whether it had jurisdiction.

Practice Tip: The case management plan had been suspended while this motion to dismiss was pending. This controversy has been slow to progress. It was first filed in February 2011 and was refilled in its current form in May 2011 so it has been nearly a year at this point. The court has quickly scheduled a conference for later this week, likely attempting to move it along.
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March 27, 2012

Digonex Technologies Sue QCUE Inc. for Patent Infringement of Ticket Pricing Software

By Overhauser Law Offices, LLC

Indianapolis, IN – Patent attorneys for Digonex Technologies, Inc. of Indianapolis, Indiana has filed a patent infringement suit in the Southern District of Indiana alleging that Qcue Inc., of Austin, Texas infringed patent numbers of the 8,095,424 and 8,112,303, which have been issued by the US Patent Office.

The plaintiff claims that the defendants sell dynamic pricing software products aimed at pricing tickets for events by a variety of names “Dynamic Pricing Dashboard,” “the Qcue Product,” and “software-based dynamic pricing solution” that infringe the patents held by Digonex. The technology is apparently marketed to sports teams and event promoters. The complaint alleges that Qcue has sold infringing products to Major League Baseball, Major League Soccer, National Basketball Association, National Hockey League and NASCAR. The complaint makes two claims of patent infringement and seeks a declaration of infringement, an injunction, damages, attorney fees and costs. The complaint also alleges that Qcue has the specific intent to induce others to infringe Digonex’s patents.

Practice Tip: The complaint alleges that Qcue has referenced the two Digonex patents in a Qcue patent application pending before the US Patent Office. This, in part, is Digonex’s “evidence” of willful infringement. Also, Patent Office’s records reveal that in prosecuting the 8,095,424 patent it submitted an Information Disclsosure Statement on September 30, 2011, after the claims had been allowed. However, the Patent Office refused to consider the IDS becuase it did not comply with Patent Office regulations. Therefore, there may be some question regarding the validity of this patent.

March 12, 2012

Organic Seed Growers’ Patent Infringement Suit Against Monsanto Has Been Dismissed For Lack of Jurisdiction

By Overhauser Law Offices, LLC

New York, NY – The Southern District of New York has dismissed an innovative patent infringement lawsuit brought by a group of organic farmers against agriculture giant Monsanto Company for lack of jurisdiction. Monsanto has filed a motion to dismiss arguing that the plaintiffs have not demonstrated a justiciable case or controversy and therefore the court does not have subject matter jurisdiction because there was no current case or controversy.

We previously blogged about the case here. Earlier this year, patent attorneys for a group of 60 organizations and farmers, including the Organic Seed Growers and Trade Association, filed a patent lawsuit in the Southern District of New York against agriculture giant Monsanto Company of St. Louis, Missouri. The plaintiffs are farmers who do not want their organic seeds contaminated by the transgenic or genetically modified seeds that are produced and patented by Monsanto. They feared contamination occurs when organic seeds come into contact with genetic material from transgenic seeds through natural pollination processes, such as the wind blowing transgenic pollen to a organic farm nearby. The plaintiffs alleged that, given Monsanto’s reputation for vigorously defending its patents, they have brought “this action to protect themselves from ever being accused of infringing patents on transgenic seed.” Their complaint begins: “Society stands on the precipice of forever being bound to transgenic agriculture and transgenic food. Coexistence between transgenic seed and organic seed is impossible because transgenic seed contaminates and eventually overcomes organic seed. ” The organic farmers sought a declaratory judgment that all of Monsanto’s transgenic seed patents are invalid as injurious to public health and for numerous other reasons. “

The Organic Seed Farmers have not yet indicated whether they will appeal this decision.

Practice Tip: As the court noted in finding it did not have jurisdiction: “The Declaratory Judgment Act provides, “In a case of actual controversy within its jurisdiction, . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C.§ 2201(a).” A plaintiffs belief that a lawsuit may be threatened, even if somewhat realistic, must typically allege some affirmative facts to support the threat in order for the court to find an actual case or controversy exists.

March 8, 2012

Fostech Outdoors, LLC Sues Slide Fire Solutions, Inc. for Patent Infringement of Semi-Automatic Firearm Device

By Overhauser Law Offices, LLC

Indianapolis, IN- Patent attorneys for Fostech Outdoors, LLC of Paris Crossing, Indiana filed a patent infringement suit in the Southern District of Indiana alleging Slide Fire Solutions, Inc. of Moran, Texas infringed patent no. 6101918, METHOD AND APPARATUS FOR ACCELERATING THE CYCLIC FIRING RATE OF A SEMI-AUTOMATIC FIREARM, which has been issued by the US Patent Office.

The patented technology is described as “bump fire stocks” which are a device that, when attached to certain firearms, allows the firearm to rapidly fire multiple shots. The complaint alleges that Slide makes, imports, and/or sells a product called “SSAR-15 stock” that infringes the ‘918 patent “when used in conjunction with certain firearms assemblies.” The complaint alleges that Slide actively induces other to infringe the Fostech’s patent and that Slide should be liable for contributory infringement because it knows there are no non-infringing uses for its product. The complaint makes one claim of patent infringement and seeks an injunction, damages, costs and attorney fees.

Practice Tip: The plaintiff here has made a claim of contributory patent infringement, which governed by 35 U.S.C. § 271(b) and is defined as selling or importing a device “for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use”

Personal jurisdiction may be an issue in this case. The plaintiff alleges Slide regularly conducts business in Indiana and the events giving rise to the suit occurred in Indiana. However, none of the specific acts of infringement seem to have occurred in Indiana.
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March 5, 2012

Northern District of Indiana Consolidates Cases, Discovery in Dispute Between Elkhart RV Manufacturers, Includes Patent and Copyright Infringement Claims

By Overhauser Law Offices, LLC

South Bend, IN – The Northern District of Indiana has issued an order consolidating related trade secret, copyright infringement and patent infringement lawsuits a dispute between RV manufacturers, Heartland Recreational Vehicles, LLC of Elkhart, Indiana and Forest River, Inc. of Elkhart, Indiana. This order address five cases currently pending in Northern District of Indiana: 3:08-CV-490-JD-CAN, 3:09-CV-302-JD-CAN, 3:10-CV-011-JD-CAN, 3:10-CV-409-JD-CAN, and 3:11-cv-250-JD-CAN. In addition to Heartland and Forest River, Brian Brady, Catteron Partners and Thor Industries are also named in the suits.
The court found that three of the cases, 3:08-CV-490-JD-CAN, 3:09-CV-302-JD-CAN, and 3:10-CV-409-JD-CAN, involve Heartland’s acquisition of Forest River’s Master List. Since they involve similar questions, the court consolidated these three cases.
The court did not consolidate two of the cases. The court noted that 3:10-CV-011-JD-CAN is a copyright infringement case, where Forest River claims that Heartland infringed its “r.Pod” floor plan. The fifth case, 3:11-cv-250-JD-CAN, is a patent infringement case. In June. Patent lawyers for Heartland Recreational Vehicles, LLC of Elkhart, Indiana filed a patent infringement lawsuit alleging Forest River, Inc. of Elkhart, Indiana infringed Patent No. 7,878,545, Travel trailer having improved turning radius, which has been issued by the US Patent Office.
Indiana Intellectual Property Law and News blogged about the case here: Heartland Recreational Vehicles LLC Sues Forest River Inc. for Patent Infringement of Travel Trailer Turning Radius. The court found that the patent infringement case should not be consolidated because it would likely create confusion and make the litigation more complex.
The court, however, ordered that discovery in all five of the cases be consolidated.

Practice Tip: Under Federal Rule of Civil Procedure 42(a), common questions of law and fact are a prerequisite to the consolidation of cases

February 23, 2012

Southern District of Indiana Grants order over Draper, Inc. Motion to Compel to MechoShade Systems, Inc in Patent Infringement Suit Over Spring Shades

By Overhauser Law Offices, LLC

Indianapolis, IN – The Southern District of Indiana has granted Draper, Inc’s of Spiceland, Indiana, motion for limited jurisdictional discovery in a patent infringement case. In November 2010, patent attorneys for Draper, Inc’s of Spiceland, Indiana filed a patent infringement lawsuit in the Southern District of Indiana alleging that MechoShade Systems, Inc and Joel Berman Associates, Inc. of Long Island City, New York infringed patent no. 6,164,428, Wrap spring shade operator, which has been issued by the US Patent Office.

Joel Berman Associates has been dismissed from the suit at this point. MechoShade has filed a motion to dismiss for lack of personal jurisdiction. In response, Draper requested the Court stay ruling on the motion to dismiss and allow Draper to conduct jurisdictional discovery. Although MechoShade appropriately responded to Draper’s initial discovery requests, it refused to comply with subsequent requests. The court, in this ruling, addressed whether Draper’s requests were appropriate for the limited purpose of the personal jurisdiction inquiry. The court ordered MechoShade to produce the following: documents showing sales communications contacts in Indiana, information showing all warranty and repair work performed in Indiana, summary of presentations given in Indiana, sales lead lists. However, the court determined that MechoShade did not have to produce Commission Reports and Booking Reports, general marketing material, and access to its intranet. The court gave MechoShade until February 24, 2012 to produce the documents it ordered. Further the court ordered that all briefing on the motion to dismiss should be complete by March 24, 2012.

Practice Tip: The court has ordered that MechoShade produce a number of these items as summaries with the accuracy of the summaries to be verified by oath or declaration.
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