Articles Posted in Patent Infringement

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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.GroupDekkoPicture.jpg 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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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 accusedSimonMalls.jpg 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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Washington, D.C. – The U.S. International Trade Commission announced that it will revisit a ruling by an administrative law judge finding that Apple had not infringed four of HTC’s patents. In May 2010, patent attorneys for HTC filed a complaint with the ITC alleging that Apple’sApple.jpg IPods, IPhones and IPads infringe upon HTC’s patents. HTC asked the commission to ban all imports of IPods, IPhones and IPads. In July, the ALJ issued a 200+ page ruling finding no patent infringement. Friday’s decision by the ITC will only review one of the four patents that HTC claims has been infringed. Now a panel of six commissioners will look at whether that patent was infringed.

Reuters.com described the case as “a proxy for the larger fight for market share between Google Inc’s Android cellphones and tablets, many of which HTC makes, and Apple’s products.” Patent attorneys for Apple have filed a similar complaint with the ITC and in the U.S. District Court of Delaware alleging that HTC’s smart phones infringe Apple’s patents.

Practice Tip: As the Reuters.com’s story points out, Apple, Samsung, HTC, Microsoft and Motorola all have current patent infringement litigation pending over smart phone technology. Expect to hear more about patent infringement cases involving smart phones.
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New York, NY – 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. Monsanto.jpgThe plaintiffs are farmers who do not want their organic seeds contaminated by the transgentic or genetically modified seeds that are produced and patented by Monsanto. The feared contamination occurs when organic seeds come into contact with genetic material from transgentic seeds through natural pollination processes, such as the wind blowing transgentic pollen to a organic farm nearby . The plaintiffs allege 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 seek a declaratory judgment that all of Monsanto’s transgentic seed patents are invalid as injurious to public health and for numerous other reasons.

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. Monsanto also states that it has issued a public statement declaring that its patent attorneys will not file patent infringement lawsuits against farmers who’s crops are inadvertently contaminated by its patented seeds. Monsanto is being represented by former U.S. Solicitor General Seth Waxman.

Briefing on the motion to dismiss was completed in late August so a decision could be expected at any time. An amicus curiae brief in support of plaintiffs has also been filed.

Practice Tip: Monsanto is an aggressive litigant in defending its intellectual property rights and has sued numerous Indiana farmers. Monsanto recently won the appeal of the Southern District of Indiana‘s decision against an Indiana farmer in patent infringement lawsuit, which Indiana Intellectual Property Law and News blogged about here: US Court of Appeals for the Federal Circuit Affirms the Southern District Court of Indiana’s Decision Holding Indiana Farmer Infringed Soybean Seed Patents.
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Indianapolis, IN – A patent infringement judgment from the Southern District of Indiana will be reviewed by the Federal Circuit Court of Appeals. In May, Chief Judge Richard L. Young of the Southern District of Indiana issued a verdict and judgment in favor of plaintiffs Alcon Research Ltd., Alcon Laboratories, Inc., both of Fort Worth, Texas and Hakko Kirin Co., Ltd. (f/k/a Kyowa Hakko Kogyo Co., Ltd.) of Tokyo, Japan, after a bench trial on the plaintiff’s patent infringement claims against Apotex, Inc., of Ontario, Canada and Apotex Corp. Weston, Florida. Alcon filed a complaint alleging Apotex infringed patent no.5,641,805, TOPICAL OPHTHALMIC FORMULATIONS FOR TREATING ALLERGIC EYE DISEASES, which has been issued by the US Patent Office.

Chief Judge Young presided over a bench trial April 26, 2010 to May 7, 2010, and final arguments were presented to the court on August 3, 2010. The Court found that plaintiffs had “proven, by a preponderance of the evidence, that the Defendants’ generic equivalent of Plaintiffs’ patented allergy topical ocular medication, Patanol.jpgPatanol®;, infringed claims 1-8 of the ‘805 patent[,]” and that the defendant failed to show, by preponderance of evidence, that the patent claims were invalid. The court also found that the defendants failed to prove, by preponderance of evidence, that the ‘805 patent is unenforceable due to inequitable conduct.

Apotex has appealed the case to the Federal Circuit Court of Appeals (docket number 2011-1455). Apotex’s brief was filed on October 3, 2011, and Alcon’s brief is due on December 23, 2011.

Practice Tip: One of the defenses raised by Apotex was to claim the patent was unenforceable due to inequitable conduct. Apotex claimed that one of the inventors of the ‘805 failed to disclose results of certain tests and other data in the patent application. Apotex claimed the inventor as well as the attorney who filed the patent application violated their duty of candor to the PTO, which is imposes pursuant federal regulations 37 C.F.R. § 1.56(c). Alcon, however, presented evidence that the tests in question were believed to be inconclusive and that the inventor simply forgot about another test. Under the totality of circumstances, the court found that a finding of deceptive intent was not warranted. The court, therefore, declined to find that the patent should not be enforceable under the theory of inequitable conduct.

In addition, the court held that Apotex could not raise an additional theory of invalidity – invalidity for lack of a written description – until after the trial. The court found that the late disclosure had prejudiced the plaintiff and therefore refused to consider the new theory.
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Washington, D.C. – The U.S. Department of Justice and National Crime Prevention Council have launched a new website NCPC.jpgdesigned to educate the public about intellectual property theft. The site focuses on four types of criminal intellectual property theft: counterfeit drugs, pirated products, fake consumer goods, and gangs and organized crime. The site provides background on the extent of the intellectual property theft in the United States and the impact on the economy. For example the site states “More than 250,000 more people could be employed in the U.S. automotive industry if it weren’t for the trade in counterfeit parts.”

The website is part of a larger campaign by the Department of Justice to raise public awareness about intellectual property theft. U.S. Attorney General Eric Holdergave a speech earlier this week to launch the campaign. Attorney General Holder stated “For far too long, the sale of counterfeit, defective, and dangerous goods has been perceived as “business as usual.” But these and other IP crimes can destroy jobs, suppress innovation, and jeopardize the health and safety of consumers.”

Practice Tip: Intellectual property attorneys may find the new website’s links to resources as well as instructions on where to report intellectual property theft useful.

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Indianapolis, IN – The Southern District of Indiana has dismissed a patent infringement lawsuit finding a lack of personal jurisdiction over a California company accusing of patent infringement. Patent lawyers for AirFx LLC of Indianapolis, Indiana filed a patent infringement lawsuit in the Southern District of Indiana alleging J.D. Braun, of Los Angeles, California, doing business as Goldenstate Custom Cycles, Dr. V-Twin, Inc. of Sherman Oaks, California, infringed Patent No. 7,559,396 B2,AirFXPicture.jpg Motorcycle air suspension system, which has been issued by the US Patent Office. Indiana Intellectual Property Law and News blogged about the case when it was filed in July.

The California defendant moved to dismiss the complaint, arguing that the court lacked personal jurisdiction. Patent attorneys for AirFX had argued that the Indiana district court had personal jurisdiction because the company had a website that was accessible in Indiana and listed an Indiana store where its products could be purchased. Judge William T. Lawrence, writing for the court, held that “the mere existence of nationally-accessible websites is a poor foundation on which to base personal jurisdiction.” Thus the court dismissed the case with prejudice.

Practice Tip: This case reiterates that simply having a website that is accessible within a district does not create personal jurisdiction. In order to achieve personal jurisdiction, the plaintiff must establish “minimum contacts” with the district.
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Newark, NJ – Patent attorneys for Howmedica Osteonics Corp. Mahwah, New Jersey Stryker.jpgand Stryker Ireland Limited of Cork, Ireland filed a patent infringement suit in the District of New Jerseyalleging DePuy Orthopaedics Inc. of Warsaw, Indiana infringed patent no. 6,475,243, Acetabular cup assembly with selected bearing; which has been issued by the US Patent Office.

The complaint states that Howmedica and Stryker are joint assignees of the ‘243 patent. The complaint alleges that DePuyDepuy.jpg is currently marketing two products that infringe the ‘243, specifically the Pinnacle® and Duraloc® Acetabular Cup Systems. The complaint also alleges that by offering these products for sale, DePuy causes or encourages others to infringe the ‘243 patent by creating medical literature and providing training to healthcare providers about its infringing products and methods. The complaint seeks a finding that DePuy’s products infringe the ‘243 patent, an injunction, and damages.

Practice Tip: The plaintiffs have brought this case in New Jersey District Court against an Indiana company. The complaint states that personal jurisdiction over the Defendant is based upon the “Defendant has infringed Plaintiff’s patent in this district, regularly conducts business within this district, and its activities have targeted this district.” These are fairly generic and non-specific allegations to give rise to personal jurisdiction. If DePuy challenges jurisdiction, the plaintiffs may have to demonstrate more specific facts to successfully establish personal jurisdiction.
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London, U.K. – The Supreme Court of the United Kingdom has ruled against Indianapolis-based Eli Lilly & Company in a patent dispute. Lilly had challenged the validity of the patent of Human Genome Sciences, Inc., of Rockville, Maryland that covers the gene sequence of a protein called Neutrokine-α. lilly.jpgLilly had challenged the patent based on the fact that there is no known use of the protein. Thus, Lilly argued, the gene sequence was not patentable due to a lack of industrial application.

According to the Indianapolis Business Journal, Lilly continues to maintain the patent is invalid. The IBJ quoted a Lilly statement as stating “Human Genome Sciences seek to foreclose a whole area of research in a way that is not only harmful to the industry, but would ultimately and unjustifiably hinder the future development of new medicines.”

Practice Tip: The Court’s decision was based upon the European Patent Convention and United Kingdom patent doctrine requiring a patentable invention be susceptible to industrial application, which is similar to the U.S. patent doctrine of utility. The Court’s decision here holds that the U.S. doctrine of utility creates a higher bar to patentability that the E.U. and U.K. doctrine. The opinion explicitly rejected U.S. cases on the doctrine, including Brenner v Manson, 383 U.S. 519 (1966) and in re Fisher, 421 F.3d 1365 (2005).

 

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Evansville, IN – Parents try to protect their children from playground hazards. Now there is a new threat to watch out for – patent infringement.

Patent lawyers for Plaintiff, INDIAN INDUSTRIES, INC. d/b/a Escalade Sports of Evansville, IN, have sued Defendant RAINBOW PLAYSYSTEMS, INC. of Brookings, South Dakota alleging it has infringed patent no. 8,002,642, Thumbnail image for Playground.jpgPLAYSET SYSTEM COMPONENTS, which has been issued by the US Patent Office.

The Complaint alleges that Rainbow’s “Turbo Sunshine Castle, Turbo Sunshine Clubhouse, Rainbow Castle Supersized, and King Kong Quarter Turned Club Playsets” infringe Indian’s “curved rail panels” feature. Although parents seek to protect their children from “playground injuries,” Indian alleges that the accused playsets cause it “irreparable injury.”

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Indiana Intellectual Property: IP Litigation, Patents, Trademarks, Copyrights
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