Patent Infringement

August 1, 2011

Lilly Wins Appeal Protecting Attention-Deficit Disorder Drug Patent

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 The opinion notes it is “nonprecedential.”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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June 20, 2011

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

By Overhauser Law Offices, LLC

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.”