Patent Infringement

February 13, 2012

Southern District Denies Stryker Corporation’s Motion to Add Additional Counterclaims in Patent Infringement Case against Hill-Rom Services

Indianapolis, IN – Magistrate Judge Denise K. LaRue of the Southern District of Indiana has denied Stryker Corporation’s Motion for Leave to Amend Its Counterclaims, which sought permission to add three more patent infringement counterclaims referencing three additional patents.

In April 2011, patent attorneys for Hill-Rom Services, Inc. of Batesville, Indiana, filed a patent infringement lawsuit in the Southern District of Indiana alleging that Stryker Corporation of Kalamazoo, Michigan had infringed twelve of its patents: Patent No. 6,993,799, HOSPITAL BED; Patent No. 7,644,458, HOSPITAL BED; Patent No. 6,588,523, STRETCHER HAVING A MOTORIZED WHEEL; Patent No. 6,902,019, STRETCHER HAVING A MOTORIZED WHEEL; Patent No. 7,011,172, PATIENT SUPPORT APPARATUS HAVING A MOTORIZED WHEEL; Patent No. 7,284,626, PATENT SUPPORT APPARATUS WITH POWERED WHEEL; Patent No. 7,090,041, MOTORIZED TRACTION DEVICE FOR A PATIENT SUPPORT; Patent No. 7,273,115, CONTROL APPARATUS FOR A PATIENT SUPPORT; Patent No. 7,407,024, MOTORIZED TRACTION DEVICE FOR A PATIENT SUPPORT; Patent No. 7,828,092, MOTORIZED TRACTION DEVICE FOR A PATIENT SUPPORT; Patent No. 6,772,850, POWER ASSISTED WHEELED CARRIAGE; and Patent No. 6,752,224, WHEELED CARRIAGE HAVING A POWERED AUXILIARY WHEEL, AUXILIARY WHEEL OVERTRAVEL, AND AN AUXILIARY WHEEL DRIVE AND CONTROL SYSTEM.

Stryker had counterclaimed with thirteen claims of patent infringement against Hill-Rom. In late October 2011, Stryker filed a motion seeking to add three more infringement claims regarding Patent No. 6,264,006, Brake for castered wheels, Patent No. 7,124,456, Articulated support surface for a stretcher or gurney and Patent No. 7,395,564, Articulated support surface for a stretcher or gurney.

In its decision today, the court noted that the three proposed patent infringement claims would involve significant facts and issues, such as claim-definition, claim-application, infringement and validity; that would be wholly separate and distinct from the present claims. The court stated that “The new technologies and new product hitched to the new claims will needlessly complicate and/or prolong the Court’s and the jury’s tasks.”

Practice Tip: The court’s opinion notes that Stryker stated a plan to file an additional lawsuit that would separately make these new patent infringement claims against Hill-Rom if the court denied its motion to add counterclaims to the present lawsuit. The court noted a new suit was a “ready alternative” for Stryker.
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February 10, 2012

Keith Lewis v. Grote Industries, Patent Infringement Case over LED Lighting Devices, Transferred to the Southern District

By Overhauser Law Offices, LLC

New Albany, IN – A patent infringement case originally filed in the Northern District of Illinois has been transferred to the Southern District of Indiana. In October, patent lawyers for Keith Lewis of the United Kingdom filed a patent infringement suit in the Northern District of Illinois alleging Grote Industries, Inc. of Madison, Indiana infringed patent no. 7,252,407, Lighting apparatus, which has been issued by the US Patent Office.

The case has now been transferred to the Southern District of Indiana upon the motion of Grote Industries. The complaint alleges that twenty-one lamp model numbers offered for sale by Grote infringe upon the ‘407 patent. The complaint describes the allegedly infringing products as LED lighting devices and work lamps. Lewis’s patent attorneys seek a declaration of infringement, an injunction, and damages.

Practice Tip: In filing in the Northern District of Illinois, Lewis’s patent attorneys alleged that the defendant sold products in Illinois to argue that the Illinois district court had personal jurisdiction over Grote, an Indiana company. However, the complaint reveals few ties to Illinois, since the plaintiff is from the United Kingdom and the defendant is an Indiana company. Therefore, as the Northern District of Illinois concluded, Southern District of Indiana appears to be a more appropriate venue.
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February 1, 2012

Southern District Dismisses AirFX’s Patent Infringement Suit Against Custom Cycle Control Systems Over Motorcycle Suspension

By Overhauser Law Offices, LLC

Indianapolis, IN – The Southern District of Indiana has dismissed a patent infringement lawsuit, finding that the complaint failed to give fair notice of the patent infringement claim. Patent attorneys for AirFX, LLC of Indianapolis, Indiana had filed a lawsuit against Custom Cycle Control Systems, Inc. of Las Vegas, Nevada, alleging Custom had infringed patent no. 7,559,396 Motorcycle air suspension System.

AirFX’s complaint alleged that AirFX received a defective product made by Custom Cycle Control Systems from a customer, who believed he had purchased a genuine AirFX product that utilized the patented technology. AirFX claims that Custom Cycle has been manufacturing and selling products that infringe its patent and that the inferior products of Custom Cycle have damaged the reputation of AirFX. Patent attorneys filed an amended complaint in September.

In this entry by Chief Judge Richard L. Young, the court noted several “deficiencies that concern the court” in the amended complaint. The court pointed out that the Plaintiff failed to identify the means or theory of infringement and simply alleged the defendant infringed the patent. Further, the complaint included a period before the patent was assigned to AirFX. Finally, the court noted that the Plaintiff’s patent attorney failed to attach a copy of the patent to complaint. The Plaintiff did attach a copy of a patent, however, it was not the patent at issue in this case. In sum, the court found the complaint failed to give the defendants sufficient notice of the claims against it. The court gave AirFX only 15 days to file a second amended complaint.

Practice Tip: As we blogged about last June, AirFX filed this patent infringement case at the same time as a second patent infringement case against J.D. Braun and other out-of-state defendants. The patent infringement case against J.D. Braun was dismissed in November for lack of personal jurisdiction. See our blog on the dismissal. Unless AirFX is able to amend their complaint sufficiently within the short 15 day deadline, AirFX’s patent infringement attorneys will have struck out in the Southern District.
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January 25, 2012

Eli Lilly and Company Sues Accord Healthcare for Patent Infringement of Lung Cancer Drug ALIMTA

By Overhauser Law Offices, LLC

Indianapolis, IN – Patent attorneys for Eli Lilly and Company of Indianapolis, Indiana filed a patent infringement suit in the Southern District of Indiana alleging that Accord Healthcare, Inc., USA of Durham, North Carolina infringed patent no. 7,772,209, Antifolate combination therapies, which has been issued by the US Patent Office.

The complaint states that in December Accord sent a letter notifying Lilly that Accord had submitted an Abbreviated New Drug Application (ADNA) to the Food and Drug Administration (FDA) for its generic version of Alimta. Lilly alleges that Accord’s proposed product and labeling will infringe its patents. Lilly seeks an injunction to prevent Accord from developing, manufacturing and selling the allegedly infringing product.

Practice Tip: Lilly has already won a patent infringement case over Alimta. As we blogged about last year, the District Court of Delaware affirmed the validity of Alimta patents. This lawsuit, however, is over a patent that was not the subject of the District Court of Delaware’s decision.
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January 19, 2012

Appeal Court Grants Decision for Epocal, Inc. in Patent Infringement Suit Over Point of Care Blood Testing.

By Overhauser Law Offices, LLC

Washington, D.C. – The Court of Appeals for the Federal Circuit has affirmed the dismissal of a patent infringement case. Patent attorneys for Abbott Point of Care of Princeton, New Jersey had filed a patent infringement lawsuit in the Northern District of Alabama alleging that Abbott should have legal title to patent no. 6,845,327, Point-of-care in-vitro blood analysis system, and 6,896,778, Electrode module which has been issued by the US Patent Office. The patents are owned by Epocal, Inc. of Ottawa, Ontario, Canada, who was named as defendant in this suit. The Northern District of Alabama had granted Epocal’s motion to dismiss and dismissed Abbott’s complaint. Abbott appealed, and the Court of Appeals for the Federal Circuit affirmed.

According to the opinion, Dr. Imants Lauks was once an employee of Abbott’s predessor company, but went on to start Epocal after he left that employment. Dr. Lauks has assigned all his patent rights to Epocal. Pursuant a series of employment and consulting contracts with Abbott, Dr. Lauks agreed to assign to Abbott all patent rights to any inventions he conceived while employed with Abbott. Abbott claims that the patents in questions cover inventions that were conceived while Dr. Lauks was employed with Abbott and therefore Abbott should have the patent rights. Epocal filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim. Epocal claimed the patents in question were conceived after Dr. Lauks’s employment terminated, therefore Abbott has no ownership.

Chief Judge Rader, writing the opinion of the court, agreed with the district court that Abbott did not have any rights to the patents and therefore, lacked standing to bring a patent infringement lawsuit. The opinion noted that the district court had concluded the terms of the most recent agreement did not cover the invention in question. Justice Bryson wrote a dissenting opinion, noting he found that contracts to be ambiguous and would have remanded for further discovery of extrinsic evidence of the intention of the parties in entering the employment contract.

Practice Tip: Employment and consultancy contracts routinely require assignment of intellectual property rights. In this case, the language of the clause in the employment/consultancy agreement changed over time. The court discussed that if the language in the first contract would have been identical to the language in the latest contract, Abbott would have had rights to the patents in question. This illustrates the importance of having an intellectual property attorney draft these clauses carefully.
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January 18, 2012

Syndicate Sales, Inc. Sues Hill’s Import, Inc. for Patent Infringement of Flower Vase

By Overhauser Law Offices, LLC

Indianapolis, IN – Patent attorneys for Syndicate Sales, Inc. of Kokomo, Indiana filed a patent infringement suit in the Southern District of Indiana alleging Hill’s Import, Inc. of Quakertown, Pennsylvania infringed design patent no. D652,342, Plateau vase with constant size neck, known as the “Harshman patent, “which has been issued by the US Patent Office.

The complaint states that the patented vase design was created by artist Trent Harshman, who has assigned all his rights to Syndicate. Syndicate’s complaint states that Hill’s has never been granted any rights to sell or import the patented vase design. The complaint alleges that Hill’s infringed the patent by importing and selling vases that utilized the patented design. Syndicate’s patent attorneys have alleged that the vases in question were manufactured in by Shangdong Yiyaun Oking Glassware Company in China. Syndicate is seeking a declaration of infringement, an injunction, damages, attorney fees and costs.

Practice Tip: Syndicate Sales’ patent purports to cover a vase having a square bottom that morphs into a rounded top with a flange. This would seem to be a common shape, and, if Hill’s import does not get the case dismissed on jurisdictional ground, it can be expected to attack the validity of the patent on grounds of “obviousness.” Also, the complaint alleges that the vases Hill’s allegedly sold came from a factory in China and include Syndicate’s UPC code. This raises an issue of whether the Chinese factory had been authorized by Syndicate to make the vases. If so, Hills may have license defense. Alternatively, Hill’s may be entitled to be indemnified by its alleged Chinese supplier.
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January 13, 2012

Northern District Denies Motion To Amend Protective Order In Patent Infringement Case Over Mobile Banking Vehicle

By Overhauser Law Offices, LLC

Fort Wayne, IN – The Northern District of Indiana has denied a Motion to Amend a Stipulated Protective Order in a patent infringement case. Romary Associates Inc. of Fort Wayne, Indiana had filed a patent infringement lawsuit in the Northern District of Indiana alleging that KIBBI LLC d/b/a Renegade Custom Coaches and Trailers, McKibbin Enterprises, Inc. and KIBBI, Inc. all of Bristol, Indiana infringed patent no. 7,475,809, MOBILE BANKING VEHICLE, which has been issued by the US Patent Office. The invention is essentially a bank branch that can be.

The parties entered a Stipulated Protective Order in February 2011. Romary had moved to have the stipulated protective order amended to have certain “strategic” information designated “Highly Confidential – Outside Attorneys’ Eyes Only.” The original protective order allows the other party’s attorneys as well as officers and employees to view confidential information. Romary now argued that KIBBI is seeking market analysis and strategic planning documents in discovery and that such document should be subject to heightened protection. Romary argued this type of disclosure was not foreseeable.

The court, in summary, held that these types of disclosures should have been foreseeable to Romary when the original protective order was entered. Therefore, the court failed to find “good cause to amend the protective order.

Practice Tip: This case raises issues of how litigation can cause trade secret protection to be impaired if a protective order is not carefully drafted. Protective orders, which can designate certain trade secrets “attorneys’ eyes only,” are intended to prevent the disclosure of trade secrets and other intellectual property.
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January 12, 2012

Update: FirePASS, Bombardier Patent Infringement Suit Over Aircraft Fire Prevention Systems Stayed Pending Patent Re-Examination

By Overhauser Law Offices, LLC

Indianapolis, IN – A patent infringement lawsuit over aircraft fire prevention systems has been put on hold until the US Patent Office completes a re-examination of the patents at issue in the case.

In June, patent lawyers for FirePASS IP Holdings and FirePASS Corporation of New York, New York filed a patent infringement lawsuit in the Southern District of Indianaalleging Bombardier, Inc. of Montreal, Canada, and Bombardier Aerospace Corporation, of Richardson, Texas, infringed four patents: No. RE 40,065, HYPOXIC FIRE PREVENTION AND FIRE SUPPRESSION SYSTEMS FOR COMPUTER CABINETS AND FIRE-HAZARDOUS INDUSTRIAL CONTAINERS; 6,418,752, Hypoxic fire prevention and fire suppression systems and breathable fire extinguishing compositions for human occupied environments; Patent No. 6,314,754, Hypoxic fire prevention and fire suppression systems for computer rooms and other human occupied facilities; and Patent No.7,207,392, Method of preventing fire in computer room and other enclosed facilities which have been issued by the US Patent Office. The complaint alleges that Bombardier sells and offers to sell products that infringe FirePASS’s patents. Specifically, FirePASS alleges that Bombardier has a contract to sell 40 CS300 aircraft to Republic Airways of Indianapolis, valued at $3.2 billion. FirePASS alleges that the aircraft contain flammability reduction means that infringe FirePASS’s patented technology. The Federal Aviation Administration has implemented new regulation requiring additional flammability reduction means to prevent fuel tank fires in aircraft.

Patent attorneys for the parties filed a joint motion requesting the stay, which was approved by the court. The motion notes that FIREPASS has filed a patent infringement lawsuit in the Eastern District of New York where the validity of the same four patents is at issue. The opposing party in that case had requested the re-examination. The judge in the New York case has also stayed that litigation pending the re-examination.

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.
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January 9, 2012

Group Dekko Inc. Sues Byrne Electrical for Patent Infringement of an Electrical Receptacle Assembly

By Overhauser Law Offices, LLC

Fort Wayne, IN – Patent attorneys for Group Dekko, Inc. of Garrett, Indiana filed a patent infringement suit in the Northern District of Indiana alleging Byrne Electrical of Rockford, Michigan infringed patent no. 7,075,769, NEXT CONNECT ELECTRICAL RECEPTABLE ASSEMBLY, which has been issued by the US Patent Office.

The complaint alleges that Byrne is infringing the patent by making, using, offering for sale or selling a product called Interlink iQ that embodies that patented technology. Group Dekko sells competitive products called Next Connect and Perimeter. These products appear to be electrical configurations for office furniture. Dekko’s patent attorneys are seeking a declaration that its patent is valid and enforceable, an injunction, damages, attorney fees and costs.

Practice Tip: The complaint filed does not contain any details about where the allegedly infringing products have been sold or offered for sale, particularly whether any sales or marketing occurred in Indiana. In order to establish personal jurisdiction over the defendant, the plaintiff must demonstrate certain minimum contacts with the jurisdiction. The plaintiff here may need to show more to obtain personal jurisdiction. The Southern District of Indiana, for example, recently dismissed a patent infringement case where all the plaintiff alleged was that the defendant had a website offering the allegedly infringing product that was accessible in Indiana.
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January 6, 2012

Wisconsin Court To Hear Simon Property Group Patent Infringement Claims Over Mobile Application For Mall Marketing: Case Dismissed from Indiana Court

By Overhauser Law Offices, LLC

Indianapolis, IN – A patent infringement suit filed in the Southern District of Indiana has been transferred to the Western District of Wisconsin. In April, patent lawyers for Simon Property Group of Indianapolis, Indiana filed a patent lawsuit against NorthMobileTech of Middleton, Wisconsin. In its complaint, Simon stated that NorthMobileTech has accused Simon of infringing NorthMobileTech’s patent, and Simon believed a patent infringement lawsuit against it is imminent. On April 20, 2011, the same day as Simon’s patent attorneys filed its suit, patent attorneys for NorthMobileTech filed a patent infringement lawsuit against Simon in the Western District of Wisconsin. Indiana Intellectual Property Law and News blogged about the case when it was filed.

Simon had filed requests to have the two lawsuits heard by the Southern District of Indiana, however, it has recently filed a motion to dismiss in the Indiana court, noting that the case in the Western District of Wisconsin was moving along quicker than the Indiana case.

The controversy is over Simon’s new application for mobile phones that allows users to access information about shopping malls and merchandise. NorthMobileTech is the owner of patent no. 7,805,130, which has been issued by the US Patent Office. This patented technology is a mobile phone application that allows shopping store and merchandise information to be transmitted to a wireless phone. According to an exhibit attached to Simon’s Complaint, a patent attorney for Fenwick Corporation, which has assigned its patent rights to NorthMobileTech, has sent a letter to Simon alleging that Simon’s mobile phone application infringes its patent. Simon’s application is called “Simon Malls – more choices.”

Practice Tip: This litigation has been quite contentious with both parties filing motions to compel discovery compliance and with Simon requesting sanctions. The parties have also briefed claim construction. The latest entry on PACER indicates that Magistrate Stephen L. Crocker will hear the parties discovery disputes tomorrow, January 6, 2012.
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