Patent Infringement

July 9, 2021

Elanco Animal Health, Inc. Sued for Alleged Patent Infringement

Indianapolis, Indiana – Apparently, Epitopix, LLC d/b/a Vaxxinova US (“Vaxxinova”) is an animal health research and development company specializing in veterinary vaccines. Vaxxinova is the owner of three patents at issue, all entitled “Immunizing Compositions and Methods of Use,” U.S. Patent Nos. 8,282,941, 7,943,150, and 7,943,151 (collectively the “Patents in Suit”). According to the Complaint, Vaxxinova produced vaccine products using the specialized technology of the Vaxxinova Patents for cattle, poultry, and swine.

Vaxxinova claims it has discussed its technology including that of the Patents in Suit with Defendant, Elanco Animal Health, Inc. (“Elanco”), during potential business negotiations. When these negotiations ceased, it appears Elanco proceeded to develop and acquire technology that allegedly infringes upon the Patents in Suit. Vaxxinova claims Elanco launched a new product family called Nuplura PH+ that allegedly infringes the Patents in Suit after Vaxxinova informed Elanco of the allegations.

Therefore, Vaxxinova is seeking damages and fees for willful patent infringement of the Vaxxinova Patents pursuant to 35 U.S.C. §§ 284 and 285.

June 30, 2021

Southern District Grants Intra-District Transfer to New Albany

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Plaintiff, Somero Enterprises, Inc. (“Somero”), originally filed suit in the Indianapolis Division of the Southern District of Indiana alleging patent infringement against Defendant, Ligchine International Corporation (“Ligchine”). Ligchine responded to the Complaint by filing a Motion for Intra-District Transfer to the New Albany Division.

Pursuant to 28 U.S.C. § 1404(a), a Court may “transfer an action filed in a proper, though not necessarily convenient, venue to a more convenient district.” According to the Court’s Order, the Court typically considers four factors: “(1) the convenience of the parties; (2) the convenience of the witnesses; (3) the situs of material events and access to proof; and (4) the interest of justice.” Order at p. 2. (citation omitted).

Ligchine argued that because Somero does not reside in the Southern District of Indiana and all of Ligchine’s offices, operations, witnesses, and evidence are located in the New Albany Division, the transfer should be granted. Somero opposed the Motion arguing that its preference for the Indianapolis Division should be given substantial deference. Further, Somero claimed its counsel would have to drive two hours more each way for in-person Court appearances which would require counsel to fly and/or stay overnight in a hotel, thereby increasing his exposure to COVID-19. However, in its Reply, Ligchine pointed out that a plaintiff’s choice of forum has diminishing importance when the selected forum is not the plaintiff’s home forum.

The Court found that while “several of the factors are neutral . . . [it is] significant the fact that none of the events giving rise to this lawsuit occurred within the Indianapolis District, that Somero’s witnesses will have to travel 9.5 hours to the Indianapolis Division in any event and only an additional 1.5 hours to the New Albany Division, and that Ligchine’s witnesses are located within the New Albany Division.” Therefore, the transfer to the New Albany Division was granted. Order at p. 11.

June 25, 2021

Local Radio Networks LLC Sued for Alleged Patent Infringement

By Overhauser Law Offices, LLC

Ft. Wayne, Indiana – Apparently, Westwood One, LLC (“Westwood”), the Plaintiff owns a large portfolio of audio products for use by its affiliated broadcast radio stations and media partners. According to the Complaint, Westwood owns U.S. Patent Nos. 7,860,448 and 7,412,203 (the “Patents in Suit”). The Patents in Suit relate to methods and computer programs for localizing broadcast content and an apparatus for operating a broadcast network, respectively.

Westwood claims it began notifying the Defendant, Local Radio Networks LLC (“LRN”), regarding its ownership of the Patents in Suit in May 2020. It appears the alleged infringement had not ceased after these communications and therefore Westwood filed suit for willful patent infringement. In addition to direct patent infringement, Westwood is claiming LRN has induced and continues to induce infringement of the Patents in Suit by knowingly inducing others to make, use, or sell products covered by the Patents in Suit. Further, Westwood claims LRN targeted former Westwood employees for employment that have knowledge of Westwood’s patented programs. Westwood is seeking damages, including treble damages, for willful infringement pursuant to 35 U.S.C. § 284 and attorneys’ fees pursuant to 35 U.S.C. § 285.

June 14, 2021

Grand Design RV of Middlebury Sues for Alleged Patent Infringement

By Overhauser Law Offices, LLC

Middlebury, Indiana – According to the Complaint, Grand Design RV, LLC (“Grand Design”), the Plaintiff, designs innovative recreational vehicle products including its line of “toy hauler” recreational vehicles. Grand Design claims the “toy hauler” invention, which depicts a raisable bed positioned above the garage in a recreational vehicle, is protected by U.S. Patent Nos. 10,046,690, and 10,654,398 (the “Grand Patents”).

Grand Design claims Defendants, Thor Industries, Inc, Keystone RV Company and Jayco, Inc., offer, make, and/or sell products that infringe the Grand Patents (the “Accused Products”). The Accused Products allegedly include the Keystone Montana High Country Toy Hauler, the Keystone Raptor Toy Hauler, the Keystone Fuzion Toy Hauler, and the Jayco Northpoint Toy Hauler. Apparently Grand Design provided notice of infringement to the Defendants, but the alleged infringement has not ceased. Therefore, Grand Design is seeking damages for patent infringement, including treble damages and attorneys’ fees pursuant to 35 U.S.C. §§ 284 and 285.

June 11, 2021

Indiana Patent Infringement Litigation: Indiana-Based Digger Specialties, Inc. Sued for Alleged Patent Infringement

By Overhauser Law Offices, LLC

South Bend, Indiana – Apparently Fortress Iron L.P. (“Fortress”), the Plaintiff, is in the business of providing innovative building products including its FortressCable V-Series steel cable railing protected by U.S. Patent No. 10,883,290 (the “‘290 Patent”). Fortress claims Digger Specialties, Inc. (“Digger”), the Defendant, has been manufacturing and selling its Westbury VertiCable aluminum railing (the “Infringing Product”) that infringes the ‘290 Patent since at least 2018. While the ‘290 Patent issued on January 5, 2021, it allegedly claimed priority to U.S. Provisional Application No. 61/979,055 filed on April 14, 2014. Fortress is claiming Digger is liable for damages, interest, and costs pursuant to 35 U.S.C. § 284.

May 27, 2021

Eli Lilly and Company Files Patent Infringement Lawsuit

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Eli Lilly and Company (“Lilly”), the Plaintiff, apparently owns by assignment U.S. Patent No. 7,772,209 (the “‘209 Patent). According to the Complaint, Shilpa Medicare Limited (“Shilpa”), the Defendant, notified Lilly on November 12, 2020 that it had submitted to the U.S. Food and Drug Administration (“FDA”) a New Drug Application (“NDA”) seeking approval to manufacture and sell its Pemetrexed Injection products (“Shilpa’s NDA Products”) prior to the expiration of the ‘209 Patent. Apparently, that notification triggered “a forty-five-day period for Lilly to bring an action for patent infringement under the FDCA.”

Lilly is seeking a judgment that Shilpa has infringed the ‘209 Patent. Further, Lilly is seeking a “judgment ordering that the effective date of any FDA approval for Shilpa to make, use, offer for sale, sell, market, distribute, or import Shilpa’s NDA Products . . . be not earlier than the expiration date of the ‘209 patent.” In addition, Lilly is seeking a preliminary and permanent injunction and a declaration that this is an exceptional case pursuant to 35 U.S.C. § 285.

March 8, 2021

Patent Infringement Case Transferred to the Southern District of Indiana

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Wonderland Switzerland AG (“Wonderland”), the Plaintiff and resident of Switzerland, originally filed suit in the Central District of California for patent infringement against Defendant, Dorel Juvenile Group, Inc. (“Dorel”), an Indiana-based company,. The Complaint asserted three claims concerning three different patents relating to car seats and strollers filed a motion to dismiss or transfer the case for improper venue.

Pursuant to 28 U.S.C. § 1404(a), “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties consented.” According to the Court’s Order, while ordinarily a “defendant must make a strong showing of inconvenience to warrant upsetting the plaintiff’s choice of forum,” “where the plaintiff is a non-resident of the forum, and/or the case has relatively little connection to the chosen forum, the Plaintiff’s choice of forum does not enjoy that type of benefit on a Section 1404(a) motion.”

The Court held that the factors for transfer weighed heavily in Dorel’s favor. Further, the Court noted that “[t]o the extent a transfer of this action to Indiana is a ‘shifting of inconveniences,’ the only ‘convenience’ factor it negates for Plaintiff is a potential relative ease of traveling from Switzerland . . . to Los Angeles over traveling from Switzerland . . . to Indiana.” Therefore, the action was transferred to the Southern District of Indiana for further proceedings and the improper venue portion of the motion was denied as moot.

February 19, 2021

WishBone Medical, Inc. Sued for Alleged Patent Infringement

By Overhauser Law Offices, LLC

Warsaw, Indiana – Apparently Orthopediatrics Corp. and Orthex, LLC (collectively “Ortho”), the Plaintiffs, own a patented method of fixing broken or deformed bones, United States Patent No. 10,258,377 (the “‘377 Patent”). Ortho claims Defendants, WishBone Medical, Inc. (“WishBone”) and Nick A. Deeter (“Deeter”), have infringed the ‘377 Patent. According to the Complaint, Deeter was an employee of Ortho from 2006 to 2013. Thereafter, Deeter apparently started WishBone in 2016.

Ortho claims WishBone’s “Smart Correction® External Fixation System” not only infringes the ’377 Patent, but that “WishBone admittedly knew of the ‘377 Patent by no later than June 2019, but proceeded to move forwarded [sic] with its infringing, copycat system.” Additionally, Ortho claims Deeter has breached his severance agreement in which he agreed not to disparage Ortho.

Ortho is seeking enhanced damages and attorneys’ fees for patent infringement pursuant to 35 U.S.C. §§ 284 and 285. Further, Ortho is seeking damages for unfair competition and false advertising under the Lanham Act. Finally, pursuant to Indiana common law, Ortho is suing Deeter for breach of contract, and both Defendants for defamation, tortious interference with contractual relationships, and tortious interference with prospective contractual relationships.

February 10, 2021

Delta Faucet Files Another Patent Infringement Suit

By Overhauser Law Offices, LLC

Indianapolis, Indiana – According to the Complaint, Delta Faucet Company (“Delta”), the Plaintiff, is a corporation involved in the business of manufacturing innovative faucets. Delta claims it owns two patents relating to “Magnetic Coupling[s] for Sprayheads,” United States Patent No. 10,669,702 and United States Patent No. 10,724,217 (collectively the “Delta Patents”). Further, Delta claims it launched products featuring the MagnaTite® Docking, protected by the Delta Patents, in 2007.

Delta claims Globe Union Industrial Corp., Gerber Plumbing Fixtures LLC and Danze, Inc. (the “Defendants”) manufacture, distribute, and/or offer magnetic docking faucets for sale. The allegedly infringing products feature “DockForce® magnetic docking technology” (the “Accused Products”). Delta claims the Accused Products infringe the Delta Patents and are seeking judgment that at least one claim of each of the Delta Patents has been infringed under 35 U.S.C. §§ 271(a) and (b). Further, Delta is seeking an injunction under 35 U.S.C. § 283 and damages pursuant to 35 U.S.C. § 284.

February 1, 2021

Southern District of Indiana’s Dismissal of Patent Infringement Case Affirmed

By Overhauser Law Offices, LLC

Indianapolis, Indiana – The U.S. Court of Appeals for the Federal Circuit affirmed the dismissal of a suit originally filed by Tenstreet, LLC (“Tenstreet”) in the Southern District of Indiana. In the original suit, Tenstreet alleged that Defendant DriverReach, LLC (“DriverReach”), infringed its rights in United States Patent No. 8,145,575 (the “‘575 Patent”) for “Peer to Peer Sharing of Job Applicant Information.”

According to the District Court Order, Tenstreet developed a product called the Xchange™, which encompasses the ‘575 Patent that facilitated job applicant verification between past and prospective commercial truck driver employers. The product also apparently allows the applicant to review and correct information before it is sent to their prospective employer. Tenstreet claimed that DriverReach infringed the ‘575 Patent by selling an employment verification product, VOE Plus Solutions. DriverReach moved to dismiss the complaint on the ground that the ’575 Patent claims ineligible subject matter under 35 U.S.C. § 101, an abstract idea.

To analyze whether a patent claims an abstract idea, the court uses a two-step framework. First, it asks whether the claims at issue are directed to a patent-ineligible concept. If yes, the second step is to “search for an ‘inventive concept’” that ensures “that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.” Alice Corp. Pty. Ltd. v. CLS Bank Int’l., 573 U.S. 208, 217 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72-73).

In this case, the Court found the invention claimed “nothing more than an abstract idea implemented on a computer.” After finding the claims directed to an abstract idea the Court proceeded to step two of the framework and found “no sufficient inventive technology to transform the abstract idea of collecting, organizing, and storing data on a generic computer into a patent-eligible application.” Therefore, the Court granted DriverReach’s Motion to Dismiss for failure to state a claim upon which relief can be granted and the Federal Circuit affirmed.

DriverReach has filed a motion seeking to recover $700,000 in attorney’s fees, claiming that this case is exceptional.

Practice Tip: According to 35 U.S.C. § 101, patentable subject matter is “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” However, the Supreme Court has held that “this provision contains an important implicit exception [:] Laws of nature, natural phenomena, and abstract ideas are not patentable.” Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013) (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 70 (2012). Continue reading