Patent Infringement

May 30, 2012

Tower Reinforcement Sues Crown Castle International for Patent Infringement of TOWER REINFORCEMENT APPARATUS AND METHOD

Indianapolis; IN – Patent attorneys for Tower Reinforcement of Newburgh, Indiana filed a patent infringement suit in the Southern District of Indiana alleging Crown Castle International and Crown Castle Operating of Houston, Texas, and Aero Solutions, LLC of Boulder, Colorado infringed patent no.7,849,659, TOWER REINFORCEMENT APPARATUS AND METHOD, which has been issued by the US Patent Office.

Both the Crown Defendants and Aero Solutions are incorporated outside of Indiana, but the complaint alleges they maintain substantial contacts with Indiana by regularly conducting business in the state. Tower alleges patent infringement of three of their patents–“the ‘659 patent,” “the ‘972 patent,” and “the ‘712 patent”–to which Tower owns all the rights and interest. According to Tower’s complaint, the Defendants had actual notice of the Tower patents and still infringed on the patents through their making, using, selling and the offer of sale of products utilizing Tower’s patented technology. Tower asserts that the Defendants also encourage the design and construction of the protected patents, their actions being willful and deliberate. The complaint does not give many details about specific acts of infringement. Tower alleges they have, and will continue to, suffer substantial and irreparable financial loss and is therefore seeking to permanently enjoin the Defendants from their infringing activities of their ‘659, ‘972, and ‘712 patents.

Practice Tip: The US Patent laws applicable to this suit are 35 U.S.C. §§ 1, et seq. Specifically, 28 U.S.C. §§ 1338(a) gives district courts jurisdiction in any civil action relating to patents.

May 25, 2012

Norco Industries, Inc. Sues Mito Corporation For Patent Infringement of Roof Bow

By Overhauser Law Offices, LLC

Indianapolis; IN – Patent attorneys for Norco Industries, Inc. of Elkhart, Indiana filed a patent infringement in the Southern District of Indianaalleging Mito Corporation of Elkhart, Indiana infringed patent no. D650,723 ROOF BOW, which has been issued by the US Patent Office.

The patented technology was invented by Bernard F. Garceau and Robert G. Chew, but the complaint states the patent was owned by Norco during the period of alleged infringement. The ‘723 patent was issued in December 2011. The complaint seeks an injunction, damages, attorney fees and costs.

Practice Tip: The complaint makes only a barebones statement regarding the patent infringement: it simply states Mito is infringing the patent by “making, selling and using roof bows that embody the patented invention.”

May 17, 2012

Southern District Lifts Stay on Patent Infringement Suit Against Google and Grants One Number Corporation’s Motion To Amend Complaint

By Overhauser Law Offices, LLC

Indianapolis, IN – The Southern District of Indiana has lifted a stay on a patent infringement case against Google and allowed the plaintiff, One Number Corp. Motion to amend its complaint. Patent attorneys for One Number Corp. of Anderson, Indiana had filed a patent infringement lawsuit in the Southern District of Indiana alleging that Google of Mountain View, California infringed patent no. 7,680,256 and 8,107,603, CONTACT NUMBER ENCAPSULATION SYSTEM, which has been issued by the US Patent Office.

The litigation was stayed while the US Patent Office re-examined the patents at issue. One Number had motioned the court to remove the stay because a substantial portion of the re-examination process has concluded. Google opposed lifting the stay because there was chance that the Federal Circuit Court would reverse the Board of Patent Appeals and Interferences’ conclusions. The court concluded that the stay should be lifted and granted One Number’s motion to amend their compliant. The parties were ordered to submit a case management plan within 14 days.

Practice Tip: It is common for patent infringement litigation to be stayed when the US Patent Office is re-examining the patent, although the district court is not required to stay the litigation. Each claim of a patent is presumed to be valid and enforceable, even if the patent is being re-examined. The US Patent Office offers this FAQ sheet that explains the re-examination process.

May 9, 2012

U.S. Supreme Court Invites Solicitor General to Brief Patent Infringement Case Against Indiana Farmer Over Second Generation Seed

By Overhauser Law Offices, LLC

Washington, D.C. – The United State Supreme Court has invited the U.S. Solicitor General to file a brief expressing the view of the United States government on a patent infringement case that has been submitted to the Court on a petition of certiorari. Patent lawyers for Indiana farmer Vernon Hugh Bowman have filed a petition for certiorari requesting that the U.S. Supreme Court review the adverse decision of the U.S. Court of Appeals for the Federal Circuit, which held that Bowman had infringed the patents of the Monsanto Company of St. Louis, Missouri by using second generation seeds.

In 2007, patent attorneys for Monsanto had filed a patent infringement lawsuit in the Southern District of Indiana alleging that Mr. Bowman infringed patent no. 5,352,605, Chimeric genes for transforming plant cells using viral promoters and RE39,247E, GLYPHOSATE-TOLERANT 5-ENOLPYRUVYLSHIKIMATE-3-PHOSPHATE SYNTHASES, which has been issued by the US Patent Office. The patents at issue cover different aspects of genetically-modified “Roundup Ready®” soybeans that are resistant to certain herbicides, including Monsanto’s Roundup® product.

According to the Federal Circuit Court’s opinion, all growers of the Roundup Ready soybeans must sign a limited use license, called a Technology Agreement. The agreement restricts the use of the seed to a single season and does not allow the grower to save any seed from the crop produced to plant the next season. However, the agreement allows growers to sell the second-generation seeds to local grain elevators as “commodity seeds.” Farmer Bowman purchased some of these commodity seeds, planted and produced a crop from them. Mr. Bowman then retained some of the seeds from the commodity seed crop and replanted them the next year.

Chief Judge Richard L. Young of the Southern District of Indiana found that Farmer Bowman had infringed the Monsanto’s patents and entered a judgment in the amount of $84,456.20 in favor of Monsanto. The Federal Circuit Court affirmed. Mr. Bowman’s petition of certiorari asked the Court to review this decision. At this point, the Supreme Court has not decided whether it will hear the merits of the case.

Practice Tip: Fewer than 2% of certiorari petitions to the U.S. Supreme Court are accepted for review by the Court. The fact that the Court has requested the U.S. Solicitor General to brief this case suggests that the Court is taking interest in Bowman’s petition.

April 27, 2012

Lippert Components Sues Actuant Corporation for Patent Infringement of Retractable Room Technology for Recreational Vehicles

By Overhauser Law Offices, LLC

South Bend; IN – Patent attorneys for Lippert Components of Goshen, Indiana filed a patent infringement suit in the Northern District of Indiana alleging Actuant Corporation of Menomonee Falls, Wisconsin, Versa Technologies of Milwaukee, Wisconsin and Engineered Solutions of Milwaukee, Wisconsin infringed patent no. 8,016,343 RETRACTABLE ROOM ACTUATION ASSEMBLY FOR RECREATIONAL VEHICLE, which has been issued by the US Patent Office.

The complaint states that the defendants displayed a new product, called “In-Wall Slide,” at a trade show in Kentucky in November and December 2010. Thereafter, Lippert notified the defendants that it had a patent application pending for the exact same technology utilized by the In-Wall Slide product. Lippert’s ‘343 patent was granted on September 13, 2011. The complaint states that the defendants again displayed the In-Wall Slide product at the 2011 trade show. Libbert alleges that the In-Wall Slide product infringes its ‘343 patent. The complaint makes one claim of patent infringement and seeks an injunction, damages, attorney fees and costs.

Practice Tip: The plaintiff has included an interesting fact to establish personal jurisdiction. The complaint alleges that Versa and Engineered Solutions operate a business in Mishawaka, Indiana called Power Gear.

April 23, 2012

Eli Lilly Sues Apotex Inc. for Patent Infringement of ALIMTA

By Overhauser Law Offices, LLC

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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