Indiana Intellectual Property Law News
Lafayette, Indiana — Diamond Back Gutter Covers, Inc. (“Diamond Back”) of Lafayette, Indiana and Daniel E. Feldhaus (“Feldhaus”) of Monticello, Indiana sued Midwest Enterprises of Saint Clair, Missouri alleging infringement of its “Gutter Debris Cover,” Patent No. 7,627,991, (the “‘991 Patent”) which has been issued by the U.S. Patent Office.
Diamond Back manufactures and sells products related to the protection of gutter and drainage systems. Diamond Back states that Midwest Enterprises is in a similar business and also does business under the name E-Z Products.
A complaint against Midwest Enterprises was filed by patent attorneys for Diamond Back. It focuses on Midwest Enterprises’ EZ Double Lock gutter protectors, which Diamond Back asserts infringe upon the ‘991 Patent. That patent, for a Gutter Debris Cover, was issued to Feldhaus in December 2009; Diamond Back is licensed to use the patent.
Specifically, the complaint asserts that Midwest Enterprises has been and still is infringing the ‘991 Patent by making, selling and/or using a gutter-protection system embodying one or more of the patented inventions or by inducing others to infringe the ‘991 Patent.
In June 2012, correspondence to Midwest Enterprises alerted them that Diamond Back believed that they were infringing. Diamond Back claims that Midwest Enterprises’ actions which continued after having received notice, constitute willful conduct in disregard of its rights in the ‘991 Patent.
Diamond Back asserts that this is an exceptional case as defined by 35 U.S.C. 285. It is asking the court for an injunction; for the destruction of infringing goods; for the destruction of items relating to the making and marketing such goods; for corrective advertising; for damages, including treble damages; and for attorneys’ fees.
Practice Tip: If a court finds that a patent has been infringed upon, it may then consider the additional issue of whether the infringement was willful. Infringing behavior that continued despite an allegation of infringement can support such a finding. The determination that an infringement was “willful” can, in turn, increase damages significantly.
This case has been assigned to Judge Robert Miller, Jr. and Magistrate Judge Paul Cherry in the US District Court, Northern Indiana, Lafayette Division and assigned Case No. 4:13-cv-00046-RLM-PRC.