Patent Infringement

September 8, 2011

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

[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.

August 12, 2011

Lilly Wins Patent Infringement Suit Regarding Chemotherapy Drug

By Overhauser Law Offices, LLC

Wilmington, DE – Indianapolis-based Eli Lilly & Company has won patent infringement protection of the drug Lilly’s drug ALIMTA drug, which is a chemotherapy drug used to treat mesothelioma and other lung cancers. Lilly co-owns the patent with Princeton University. The lawsuit arose from an Abbreviated New Drug Application filed with the Food and Drug Administration that had been filed by Teva Parenteral Medicines of Israel, alleging APP Pharmaceuticals LLC of Schaumburg, Illinois, and Barr Laboratories of Montvale, New Jersey. Their ANDA sought approval to sell generic versions of ALIMTA prior to the expiration of the patent.

As soon as the ADNA was filed, Lilly’s patent attorneys filed a patent infringement lawsuit in the District Court of Delaware. The defendants had claimed that the ALIMTA patent, patent no. 5,344,932, N-(pyrrolo(2,3-d)pyrimidin-3-ylacyl)-glutamic acid derivatives, which has been issued by the US Patent Office, was invalid “under the doctrine of obviousness-type double patenting because the claimed invention is an obvious modification of inventions claimed in commonly-owned U.S. Patent Nos. 5,028,608 (“the ‘608 patent”) and 5,248,775 (“the ‘775 patent) in light of the relevant prior art.” The court held a five day bench trial in November 2010.

The Chief Judge Gregory Sleet wrote for the court in upholding the validity of the patent. “The court concludes that the examples found in the ‘775 patent specification do not support a finding of invalidity for obviousness-type double patenting because this case does not present a situation in which separate patents are sought for a claim to a compound and a claim to using that compound for the disclosed utility of the original compound.”

According to WISHTV.COM, Alimta was Lilly’s third best selling drug and had sales of $1.64 billion in first three quarters of 2010. The Alimta patent has been the subject of much litigation. On July 15, 2011, Lilly filed a patent infringement lawsuit regarding the same patent and against APP Pharmaceuticals, also a defendant in this case. Indiana Intellectual Law News blogged on the case here.

August 4, 2011

Federal Circuit Court Affirms Attorney Fee Award and Rule 11 Sanctions Of More Than $600,000 in Patent Infringement Case

By Overhauser Law Offices, LLC

Washington, D.C. – In an unusual decision; the Court of Appeals for the Federal Circuit has affirmed attorney’s fees and sanctions against a plaintiff who filed a meritless patent infringement lawsuit and committed other litigation misconduct. The case was appealed from the Western District of Washington, which had awarded Flagstar $489,150 in attorney’s fees and costs and $141,984 in Rule 11 sanctions.

EON-NET is a patent holding company and owning the patents at issue in this suit, patent numbers, 6,683,697, Information processing methodology, 7,075,673, Information processing methodology, and 7,184,162, Information

processing methodology, which have been issued by the US Patent Office. EON-NET had a long history of litigating claims related to these patents, including filing suit against Flagstar Bancorp, which became the decision here. Essentially, the district court had concluded that the lawsuit filed by EON-Net against Flagstar was meritless and little more than an attempt to extort a settlement from the defendants.

The appellate court found “the district court correctly construed the claims of the asserted patents, did not commit clear error in its exceptional case finding under 35 U.S.C. § 285, and did not abuse its discretion in invoking Rule 11 sanctions[.]” Therefore, the court affirmed. Judge Lourie, writing for the court, noted that “[m]eritless cases like this one unnecessarily require the district court to engage in excessive claim construction analysis before it is able to see the lack of merit of the patentee’s infringement allegations.” He further noted that Eon-Net’s settlement offer of less than 10 percent of what Flagstar spent defending its suit, “effectively ensured that Eon-Net’s baseless infringement allegations remained unexposed, allowing Eon-Net to continue to collect additional nuisance value settlements.”

Practice Tip: Federal Rule of Civil Procedure 11 allows for sanctions when a claim or defense is presented for an improper purpose such as “to harass, cause unnecessary delay, or needlessly increase the cost of litigation [,]” is a frivolous argument, or is not supported by factual evidence. Of particular note, the court may impose sanctions on the party, the party’s attorney or both. An award of sanctions under Rule 11 is rare, however, when awarded; the punishment is quite severe, as it was in this case.

August 2, 2011

Gian Biologics v. Biomet, Patent Infringement Lawsuit Over Centrifuge Tube Assembly, Transferred to the Northern District of Indiana

By Overhauser Law Offices, LLC

South Bend, IN – A patent infringement lawsuit that was originally filed in the District Court of Delaware was transferred to the Northern District of Indiana. Patent lawyers for Gian Biologics LLC of Delaware filed a patent infringement suit in the District Court of Delaware alleging Biomet, Inc. of Warsaw, Indiana infringed patent no.6,835,353 CENTRIFUGE TUBE ASSEMBLY, which has been issued by the US Patent Office.

The patent at issue is used for holding blood and separating blood product in to discrete components. The complaint alleges that Biomet makes, uses, sells, offers for sale and/or imports infringing products, namely several Biomet product lines including Plasmax Concentrator and Gravitational Platelet Separation Systems. The complaint alleges one count of patent infringement and seeks injunction, damages, attorney’s fees and costs. Gian’s patent attorneys filed the complaint in October 2010.

The case has now been transferred to the Northern District of Indiana by stipulation of the parties. It appears that initially Gian resisted transfer, and the Delaware District Court allowed limited discovery on the issue of transfer. According to the Delaware IP Law Blog, it was revealed that Gian had only been incorporated in Delaware for four months before the lawsuit was filed. The Delaware District Court had then stayed further discovery until the venue issue was resolved and noted it had doubts about whether the case should remain its court. In the parties’ stipulation agreeing to transfer, it was noted that “In order to conserve resources – and in light of the fact that the parties are engaged in a parallel patent infringement case in Germany that is scheduled for a bench trial on November 8, 2011 – Gian has concluded that the most efficient resolution would best be accomplished through a stipulated transfer at this time.”

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.

August 1, 2011

Lilly Wins Appeal Protecting Attention-Deficit Disorder Drug Patent

By Overhauser Law Offices, LLC

Washington, D.C. – Indianapolis-based Eli Lilly & Co. won a lawsuit against seven other pharmaceutical companies that sought FDA approval to sell competing drugs that would have utilized Lilly’s patented drug formula. The seven defendants, Actavis Elizabeth LLC, Sun Pharmaceuticals, Sandoz Inc., Mylan Pharmaceuticals, Apotex Inc., Aurobindo Pharma Ltd., and Teva Pharmaceuticals, had filed an Abbreviated New Drug Application (ANDA) seeking to utilize Lilly’s patented formula and claiming invalidity of Lilly’s patent, No. 5,658,590, Treatment of attention-deficit/hyperactivity disorder, which has been issued by the US Patent Office. The patented drug is marketed under the name Strattera and is used to treat Attention-Deficit Disorder.

Upon the filing of the ADNA, Lilly’s patent attorneys immediately filed this patent infringement lawsuit in the United States District Court of New Jersey. The district court sustained the ‘590 patent against the defendants’ challenges on the grounds of inequitable conduct, anticipation, obviousness, and non-enablement. However, the court held the claims invalid for lack of utility, which the court called “enablement/utility.” The Federal Circuit Court went further in protecting Lilly’s patent and upheld the patent in its entirety. The ruling ensures that Lilly’s patent will be fully enforceable through its expiration in 2017.

According to the Indianapolis Business Journal, the drug generated $577 million in sales for Lilly last year.

The case is Eli Lilly & Co. v. Actavis Elizabeth LLC et al, Case No. 2010-1500 in the Court of Appeals for the Federal Circuit, decided July 29, 2011. The opinion notes it is “nonprecedential.”
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July 15, 2011

Eli Lilly Company Sues APP Pharmaceuticals LLC for Patent Infringement of Chemotherapy Drug

By Overhauser Law Offices, LLC

Indianapolis, IN – Patent lawyers for Eli Lilly Company of Indianapolis, Indiana filed a patent infringement judgment suit in the Southern District of Indiana alleging APP Pharmaceuticals LLC of Schaumburg, Illinois infringed patent no.7,772,209 , Antifolate combination therapies, which has been issued by the US Patent Office.

The complaint states that APP has filed an abbreviated new drug application with the Food and Drug Administration seeking to sell a generic version of the drug ALIMTA, which is patented by Lilly, prior to the expiration of the patent. Lilly alleges that APP will begin to market and sell the generic drug. ALIMTA is a chemotherapy drug used to treat mesothelioma and other lung cancers. Lilly’s patent attorneys contend that the marketing and sale of APP’s generic version will infringe Lilly’s patent. The complaint alleges two counts of patent infringement and seeks a judgment of infringement, injunction, costs and attorney’s fees.

Practice Tip: This case has been filed before APP actually marketed or sold any of the infringing product. Rather, Lilly appears to have become concerned about infringement due to the new abbreviated new drug application and notice that APP provided to Lilly. It is common for a patent infringement lawsuit, seeking an injunction and declaratory judgment, to be filed after a new abbreviated new drug application is filed with the Food and Drug Administration. The Patent Act, 35 U.S.C. § 283, allows a court with jurisdiction to grant an injunction “to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.”

June 23, 2011

Bear Archery, Inc. Sues Impact Archery, Inc. for Patent Infringement of Bow Sight with Fiber Optics.

By Overhauser Law Offices, LLC

Evansville, IN – Patent lawyers for Bear Archery, Inc. of Evansville, Indiana, filed a patent infringement lawsuit alleging Impact Archery, Inc. of Alpharetta, Georgia, infringed Patent Nos. 7,159,325 and 7,343,686, both called, BOW SIGHT WITH FIBER OPTICS which has been issued by the US Patent Office.

Bear Archery owns the rights to the ‘325 and ‘686 patented bow sights. The Compliant alleges that Impact Archery “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.

This case has been assigned to Chief Judge Richard L. Young and Magistrate Judge William G. Hussmann in the Southern District Court, and assigned Case No. 3:11-cv-00079-RLY-WGH.

Practice Tip: Bear Archery has been aggressive in defending its patent rights, and appears to have been involved in about ten patent infringement lawsuits in the Southern District of Indiana since 2007.
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