Patent Infringement

October 18, 2011

Federal Circuit Advisory Council Unveils a New Model Order for E-Discovery in Patent Cases

Washington, D.C. – The Federal Circuit Advisory Counsel has unveiled a new model order for e-discovery in patent infringement cases. The model order is intended to assist litigants in patent cases in dealing with electronically stored information. The Counsel notes that e-discovery is often overbroad and expensive. The Counsel noted that the advancing technology and increased reliance upon it makes e-discovery often necessary. Text of the model order is below.

Practice Tip: The Seventh Circuit Court of Appeals, which has appellate jurisdiction over the Southern District of Indiana and the Northern District of Indiana, has already an
“E-discovery” Pilot Program, which has the goal of “the early resolution of disputes regarding the discovery of electronically stored information (“ESI”) without Court intervention.”
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October 12, 2011

US Court of Appeals for the Federal Circuit Affirms the Southern District Court of Indiana’s Decision Holding Indiana Farmer Infringed Soybean Seed Patents

By Overhauser Law Offices, LLC

Washington, D.C. – The U.S. Court of Appeals for the Federal Circuit has affirmed a decision of Chief Judge Richard L. Young of the Southern District of Indiana in a patent infringement case. Patent lawyers for Vernon Hugh Bowman, an Indiana farmer, had appealed Chief Judge Young’s ruling in favor of Monsanto Company of St. Louis, Missouri. 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 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. He had also planted “Roundup Ready®” soybeans in a different area of his farm and signed the Technology Agreement.

Chief Judge Richard L. Young 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. Reuters reported on the story.

Practice Tip: Mr. Bowman argued that he did not infringement patents under the doctrine of patent exhaustion. Specifically, he argued that no patent rights were attached to the “commodity seeds” since planters could sell the seeds to grain elevators without infringing the patent rights or technology agreement. Patent exhaustion in the context of second generation seeds has already been subject of two federal circuit court opinions: Monsanto Co. v. Scruggs, 459 F.3d 1328 (Fed. Cir. 2006) and Monsanto Co. v. McFarling, 302 F.3d 1291 (Fed. Cir. 2002).
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October 11, 2011

Court Dismisses Suit Seeking Declaration of Non-Infringment Bio-Waste Disposal Patents Owned by Biosafe Engineering of Brownsburg, Indiana

By Overhauser Law Offices, LLC

Pittsburg, PA – Judge Nora Barry Fischer of the U S District Court for Western District of Pennsylvania has dismissed a suit seeking a declaration a non-infringement of patents owned by a Brownsburg, Indiana company. Patent attorneys for Matthews International Corporation of Pittsburg, Pennsylvannia had filed a lawsuit seeking a declaration of non-infringement of patents owned by Biosafe Engineering, LLC, and Digestor, LLC of Brownsburg, Indiana. The patents at issue are patent nos. 5,332,532, Method for disposing of radioactively labeled animal carcasses, 6,437,211, and 6,472,580 Methods for treatment and disposal of regulated medical waste, 7,829,755, System and method for treating infectious waste matter, and 7,910,788, System for treating infectious waste matter, which have been issued by the US Patent Office. Patent attorneys for Matthews also made state law claims of trade libel, defamation, and tortuous interference with prospective contracts.

According to the court’s opinion, Matthews is in the cremation industry and provides “environmentally-friendly alternative to flame-based cremations” through an alkaline hydrolysis process. Biosafe is a competitor and owns patent rights to similar process of disposing various types of bio-waste, however none of its patents reference cremation of human remains. In 2008, Biosafe accused Matthews of infringing its patents. Matthews also alleges that Biosafe told prospective customers that Matthews committing patent infringement. In February 2011, Matthews filed this suit seeking a declaration of non-infringement. Biosafe had filed a motion to dismiss, which the court addresses in its memorandum opinion. The court stated the issue before it as “the patent portion of this motion challenges whether this Court has jurisdiction over a declaratory judgment action where the declaratory plaintiff cannot possibly be liable for direct infringement and no direct infringement has occurred such that the declaratory plaintiff could be found liable for indirect infringement.”

The court found that it did not have jurisdiction to issue a declaration of non-infringement because it found that Matthews had taken no steps towards direct infringement of the patents. The court also found it did not have jurisdiction over the state law defamation, libel and tortuous interference claims. The court dismissed the suit with prejudice.

Practice Tip: In its motion to dismiss, Biosafe argued that the court did not have jurisdiction because there was no “case or controversy” regarding a patent infringement claim, citing Federal Rule of Civil Procedure 12(b)(1). The legal standard for jurisdiction over a suit seeking a declaration of non-infringement of a patent has been significantly revised in recent years following the U.S. Supreme Court’s decision in MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 132 n. 11 (2007) and its progeny. The court here noted “It is, thus, insufficient in a patent case simply to plead that a declaratory defendant‘s actions have caused economic harm. Instead, under MedImmune, the Federal Circuit has found that an “adverse legal interest” requires a dispute pertaining to a legal right. Arris, 639 F.3d at 1374 (“An adverse legal interest‟ requires a dispute as to a legal right-for example, an underlying legal cause of action that the declaratory defendant could have brought or threatened to bring.”).”
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October 7, 2011

Indiana Court issues Markman Ruling in GS Cleantech v. Big River for Ethanol Processing Patents.

By Overhauser Law Offices, LLC

Indianapolis, IN – Senior Judge Larry J. McKinney of the Southern District of Indiana has issued a claim construction order in a patent infringement lawsuit. Patent attorneys for GS Cleantech Corporation of New York, New York, filed a patent infringement suit regarding patent no. 7,601,858, Method of processing ethanol byproducts and related subsystems which has been issued by the US Patent Office.

The ‘858 patent is directed to “a method of processing a concentrated byproduct of a dry milling process for producing ethanol. In its most basic form, the method comprises of recovering oil from the concentrated byproduct.” Id. col.2 l.18-22. The specification of the patent repeatedly refers to the invention as a two-step process comprised of a concentration step and a recovery step. Plaintiffs accuse Defendants’ methods of infringing “The Concentrate Terms” of the ‘858 patent.

In the order the Court construed the following terms:

Claim Term	Construction
“concentrate”/”concentrated byproduct”/ “concentrated thin stillage”.	“syrup containing water, oil, and solids resulting from the concentrating or evaporating process”.
“mechanically processing”	“to subject to a mechanical device (or devices) to effect a particular result”.
“heating and mechanically processing the concentrate/ concentrated byproduct/concentrated thin stillage to separate the oil from the concentrate/concentrated byproduct/concentrated thin stillage”	“the Concentrate Term (as construed by the Court in this Order) subjected to heat and a mechanical device (or devices) to extract a product that is substantially oil from the Concentrate Term (as construed by the Court in this Order)”.
“centrifuging the concentrate to recover oil “.	“processing the concentrate (as defined by the Court in this Order) with a centrifuge to separate the oil from the concentrate so that the oil stream coming out of the centrifuge is substantially oil and the remaining concentrate stream coming out of the centrifuge is substantially free of oil”

Practice Tip:Previous articles about this litigation have posted many times by Indiana Intellectual Property Law News including:

GS Cleantech Files Patent Infringement Lawsuit Against Flottweg in Indiana

Multiple Patent Infringement Suits Brought by Greenshift Consolidated in Indiana

GS CleanTech Sues Iroquois Bio-Energy for Patent Infringement

Cardinal Ethanol Sued by GS Cleantech for Patent Infringement

September 13, 2011

Bear Archery Files Another Patent Infringement Suit Over Bow Site with Fiber Optics – This Time, Against Vital Hunting

By Overhauser Law Offices, LLC

Evansville, IN – Patent lawyers for SOP Services of Las Vegas, Nevada and Bear Archery of Evansville, Indiana filed a patent infringement suit in alleging Vital Hunting Gear, Inc. of Lexington, KY infringed patent no. 7,159,325 and 7,343,686, BOW SIGHT WITH FIBER OPTICS, which has been issued by the US Patent Office.

This is the second suit brought by Bear Archery’s patent attorneys in the last 3 months asserting infringement of these two patents. Another suit filed in June, 2011 is reported here, and about eight other suits have been filed in the last four years.

As with the June 2011 complaint, the Complaint alleges that the defendant “has manufactured and continues to manufacture, use, sell, offer to sell and distribute fiber optic sights which infringe certain claims of the Patents-In-Suit.” Bear Archery seeks a declaratory judgment, injunction, impounding order, damages, costs, and attorney’s fees. In addition, the complaint also includes a trademark infringement claim; Bear Archery alleges that is “famous” WHISKER BISCUIT mark is infringed by Vital Hunting’s use of the term TEFLON BISCUIT. Although Bear Archery’s trademark attorneys stated in the compliant that “A true copy of registration 3,833,665 is attached as Exhibit D” [to the complaint], registration 3,833,665 is for an INFINITY MAX logo, and is owned by George A. Atkinson. This appears to have nothing to do with the claim against Vital Hunting.

Note: On August 31, 2011, Bear Archery’s patent infringement attorneys dismissed the case they filed in June 2011 against Impact Archery involving the same two patents.
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September 9, 2011

Southern District of Indiana Issues Markman Ruling in Cook Inc. v. Endologix Patent Infringement Case Over Aortic Stent

By Overhauser Law Offices, LLC

Indianapolis, IN – The Southern District of Indiana has issued a claim construction order in a patent infringement lawsuit. Cook Incorporated, of Bloomington, Indiana, had filed a patent infringement lawsuit in the Southern District of Indiana against Endologix, Inc., of Irvine, California. The patents at issue are owned by Cook and are patent nos. 5,035,706, PERCUTANEOUS STENT AND METHOD FOR RETRIEVAL THEREOF and 5,755,777, EXPANDABLE TRANSLUMINAL GRAFT PROSTHESIS FOR REPAIR OF ANEURYSM, which have been issued by the US Patent Office.

The patents at issue are medical devices that are used to treat abdominal aortic aneurysms, which are caused by the weakening of the aorta. The patented technologies are stents that strengthen the walls of the aorta and delivery systems. Cook alleges that Endologix’s Powerlink product infringes its patents. On April 15, 2011, the court held a Markman hearing to determine whether the patents cover the alleged infringer’s product. The parties disputed whether certain features of Endologix product were covered by Cook’s patents and the meaning of specific terms in the patent’s claims. Judge Pratt’s order set out the meaning of over thirty the disputed claim terms.

According to Yahoo Finance, Endologix has interpreted the rulings to be favorable.

Practice Tip: As the court described in its opinion, “[i]n order to win a patent infringement suit, a plaintiff must establish that the patent claim “covers the alleged infringer’s product or process.” Markman, 517 U.S. at 374 (citation and internal quotations omitted). Consequently, the first step in an infringement analysis involves determining the meaning and the scope of the words of the patent’s claims.” While resolution of disputed claim terms, such as what occurred in this opinion, does not resolve the controversy entirely, it is a significant step.

September 8, 2011

Patent Claims for Catalytic Convertor Manufacturing Method Construed in BASF Corp. v. Aristo, Inc.

By Overhauser Law Offices, LLC

[Disclosure: Overhauser Law Offices, LLC, the publisher of this website, represents a party in this litigation]

Chief Judge Philip P. Simon for the Northern District of Indiana has construed the claims of Patent No. 5,866,210, METHOD FOR COATING A SUBSTRATE.

The ‘210 patent describes a method of coating substrates such as those used in catalytic converters. Catalytic converters are typically found in automobile and truck engines, and their purpose is to reduce or remove harmful emissions from engine exhaust. The type of catalytic converter relevant here is principally composed of a core – or substrate – which sits inside a metal housing. The substrate is a single unit (a monolithic substrate) that has a number of honeycomb-like channels running parallel to each other within the metal frame. Through various methods, the inner walls of these channels are coated with a catalyst slurry made of precious metals. As engine exhaust flows through the substrate’s channels, the precious metals coating the channels’ inner walls cause a chemical reaction that converts the harmful engine emissions into more benign substances. But because the precious metals are expensive, care must be taken to sufficiently coat the channels without wasting the catalytic slurry.

The ‘210 patent teaches a method of coating the channels of the substrate through a process called vacuum infusion coating. Through this process, one end of the substrate is partially immersed in a dip pan of catalytic slurry. The dip pan, the size and depth of which may vary, is loaded with an amount of slurry exceeding the amount of coating necessary to coat the walls of the substrate to a desired level. A vacuum is applied to the other end of the substrate, which draws the slurry of precious metals up the channels of the substrate to coat the inner walls of the substrate’s channels. The vacuum continues to suck air through the channels as the substrate is removed from the pan, and then the coating dries to the channel walls. The ‘210 patent teaches that each of the channels of the substrate are coated to the same length, creating a “uniform coating profile.” And as the specification explains, “the typical coating operation requires the immersion of one end of the substrate into the coating media followed by drying and then the insertion of the opposed end of the substrate into the coating media followed by drying and curing.”

The Court’s ruling on claim terms proposed by patent attorneys for the parties were as follows:
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September 6, 2011

Northern District of Indiana Grants Partial Summary Judgment for Chem Link Inc. in Patent Infringement Suit Over Pitch Pocket and Sealant

By Overhauser Law Offices, LLC

Fort Wayne, IN – The Northern District of Indiana has granted partial summary judgment in a patent infringement case. Geocel LLC, of Elkhart, Indiana, had filed a patent infringement lawsuit in the Northern District of Indiana seeking a declaratory judgment that patent no. RE 41,586, PITCH POCKET AND SEALANT, which has been issued by the US Patent Office and is owned by Chem Link Inc., of Schoolcraft, Michigan, is invalid and has not been infringed.

Geocel filed this patent infringement lawsuit seeking a declaratory judgment that some of claims in the ‘586 patent were invalid and that Geocel had not infringement the patent. Specifically, Geocel alleged claims 21-25 violate the rule against recapture based upon the fact that Chem Link had previously applied for a patent of similar technology that had been repeatedly rejected by the U.S. Patent Office. The issue in this summary judgment decision was whether claims 21-25 of the ‘586 patent violate the rule against recapture, which “prevents a patentee from regaining through reissue subject matter that he surrendered in an effort to obtain allowance of the original claims.” The court here concluded that the claims did not violate the rule against recapture, and therefore granted partial summary judgment in favor of Chem Link, indicating that the patent is valid. There are still unresolved issues in the case and it remains on the docket.

Practice Tip: As the court explained, Title 35 of the United States Code, Section 251 provides in part that: “Whenever any patent is, through error without any deceptive intention, deemed wholly or partly inoperative or invalid . . . by reason of the patentee claiming more or less than he had a right to claim in the patent, the Director shall, on the surrender of such patent and the payment of the fee required by law, reissue the patent for the invention disclosed in the original patent, and in accordance with a new and amended application, for the unexpired part of the term of the original patent. No new matter shall be introduced into the application for reissue.” The rule against recapture “prevents a patentee from regaining through reissue subject matter that he surrendered in an effort to obtain allowance of the original claims.” MBO Labs., Inc. v.Becton, Dickinson & Co., 602 F.3d 1306, 1313 (Fed. Cir. 2010) (quoting Hester Indus., Inc. v.Stein, Inc., 142 F.3d 1472, 1480 (Fed. Cir. 1998)).
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August 30, 2011

Hill-Rom Services, Inc. Sues Stryker Corporation for Patent Infringement of Hospital Bed Systems, Case Transferred to Southern District of Indiana

By Overhauser Law Offices, LLC

Indianapolis, IN – A patent infringement case originally filed in the Western District of Wisconsin has been transferred to the Southern District of Indiana. Patent lawyers for Hill-Rom Services, Inc of Batesville, Indiana filed a patent infringement suit alleging Stryker Corporation doing business as Stryker Medical and Stryker Sales Corporation of Kalamazoo, Michigan infringed patent numbers 5,771,511, Thumbnail image for Patent Picture.jpg Communication network for a hospital bed, 7,237,287, Patient care bed with network, and seven other hospital bed communication patents which has been issued by the US Patent Office.

The nine patents at issue are communications systems and adjustment systems for hospital beds. The complaint alleges that Stryker manufactures and offers for sale three lines of hospital beds, InTouch, S3, and GoBed II, which infringe Hill-Rom’s patents. Stryker filed a motion to transfer the case to the Southern District of Indiana, which was granted on August 15.

Practice Tip: 28 U.S.C. 1404 allows transfer of a case from one district court to another by order of the court or by stipulation and consent of the parties. It appears that Stryker argued that the Southern District of Indiana was a more convenient and a less expensive jurisdiction to litigate this case. One of Stryker’s attorneys filed declaration with the estimated travel expenses to the Western District of Wisconsin. Since the Southern District of Indiana is the plaintiff’s home district in this case, it is hard to argue that transfer would cause prejudice to the plaintiff.

August 16, 2011

Alleging Infringement of Container Patent, Mead Johnson Sues Nestle and Gerber

By Overhauser Law Offices, LLC

Evansville, IN – Through its patent attorneys, Mead Johnson Nutrition Co., of Glenview, Illinois, has filed a patent infringement lawsuit against Nestle S.A. of Switzerland; Nestle USA Inc. of Glendale, California; and Gerber Products Co. d/b/a/ Nestle Infant Nutrition of Florham Park, New Jersey. The complaint alleges infringement of U.S. Patent No. 7,040,500, which is titled “Container and Scoop Arrangement.” The ‘500 patent is directed to a container for housing granulated products which includes a recessed base and, for easy product removal, a circumferential channel capable of receiving a scoop.

The patent lawyers for the plaintiff Mead Johnson point to two Internet postings, both made in March of 2011, announcing Gerber’s EASYSCOOP™ plastic packaging and the new packaging to be used for Gerber’s GOOD START® infant formula. Alleging that the EASYSCOOP™ packaging is currently in commerce and directly infringes the ‘500 patent, the plaintiff also includes in its complaint counts claiming that the defendants have induced infringement by third-parties through offering the GOOD START® product in the EASYSCOOP™ container for sale, selling it, and advertising it to retailers and consumers. The plaintiff seeks a permanent injunction against the defendants as well as a tripling of damages based on alleged willful infringement.

Practice Tip: U.S. patent law provides that making, using, selling, offering to sell, or importing a patented invention is direct patent infringement. In addition, 35 U.S.C. § 271(b) provides that “[w]hoever actively induces infringement of a patent shall be liable as an infringer.” Thus, a holder of a method patent could have an inducement claim against a product manufacturer if the patent is infringed by consumers using the manufacturer’s product. Under the latest precedent of the Federal Circuit (the federal appeals court with jurisdiction over appeals from patent trials and Patent Office proceedings), the standard for inducing patent infringement requires a showing of actual knowledge of a patent or “willful blindness” to the existence of one.