Patent Infringement

June 20, 2011

Indian Industries Seeks Non-Infringement Declaration over Tethered Ball Practice Device Patent Owned by Swingaway Sports Products

Evansville; IN – Patent lawyers for Indian Industries, Inc. of Evansville, Indiana filed a patent infringement lawsuit in the Southern District of Indiana seeking a declaratory judgment that it is not infringing Patent No. 5,795,250 Tethered ball practice device, which has been issued by the US Patent Office and is assigned to SwingAway Sports Products, Inc. of Lubbock, Texas

The complaint states that the patent lapsed in September, 2010 due to failure to pay the required maintenance fee. Indian Industries, doing business as Escalade Sports, learned of the lapse in November 2010 and began developing a product similar to the patented technology, which culminated in sales and marketing of a product called the Springer Trainer batting trainer. The complaint states Escalade Sports marketed the new product at a trade show on June 18, 2011. The owner of SwingAway observed the new product, approached Escalade employees and alleged that the new product infringed the ‘250 patent. On that date, SwingAway contacted the US Patent Office and paid the fee for the ‘250 patent. The complaint alleges that SwingAway partners with Mid-America Sports Advantage in Jasper, Indiana.

Practice Tip: Escalade Sports claims it is entitled to the defense of absolute intervening rights, 35 USC 41(c)(2). That provision does provided that anyone who begins using, manufacturing or selling a product using the patented technology during the period when the patent has lapsed will generally not be liable for patent infringement. The court, in such cases, may allow the person to continue utilizing the patented technology, even if the patent maintenance fee is then paid.

June 17, 2011

Medical Monitoring and Paging LLC Sues Philips Electronics for Patent Infringement of System and Method for Automatic Critical Event Notification.

By Overhauser Law Offices, LLC

Indianapolis; IN – Patent lawyers for Medical Monitoring and Paging LLCof Newport, California filed a patent infringement lawsuit in the Southern District of Indiana alleging Philips Electronics North America Corporation of Andover, Massachusetts, Oridion Capnography, Inc. of Needham, Massachusetts, IWT Solutions, Inc. of Evansville, Indiana, and Oxford Biosignals, Inc. of Indianapolis,Indiana infringed Patent No. 5,942,986, System and method for automatic critical event notification, which has been issued by the US Patent Office.

The complaint alleges that each defendant manufactures, provides, sells, offers for sale, imports and/or distributes products and services that infringe the patent at issue, which is described as “a novel and clinically important critical event notification system that can continuously monitor patient statistics and lab data to detect complex critical events[.]” The complaint states that each defendant has developed and now sells its own system performing similar functions and that each defendant’s system infringes Medical Monitoring’s patent.

Practice Tip: The plaintiff here has alleged that each defendant separately developed and markets an infringing system. While two of the defendants are Indiana companies, the other two defendants are not located in Indiana, and the complaint does not state a basis for bringing the claims against them in the Indiana district court.

June 14, 2011

Heartland Recreational Vehicles LLC Sues Forest River Inc. for Patent Infringement of Travel Trailer Turning Radius

By Overhauser Law Offices, LLC

South Bend, IN – Patent lawyers for Heartland Recreational Vehicles, LLC of Elkhart, Indiana filed a patent infringement lawsuit alleging Forest River, Inc. of Elkhart, Indiana infringed Patent No. 7,878,545, Travel trailer having improved turning radius, which has been issued by the US Patent Office.

Both Heartland and Forest River sell travel trailers in Elkhart, Indiana. The ‘545 patent was issued to Heartland on February 1, 2011. The complaint alleges that Forest River is making, using, selling or offering for sale travel trailers, specifically the Silverback product, that infringe Heartland’s patent. Heartland seeks a declaration of infringement, an injunction, damages, treble damages, attorney’s fees and costs.

This case has been assigned to Judge Jon E. DeGuilio and Magistrate Judge Christopher A. Nuechterlein in the Northern District of Indiana, and assigned Case No. 3:11-cv-00250-JD –CAN.

Practice Tip: The Patent Act, 35 U.S.C. 287(a), does not allow a patent holder to collect damages from an infringer unless the patentee has given notice of the patent, normally by affixing the patent number on the product or packaging. In this case, the patent was issued only five months ago so there may be an issue about whether Forest River had notice. The Patent Act, 35 U.S.C. 287(a), however, provides that the filing of a patent infringement lawsuit constitutes the required notice.
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June 13, 2011

AirFx LLC Sues Custom Cycle Control Systems, Inc., J.D. Braun, Dr. V-Twin, Inc. and M.C. Advantages for Patent Infringement of Motorcycle Suspension

By Overhauser Law Offices, LLC

Indianapolis, IN – Patent lawyers for AirFx LLC of Indianapolis, Indiana filed two patent infringement lawsuits in the Southern District of Indiana alleging Custom Cycle Control Systems, Inc. of Las Vegas, Nevada, J.D. Braun, of Los Angeles, California, doing business as Goldenstate Custom Cycles, Dr. V-Twin, Inc. of Sherman Oaks, California, and M.C. Advantages, of Grimes, Iowa, infringed Patent No. 7,559,396 B2, Motorcycle air suspension system, which has been issued by the US Patent Office.

In the first case, the complaint alleges that AirFx received a defective product made by Custom Cycle Control Systems from a customer, who believed he had purchased an 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. This case has been assigned to Chief Judge Richard L. Young and Magistrate Judge Tim A. Baker in the Southern District of Indiana, and assigned Case No. 1:11-cv-00803-RLY-TAB.

In the second patent infringement suit, the complaint alleges that J.D. Braun created a motorcycle suspension system called the “Shotgun Shock” that infringes AirFx’s patent. The complaint alleges that all three defendants manufacture and sell the infringing “Shotgun Shock.” AirFx has made a claim of patent infringement against Braun, Dr. V-Twin and M.C. Advantages and an unfair competition claim against J.D. Braun, claiming that Braun has falsely told customers that he invented the patented technology.

Practice Tip: The claims alleged by AirFx seem to indicate that there is some confusion in the marketplace about the origin and inventor of the patented motorcycle suspension technology. In addition to the patent infringement claims, AirFx might consider adding trademark-related claims if any of the defendants are using AirFx’s trademarks for their sales.

June 9, 2011

U.S. Supreme Court Affirms Strong Presumption of Patent Validity in Microsoft v. i4i LP

By Overhauser Law Offices, LLC

Washington, D.C. – The United States Supreme Court has issued a decision in Microsoft v. i4i LP, against Microsoft and unanimously reaffirming that patents are presumed to be valid at the standard of clear and convincing.

Microsoft had argued for a lower standard of the presumption of validity. The decision will require Microsoft to pay i4i over $290 million in damages.

Patent attorneys for i4i brought this suit against Microsoft alleging that Microsoft infringed i4i’s patent for a method of editing computer documents. Microsoft used the patented technology in its Microsoft Word program.

June 9, 2011

Alcon Research Sues Watson Laboratories Inc for Patent Infringement of Allergy Eye Drops

By Overhauser Law Offices, LLC

Indianapolis, IN – Patent lawyers for Alcon Research Ltd of Fort Worth, Texas, Alcon Pharmaceuticals LTD of Switzerland, and Kyowa Haddo Kirin Co. of Japan filed a patent infringement in alleging Watson Laboratories Inc and Watson Pharma, Inc. of Parsippany, New Jersey, and Watson Laboratories, of Corona, California, infringed the following patent prior to the expiration:

Patent No. 5,641,805, Topical ophthalmic formulations for treating allergic eye diseases, Patent No. 6,995,186, Olopatadine formulations for topical administration and Patent No. 7,402,609, Olopatadine formulations for topical administration, which have been issued by the US Patent Office.

The Complaint alleges that Watson has filed an Abbreviated New Drug Application (“ANDA”) with the Food and Drug Administration “seeking approval to manufacture and sell a generic version of PATADAY™ ophthalmic solution,” a drug product that is covered by several patents owned by Alcon. The Complaint states that Watson sent a letter to Alcon on April 27, 2011 notifying Alcon of Watson’s ANDA and intent to manufacture and sells products covered by the ADNA. According to Alcon, Watson’s April 27 letter and ANDA stated that Alcon’s patents are invalid, unenforceable and/or will not be infringed. Alcon has made three claims of patent infringement and three claims for a declaratory judgment of infringement. Alcon’s patent attorneys are seeking an injunction, declaratory judgment, attorney’s fees and costs. Alcon has alleged that the basis for jurisdiction of the Southern District of Indiana is that Watson markets and sells drug products nationwide and in Indiana.

Practice Tip: Alcon’s patent attorneys filed this case before apparently before Watson actually sold any allegedly infringing products. Hence, they are seeking an injunction to prevent any potentially infringing sales as well as a declaration judgment of infringement, rather than monetary damages. These remedies, if granted, could prevent monetary damages that could occur if infringing products are sold. 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 7, 2011

FirePASS IP Holdings Sues Bombardier, Inc for Patent Infringement of Hypoxic Fire Prevention and Suppressive Systems in CS300 Aircraft Sold to Republic Airways

By Overhauser Law Offices, LLC

Indianapolis, IN – Patent lawyers for FirePASS IP Holdings and FirePASS Corporation of New York, New York filed a patent infringement lawsuit alleging Bombardier, Inc. of Montreal, Canada, and Bombardier Aerospace Corporation, of Richardson, Texas, infringed Patent Numbers RE 40,065, HYPOXIC FIRE PREVENTION AND FIRE SUPPRESSION SYSTEMS FOR COMPUTER CABINETS AND FIRE-HAZARDOUSINDUSTRIAL 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, Patent No.7,207,392, METHOD OF PREVENTINGFIRE 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. FirePASS seeks a declaratory judgment of infringement, damages and an injunction.

Practice Tip: According to a press release by FirePASS, the FAA adopted FirePASS’s technology and has required its use to protect fuel tanks on commercial aircraft. In this case, FirePASS claims the patent infringement occurred either “literally or under the doctrine of equivalents.” Apparently, FirePASS is taking the position that any new aircraft made that comply with the FAA’s new regulation would infringe FirePASS’s patents. The Doctrine of Equivalents “allows a court to hold a party liable for patent infringement even though the infringing device or process does not fall within the literal scope of a patent claim, but nevertheless is equivalent to the claimed invention.” The legal test, articulated in Warner-Jenkinson Co. v. Hilton Davis Chem. Co. (1997), is whether the difference between the limitation in the accused device and the limitation literally recited in the patent claim is “insubstantial.”

June 6, 2011

U.S. Supreme Court Sides with Roche in Patent Ownership Controversy

By Overhauser Law Offices, LLC

Washington, D.C. – The United States Supreme Court has issued its opinion in Board of Trustees of the Leland Stanford Junior University v. Roche Molecular Systems, a patent ownership case. The Court held that the Bayh-Dole Act,35 U.S.C. §§ 200-212, “does not automatically vest title to federally funded inventions in federal contractors or authorize contractors to unilaterally take title to such inventions.” The decision affirmed the Federal Circuit Court‘s decision below. Justice Roberts delivered the opinion, which Justices Scalia, Thomas, Kennedy, Alito, Sotomayor, and Kagen joined. Justices Breyer and Ginsberg dissented.

In this case, an inventor performed some research while he worked for Stanford University and had signed a patent ownership assignment agreement with Stanford. The inventor later left this employment and performed further research, culminating in an invention, while employed by Roche. He had also signed a patent assignment agreement with Roche. Essentially, controversy was over whether Stanford or Roche had a valid assignment of the patent rights. The Supreme Court’s decision sided with Roche.

An analysis by the SCOTUS blog noted “Of particular interest to Court watchers, the Court paid no heed in either case to the views of the Solicitor General, which usually has a high degree of success in pressing government views on the Court, especially in statutory cases, and has led much of the charge criticizing Federal Circuit doctrines in the past.”

May 31, 2011

U.S. Supreme Court Holds “Willful Blindness” Suffices for Induced Infringement Knowledge Requirement

By Overhauser Law Offices, LLC

Washington, D.C. – While unanimously agreeing that induced patent infringement liability requires knowledge that the induced acts will infringe one or more patents, the United States Supreme Court, in an 8-1 decision in the Global-Tech Appliances, Inc., v. SEB S.A. case, held that the knowledge requirement is met by “willful blindness.”

SEB S.A. is a French company specializing in home-cooking appliances. The inventor of a home-use deep fryer with external surfaces that remain cool during the frying process, SEB holds Patent No. 4,995,312, as issued by the U.S. Patent Office, for a Cooking Appliance with Electric Heating. Global-Tech Appliances, Inc. (now known as Global-Tech Advanced Innovations Inc.) is a British Virgin Islands corporation. Global-Tech subsidiary Pentalpha Enterprises, Ltd. supplied Sunbeam Products, Inc. (a U. S. competitor of SEB) with certain deep fryers having all but the cosmetic features of the patented SEB fryer. Shortly after agreeing to supply Sunbeam, Pentalpha retained an attorney to conduct a right-to-use analysis, but did not inform him that their product was based on the SEB product, and the attorney did not locate the ‘312 patent during prior art searching.

Previously in this case, a jury found that Pentalpha directly infringed the ‘312 patent and willfully induced others to infringe the patent. On an appellate challenge to the induced infringement judgment, the U.S. Court of Appeals for the Federal Circuit held that “deliberate indifference” of known risks is a form of actual knowledge and the evidence supported the conclusion that Pentalpha deliberately disregarded a known risk that SEB held a patent covering its deep fryer.
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May 31, 2011

Boston Scientific Corporation and Guidant Seeks Noninfringement Declaration of Heart Arrhythmia Treatment Patent

By Overhauser Law Offices, LLC

Indianapolis, IN – Patent lawyers for Boston Scientific Corporation of Natick, Massachusetts and its wholly-owned subsidiaries, Guidant LLC of Indianapolis, Indiana and Cardiac Pacemakers LLC of St. Paul, Minnesota, filed a lawsuit seeking a declaratory judgment that they have not infringed Patent No. 4,407,288, IMPLANTABLE HEART STIMULATOR AND STIMULATION METHOD, which has been issued by the US Patent Office. The patent lawsuit has been filed against Mirowski Family Ventures, LLC of the State of Maryland.
The patent in question is described as “a method of treating heart arrhythmia with a therapy referred to as ‘cardioversion’ administered by Implantable Cardioverter Defibrillator devices.” According to the complaint, Guidant obtained an exclusive license of the patent in question from Mirowski in 1973, which was renewed 2004. Pursuant the license agreement, Guidant was to pay a percentage of sales made based on the patented technology. In 2002, the Southern District of Indiana declared the ‘288 patent invalid in Cardiac Pacemaker, Inc. v. St. Jude Medical, Inc., No. IP 96-1718-C H/G (S.D. Ind.). This patent invalidity determination, however, was overturned by the Federal Circuit Court and then subject to further litigation, which concluded in 2010. Guidant and Mirowski had agreed to suspend payments on the license agreement while during this litigation, and Guidant, in its complaint, states that it has now paid what is due under the license agreement. According to the complaint, Mirowski has sent letters to Guidant accusing Guidant of breaching the license agreement and patent infringement. Boston Scientific and Guidant seek a declaratory judgment of noninfringement, a declaratory judgment of satisfaction of royalty obligation, and a declaratory judgment of no breach of contract.
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