Indiana Intellectual Property Law News

July 16, 2014

Indiana Patent Litigation – Stopinc AG Sues J.W. Hicks Inc. for Patent Infringement

Hammond, Indiana – An Indiana patent attorney for Stopinc Aktiengesellschaft of Hünenberg, Switzerland sued in the Northern District of Indiana alleging that J. W. Hicks Inc. of Merrillville, Indiana infringed “Slide Gate for a Container Containing Molten Metal,” Patent No. 6,422,435, which has been issued by the U.S. Patent Office.

Plaintiff Stopinc Aktiengesellschaft (“Stopinc AG”) asserts that it is the owner by assignment of Patent No. 6,422,435 (the “‘435 patent”). It charges Defendant J. W. Hicks Inc. with infringing upon the patent by, inter alia, importing into the United States and selling its product, known both as the OMEGA Slidegate Systems and also as the TITAN Slidegate, that infringes at least claims 1, 8, 11 and 12 of the ‘435 patent. Stopinc AG also asserts that J. W. Hicks Inc. has induced and contributed to the infringement of the patent by others. Finally, Stopinc AG contends that Defendant’s acts of infringement and inducement to infringe are willful, knowing and deliberate.

A single count – patent infringement – is listed in Stopinc AG’s complaint, which was filed by an Indiana patent lawyer. The Indiana court is asked for the following relief:

• An injunction prohibiting Defendant and its agents from marketing, importing, offering for sale, selling, advertising or promoting or distributing in the United States any products that infringe the ‘435 patent;
• An Order that all infringing products, as well as all means for producing, advertising or promoting those products, be destroyed;
• An Order that all infringing products already distributed be recalled;
• Damages, including Defendant’s profits, as well as for Plaintiff’s lost sales, attorney’s fees, and interest; and
• That damages be trebled.

Practice Tip: Patent infringement can be demonstrated under two general theories: literal infringement and infringement under the doctrine of equivalents. An assertion of “literal infringement” will require a showing that every element recited in a claim has identical counterpart in the accused device or method. A claim may also be infringed under the “doctrine of equivalents” if some other element of the accused device or method performs substantially the same function, in substantially the same manner, to achieve substantially the same result.

July 14, 2014

Indiana Patent Litigation: HEC Pharm Added to Effient Patent Infringement Litigation

By Overhauser Law Offices, LLC

Indianapolis, Indiana – An Indiana patent attorney for Eli Lilly and Company of Indianapolis, Indiana; Daiichi Sankyo Co., Ltd of Tokyo, Japan; Daiichi Sankyo, Inc. of Parsippany, New Jersey; and Ube Industries, Ltd. of Yamaguchi, Japan sued in the Southern District of Indiana alleging that HEC Pharm Co., Ltd. of China and HEC Pharm USA Inc. of Princeton, New Jersey (collectively, “HEC Pharm”) infringed Lilly’s patented Effient® product, Patent No. 8,404,703, which has been issued by the United States Patent Office.

This lawsuit adds another defendant, HEC Pharm, to Lilly’s Indiana patent litigation regarding Effient. In these Effient patent-defense lawsuits, Lilly et al. allege infringement of certain patents related to the pharmaceutical Effient. At issue in the litigation against HEC Pharm is only one of the Effient-related patents, 8,404,703 “Medicinal Compositions Containing Aspirin,” (the “‘703 patent”).

This complaint asserts patent infringement arising out of the filing by HEC Pharm of an Abbreviated New Drug Applications (“ANDA”) with the United States Food and Drug Administration (“FDA”) seeking approval to manufacture and sell generic versions of two pharmaceutical products – Effient 5mg and Effient 10mg tablets – prior to the expiration of the ‘703 patent. These patents cover a method of using Effient products for which Lilly claims an exclusively license.

Effient products were approved by the FDA for the reduction of thrombotic cardiovascular events in certain patients with acute coronary syndrome (ACS) who are to be managed with percutaneous coronary intervention (PCI, or angioplasty). Effient products contain prasugrel hydrochloride, which is also known as 5-[(1RS)-2-cyclopropyl-1-(2-fluorophenyl)-2-oxoethyl]-4,5,6,7-tetrahydrothieno[3,2-c]pyridin-2-yl acetate hydrochloride.

The instructions accompanying Effient products state that patients taking Effient products should also take aspirin. The use of Effient products in combination with aspirin for the reduction of thrombotic cardiovascular events in patients with ACS who are to be managed with PCI is allegedly covered by the claims of the ‘703 patent.

HEC Pharm is accused of planning to infringe the patents-in-suit by including with its products instructions for use that substantially copy the instructions for Effient products, including instructions for administering HEC Pharm’s products with aspirin as claimed in the ‘703 patent.

Plaintiffs contend that HEC Pharm knows that the instructions that HEC Pharm intends to include with its products will induce and/or contribute to others using those products in the allegedly infringing manner set forth in the instructions. Moreover, Lilly et al. also contend that HEC Pharm specifically intends for health care providers, and/or patients to use HEC Pharm’s products in accordance with the instructions provided by HEC Pharm and that such use will directly infringe one or more claims of the ‘703 patent. Thus, state Plaintiffs, HEC Pharm’s actions will actively induce and/or contribute to infringement of the ‘703 patent.

The complaint, filed by an Indiana patent lawyer, lists two counts:

• Count I: Infringement of U.S. Patent No. 8,404,703
• Count II: Declaratory Judgment of Infringement of U.S. Patent No. 8,404,703

Plaintiffs ask the court for judgment:

• That HEC Pharm has infringed the ‘703 patent and/or will infringe, actively induce infringement of, and/or contribute to infringement by others of one or more claims of the ‘703 patent;
• That, pursuant to 35 U.S.C. § 271(e)(4)(B), HEC Pharm be permanently enjoined from making, using, selling or offering to sell any of its accused products within the United States, or, where applicable, importing accused products into the United States prior to the expiration of the ‘703 patent;
• That, pursuant to 35 U.S.C. § 271(e)(4)(A), the effective date of any approval of the HEC Pharm ANDA under § 505(j) of the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 355(j)) shall not be earlier than the later of the expiration dates of the ‘703 patent, including any extensions;
• If HEC Pharm commercially makes, uses, sells or offers to sell any accused product within the United States, or, where applicable, imports any accused product into the United States, prior to the expiration of either of the ‘703 patent, including any extensions, that Plaintiffs be awarded monetary damages for those infringing acts to the fullest extent allowed by law and be awarded prejudgment interest based on those monetary damages;
• That the case be deemed exceptional under 35 U.S.C. § 285;
• That the ‘703 patent remains valid and enforceable;
• That Plaintiffs be awarded reasonable attorney’s fees, costs and expenses.

Practice Tip #1: The Effient litigation also involves Patent No. 5,288,726, “Tetrahydrothienopyridine Derivatives, Furo and Pyrrolo Analogs Thereof and Their Preparation and Uses for Inhibiting Blood Platelet Aggregation,” and Patent No. 8,569,325, “Method of Treatment with Coadministration of Aspirin and Prasugrel.”

Practice Tip #2: The FDA’s ANDA process for generic drugs has been abbreviated such that, in general, the generic drug seeking approval does not require pre-clinical (animal and in vitro) testing. Instead, the process focuses on establishing that the product is bioequivalent to the “innovator” drug that has already undergone the full approval process.

The statute that created the abbreviated process, however, had also created some interesting jurisdictional issues with respect to declaratory judgments. For an interesting look at some of the issues, see here
Continue reading

July 11, 2014

Indiana Copyright Litigation: Count in Dallas Buyers Club Copyright Lawsuits Reaches 80 Defendants

By Overhauser Law Offices, LLC

Indianapolis, Indiana – A copyright attorney for Dallas Buyers Club, LLC of The Woodlands, Texas has filed three additional complaints against Doe Defendants in the Southern District of Indiana. Two of these latest complaints include allegations against 20 separate as-yet- MV5BMTg0MDc3ODUwOV5BMl5BanBnXkFtZTcwMTk2NjY4Nw@@__V1_SX214_CR0,0,214,317_AL_.jpg unidentified Defendants, while the third lists 16 new Defendants. The Doe Defendants are accused of infringing the copyright of the motion picture “Dallas Buyers Club,” which has been registered with the U.S. Copyright Office.

The movie in question, Dallas Buyers Club, stars Matthew McConaughey (pictured) as an AIDS patient who smuggled unapproved AIDS-treatment drugs into the United States during the 1980s for his own use and to distribute to others afflicted with AIDS. The movie was nominated for six Academy Awards and won three. Matthew McConaughey and Jared Leto also won Oscars for Best Actor and Best Supporting Actor, respectively, for their performances in the movie.

These copyright lawsuits are in addition to another similar complaint filed recently by Plaintiff, wherein 24 separate Doe Defendants were sued. In these latest Indiana copyright infringement lawsuits, filed by a copyright lawyer for Dallas Buyers Club, LLC, Plaintiff asserts that the copyrighted movie was infringed by another 56 as-yet unnamed individuals, who were sued as “Doe” Defendants.

Plaintiff alleges that this copyright infringement occurred using the “BitTorrent protocol,” which is different from the standard peer-to-peer protocol. Specifically, the BitTorrent protocol enables numerous computers, even those with low bandwidth, to exchange pieces of a computer file among themselves. Each computer that has downloaded a particular piece of a file then becomes a source from which other computers may download that piece of the file. As a result, the entirety of a computer file may be disseminated across the Internet quickly without having to rely on a central source from which to download.

Plaintiff contends that Defendants in each lawsuit acted as part of a “collective enterprise” to infringe its work and that the acts constituting the infringement were “willful, intentional, and in disregard of and with indifference” to Plaintiff’s intellectual property rights.

The court is asked to enter judgment for the following monetary and injunctive relief:

• for entry of permanent injunctions providing that each Defendant shall be enjoined from directly or indirectly infringing Plaintiff’s rights in the movie;
• for judgment that Defendants have: a) willfully infringed Plaintiff’s rights in its federally registered copyright pursuant to 17 U.S.C. §501; and b) otherwise injured the business reputation and business of Plaintiff;
• for actual or statutory damages pursuant to 17 U.S.C. §504 in an amount to be determined at trial;
• for an Order of Impoundment under 17 U.S.C. §§503 and 509(a) impounding all infringing copies of the movie that are in Defendants’ possession or under their control; and
• for attorneys’ fees, litigation expenses, including fees and costs of expert witnesses, and other costs of this action.

Practice Tip #1:

Copyright trolling, also known as “porn trolling” when the plaintiff owns copyrights to pornographic material, has changed in the years since the practice began. Most early lawsuits were filed against tens, hundreds or even in excess of a thousand anonymous defendants. When judges such as District Judge Otis Wright made it clear that this misjoinder would not be permitted, porn trolls began filing multiple lawsuits claiming copyright infringement against single defendants.

Porn trolls also responded to this change in the judicial landscape by adding a new exhibit, “Exhibit C,” with each filing. Exhibit B to each complaint was a legally relevant listing of the Malibu Media copyrights that were allegedly infringed. However, Exhibit C listed other pornographic material – material not owned by Malibu Media – allegedly downloaded by the internet protocol address of the accused.

While the titles of Malibu Media’s copyrighted works are often fairly innocuous – “Almost Famous,” “Blonde Ambition” and “LA Plans” are among their works – the titles listed in Exhibit C were decidedly not. In response these and other Malibu Media copyright litigation tactics, one federal judge, District Judge William Conley, said, “[t]hese Internet copyright infringement cases … give off an air of extortion.” He sanctioned Malibu Media’s counsel under Rule 11 and ordered a fine of $2,200.

Practice Tip #2:

Mass misjoinder in copyright cases has also been flagged as impermissible in other, non-pornography, cases that assert copyright infringement against multiple defendants. In one recent Indiana copyright lawsuit, Magistrate Judge Denise K. LaRue, writing for the Southern District of Indiana, severed all but one defendant from the copyright infringement complaint of Richard Bell, an Indiana copyright attorney. The court also ordered Bell to pay separate filing fees for each new cause of action.

July 10, 2014

Indiana Patent Litigation: CeraMedic Sues Zimmer for Patent Infringement

By Overhauser Law Offices, LLC

South Bend, Indiana – Indiana patent lawyers for CeraMedic LLC of Plano, Texas sued for biolox picture.jpg patent infringement in the Northern District of Indiana alleging that Zimmer Holdings, Inc. and Zimmer, Inc., both of Warsaw, Indiana (collectively “Zimmer”), infringed “Sintered Al₂O₃ Material, Process for Its Production and Use of the Material,” Patent No. 6,066,584, which has been issued by the United States Patent Office.

Patent No. 6,066,584 (the “‘584 patent”) relates to the field of ceramics and concerns sintered Al₂O₃ compositions and methods for the use of such material as medical implants or tool material. Similar litigation was also recently commenced against Biomet by Indiana patent attorneys for CeraMedic.

The ‘584 patent was issued in May 2000 to Fraunhofer-Gesellschaft zur Förderung der Angewandten Forschung e.V., Germany (“Fraunhofer”), Europe’s largest application-oriented research organization. CeraMedic states that Fraunhofer, the assignee of over 1,500 U.S. patents, assigned ownership of the ‘584 patent to CeraMedic in early 2014.

CeraMedic indicates that non-party CeramTec GmbH (“CeramTec”) developed and manufactures Biolox delta, (pictured) an aluminum oxide matrix composite ceramic consisting of approximately 82% alumina (Al₂O₃), 17% zirconia (ZrO₂), and other trace elements.

The allegations Defendant Zimmer include that it “designs, develops, manufactures, offers for sale, sells, uses, distributes, and markets hip implants, many of which include” CeramTec’s Biolox product and that such actions constitute infringement of the ‘584 patent. Zimmer is accused of infringing the ‘584 patent directly, literally, and/or by equivalents.

The complaint, filed by Indiana patent counsel, lists a single count: infringement of the ‘584 patent. CeraMedic asks the court for a judgment against Zimmer determining that Zimmer has infringed and continues to infringe one or more claims of the ‘584 patent; enjoining Zimmer and its agents from further infringing the ‘584 patent; ordering Zimmer to account for and pay to CeraMedic all damages suffered by CeraMedic as a consequence of Zimmer’s alleged infringement of the ‘584 patent, together with interest and costs; trebling or otherwise increasing CeraMedic’s damages under 35 U.S.C. § 284 upon a finding that the asserted infringement by Zimmer of the ‘584 patent was deliberate and willful; and declaring that this case is exceptional and awarding to CeraMedic its costs and attorneys’ fees in accordance with 35 U.S.C. § 285.

Practice Tip:

Zimmer has been sued for patent infringement before. One patent lawsuit, Stryker v. Zimmer, is illustrative of the potential cost of willful infringement. In that litigation, the jury found that Zimmer had committed patent infringement and awarded $70 million in damages. The jury also held that Zimmer’s infringement had been willful. Plaintiff Stryker asked the court for, inter alia, attorneys’ fees and enhanced damages.

Under 35 U.S.C. § 285, if the prevailing party establishes by clear and convincing evidence that the case is “exceptional,” the court may exercise its discretion to award attorneys’ fees. The court in this case cited various factors that could be used in determining whether a case was exceptional, for example: “willful infringement, fraud or inequitable conduct in procuring the patent, misconduct during litigation, vexatious or unjustified litigation, [or] conduct that violates Federal Rule of Civil Procedure 11.” The court awarded Stryker’s attorneys’ fees, holding that that the jury’s finding of willful infringement weighed heavily in favor of such an award (“indeed, when a trial court denies attorney fees in spite of a finding of willful infringement, the court must explain why the case is not ‘exceptional’ within the meaning of the statute.”)

The court also evaluated whether an award of enhanced damages was warranted. Under 35 U.S.C. § 284, “the court may increase the damages up to three times the amount found or assessed” at trial. For this determination, the court referred to Read Corp. v. Portec, Inc. In Read, the Federal Circuit held that the “paramount determination in deciding to grant enhancement and the amount thereof is the egregiousness of the defendant’s conduct based on all the facts and circumstances.” In evaluating the egregiousness of the defendant’s conduct, courts typically rely on the nine Read factors, which are:

1. whether the infringer deliberately copied the patentee’s ideas or design;
2. whether the infringer investigated the scope of the patent and formed a good faith belief that it was invalid or not infringed;
3. the infringer’s conduct during litigation;
4. the infringer’s size and financial condition;
5. closeness of the case;
6. duration of the infringing conduct;
7. remedial actions, if any, taken by the infringer;
8. the infringer’s motivation for harm; and
9. whether the infringer attempted to conceal its misconduct.

The court found that all nine Read factors favored substantial enhancement and trebled the jury’s award of damages. The court stated, “Zimmer chose a high-risk/high-reward strategy of competing immediately and aggressively in the pulsed lavage market and opted to worry about the potential legal consequences later.” In total, Zimmer was ordered to pay Stryker over $228 million.

July 9, 2014

Indiana Copyright Litigation: Dallas Buyers Club, LLC Sues 24 Doe Defendants for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – A copyright attorney for Dallas Buyers Club, LLC of The Woodlands, Texas sued in the Southern District of Indiana alleging that 24 Doe defendants infringed the copyright of the motion picture “Dallas Buyers Club,” which has been registered with the U.S. Copyright Office.

The movie in question, Dallas Buyers Club, stars Matthew McConaughey as an AIDS patient who smuggled unapproved AIDS-treatment drugs into the United States during the 1980s for his own use and to distribute to others afflicted with AIDS. The movie was nominated for six Academy Awards and won three. Matthew McConaughey and Jared Leto also won Oscars for Best Actor and Best Supporting Actor, respectively, for their performances in the movie.

In this Indiana copyright infringement lawsuit, filed by a copyright lawyer for Dallas Buyers Club, LLC, plaintiff asserts that the copyrighted movie was infringed by 24 as-yet unnamed individuals, who were sued as “Doe” defendants. It alleges that this copyright infringement took place using the “BitTorrent protocol,” which is different from the standard peer-to-peer protocol. Specifically, the BitTorrent protocol enables numerous computers, even those with low bandwidth, to exchange pieces of a computer file among themselves. Each computer that has downloaded a particular piece of a file then becomes a source from which other computers may then download that piece of the file. As a result, the entirety of a computer file may be disseminated across the Internet quickly without having to rely on a central source from which to download.

Plaintiff contends that the 24 defendants acted as part of a “collective enterprise” to infringe its work and that the acts constituting the infringement were “willful, intentional, and in disregard of and with indifference” to plaintiff’s intellectual property rights.

The court is asked to enter judgment for the following monetary and injunctive relief:

• for entry of permanent injunctions providing that each defendant shall be enjoined from directly or indirectly infringing plaintiff’s rights in the movie;
• for judgment that defendants have: a) willfully infringed plaintiff’s rights in its federally registered copyright pursuant to 17 U.S.C. §501; and b) otherwise injured the business reputation and business of plaintiff;
• for actual or statutory damages pursuant to 17 U.S.C. §504 in an amount to be determined at trial;
• for an Order of Impoundment under 17 U.S.C. §§503 and 509(a) impounding all infringing copies of the movie that are in defendants’ possession or under their control; and
• for attorneys’ fees, litigation expenses, including fees and costs of expert witnesses, and other costs of this action.

Practice Tip: Defendants who fail to appear run a significant risk of having a default judgment entered against them. There is a significant disparity in the dollar amount awarded in default judgments against defendants in copyright infringement cases involving BitTorrent. In two separate cases, Judge William T. Lawrence ordered defendants who failed to appear to pay $20,000 for the copyright infringement that was deemed to have been admitted by the defendants’ failure to defend against the allegations. See here and here. However, in a similar case, Judge Jane Magnus-Stinson ordered an entry of default judgment against a defendant for $151,425, the full amount requested.

Overhauser Law Offices, the publisher of this website, has represented several hundred persons and businesses regarding copyright infringement and similar matters.

July 7, 2014

Indiana Intellectual Property Litigation: Joe Hand Promotions Sues Johnson’s Tavern and its Owner for Unlawful Interception and Broadcast of Championship Fight

By Overhauser Law Offices, LLC

Indianapolis, Indiana – An intellectual property lawyer for Joe Hand Promotions, Inc. of Feasterville, Pennsylvania has sued in the Northern District of Indiana alleging that Michael J. Casteel, individually and d/b/a Johnson’s Tavern and Casteel Enterprises of Galveston, Inc., both of Galveston, Indiana, unlawfully intercepted and broadcast the “Ultimate Fighting Championship 148: Anderson Silva v. Chael Sonnen” championship fight (the “Program”).

Joe Hand Promotions was granted rights to distribute the Program, which was telecast nationwide on Saturday, July 7, 2012. In the complaint against Casteel and Casteel Enterprises, both d/b/a Johnson’s Tavern, an intellectual property lawyer for Joe Hand Promotions has alleged such wrongful acts as interception, reception, publication, divulgence, display and/or exhibition,” claiming that Defendants “tortuously [sic] obtained possession of the Program” and engaged in conversion when they displayed the Program in Johnson’s Tavern.

In addition to naming the separate legal entity which allegedly owns Johnson’s Tavern, Joe Hand Promotions has also sued Casteel as an individual, claiming that he is an officer of Casteel Enterprises and that he had the right and ability to supervise the activities of Johnson’s Tavern on the night of the Program. Plaintiff asserts that those activities included the unlawful interception of its UFC Program. It further claims that Johnson’s Tavern and Casteel received financial benefit from the unlawful display of the Program.

Casteel has been accused of violating 47 U.S.C. § 605 and 47 U.S.C. § 553. The complaint also lists a count of conversion. Joe Hand Productions seeks statutory damages of $100,000 for each willful violation of 47 U.S.C. § 605; $60,000 for each willful violation of 47 U.S.C. § 553; compensatory damages on the claim of conversion; and costs and attorney’s fees. These claims have been made against both Casteel Enterprises and as personal liability claims against Casteel.

Practice Tip #1: Joe Hand Productions has sued two entities: a corporation and an individual who is allegedly a principal of that corporation. While corporations were designed, among other purposes, to limit the liability of the principals, they are not always successful in doing so. Where a principal is personally involved in certain types of illegal activity, legal mechanisms (such as a corporation or a limited liability company) that are designed to shield the principal from liability may fail to do so.

Practice Tip #2: While on the surface this appears to be a copyright case, an allegation of interception under 47 U.S.C. § 605 is a different cause of action from copyright infringement. However, a suit alleging interception does not preclude an additional lawsuit alleging different causes of action. For example, the copyright holder can also sue for copyright infringement, which could increase damages by as much as $150,000.

July 3, 2014

Indiana Patent Litigation: CeraMedic Sues Biomet for Patent Infringement

By Overhauser Law Offices, LLC

South Bend, Indiana – Indiana patent attorneys for CeraMedic LLC of Plano, Texas filed an intellectual property lawsuit in the Northern District of Indiana alleging that Biomet, Inc. of Warsaw, Indiana infringed “Sintered Al₂O₃ Material, Process for Its Production and Use of the Material“, Patent No. 6,066,584, which has been issued by the United States Patent Office.

This Indiana patent litigation concerns Patent No. 6,066,584 (the “‘584 patent”), which relates to the field of ceramics and concerns sintered Al₂O₃ compositions and methods for the use of such material as medical implants or tool material.

The ‘584 patent was issued in May 2000 to Fraunhofer-Gesellschaft zur Förderung der Angewandten Forschung e.V., Germany (“Fraunhofer”), Europe’s largest application-oriented research organization. CeraMedic states that Fraunhofer, the assignee of over 1,500 U.S. patents, assigned ownership of the ‘584 patent to CeraMedic in early 2014.

CeraMedic indicates that non-party CeramTec GmbH (“CeramTec”) developed and manufactures BIOLOX delta, an aluminum oxide matrix composite ceramic consisting of approximately 82% alumina (Al₂O₃), 17% zirconia (ZrO₂), and other trace elements.

CeraMedic then states that Defendant Biomet “designs, develops, manufactures, offers for sale, sells, uses, distributes, and markets hip implants, many of which include” CeramTec’s BIOLOX delta and that such actions constitute infringement of the ‘584 patent. Biomet is accused of infringing the ‘584 patent directly, literally, and/or by equivalents.

The complaint, filed by Indiana patent lawyers, lists a single count: infringement of the ‘584 patent. CeraMedic asks the court for a judgment against Biomet determining that Biomet has infringed and continues to infringe one or more claims of the ‘584 patent; enjoining Biomet and its agents from further infringing the ‘584 patent; ordering Biomet to account for and pay to CeraMedic all damages suffered by CeraMedic as a consequence of Biomet’s alleged infringement of the ‘584 patent, together with interest and costs; trebling or otherwise increasing CeraMedic’s damages under 35 U.S.C. § 284 upon a finding that the asserted infringement by Biomet of the ‘584 patent was deliberate and willful; and declaring that this case is exceptional and awarding to CeraMedic its costs and attorneys’ fees in accordance with 35 U.S.C. § 285.

Practice Tip:

The Federal Circuit has somewhat tempered the threat of a finding of willfulness in patent infringement in recent years. In 2007, sitting en banc, it established a heightened standard for willfulness that included an inquiry into whether a defendant’s actions were “objectively reckless” in In re Seagate Technology LLC.

In 2012, in Bard Peripheral Vascular Inc. v. W.L. Gore & Associates Inc., the Federal Circuit removed the threat of findings of willfulness by “runaway juries,” including the uncertainties inherent in the fact that such jury findings would be delayed for many years as patent litigation made its way to trial and finally to a jury verdict. In that case, the Federal Court held that the threshold determination for willful infringement is a question of law and, as such, is to be decided by the trial court.

Nonetheless, compensatory damages in patent infringement litigation can reach seven, eight or even nine figures. Given that a finding of willfulness can treble those damages, patent infringement defendants must not take assertions of willfulness lightly.

July 2, 2014

Patent Office Issues 194 Patents To Indiana Citizens in June 2014

By Overhauser Law Offices, LLC

The U.S. Patent Office issued the following 194 patent registrations to persons and businesses in Indiana in June 2014, based on applications filed by Indiana patent attorneys:

PAT. NO.	Title
D707590	Race car
D707483	Side rail
D707480	Bed frame
8762766	Distributed fault tolerant architecture for a healthcare communication system
8762289	Method, apparatus, and computer readable storage for training human searchers
8762018	Method and apparatus for clutch pressure control
8761941	Method for displaying medical data by a medical device during display failure
8761940	Time block manipulation for insulin infusion delivery
8761898	Flexible neural probe for magnetic insertion
8761787	Methods, systems and apparatus to facilitate ranked network priority
8760521	Calibration of large camera networks
8760303	Spray drift systems and methods including an input device

July 1, 2014

174 Trademark Registrations Issued to Indiana Companies in June 2014

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 174 trademark registrations to persons and businesses in Indiana in June 2014 based on applications filed by Indiana trademark attorneys:

Reg. Number	Word Mark	Click To View
4556061	THE BRIDGE	VIEW
4556052	STAY METRICS	VIEW
4556051	STAY METRICS	VIEW
4556027	ABRO	VIEW
4556007	YOUR JOURNEY BEGINS HERE	VIEW
4556005	TIER 2 CONTROLS	VIEW
4555905	THERE’S A CODE FOR THAT	VIEW
4555856	PACEMATES	VIEW
4555815	VALLEY BLOOM	VIEW
4555770	TAKING YOU WHERE BANKS WON’T.	VIEW
4555768	ACQUIRE GROW SUCCEED	VIEW
4555766	BUY. BUILD. SELL.	VIEW
4555714	CONTRIB	VIEW

June 30, 2014

Indiana Patent Litigation – Lilly Adds Panacea Biotec to List of Patent Infringement Defendants

By Overhauser Law Offices, LLC

Indianapolis, Indiana – An Indiana patent attorney for Eli Lilly and Company of Indianapolis, Indiana; Daiichi Sankyo Co., Ltd of Tokyo, Japan; Daiichi Sankyo, Inc. of Parsippany, New Jersey; and Ube Industries, Ltd. of Yamaguchi, Japan sued in the Southern District of Indiana alleging that Panacea Biotec, Ltd. of New Delhi, India (“Panacea”) infringed Effient® products, Patent Nos. 8,404,703 and 8,569,325, which have been issued by the United States Patent Office.

This lawsuit adds another defendant, Panacea, to Lilly’s Indiana patent litigation. In these “Effient” patent-defense lawsuits, Lilly et al. assert allegations of infringement of Effient. At issue in the Panacea litigation are Effient-related patents 8,404,703 “Medicinal Compositions Containing Aspirin,” (the “‘703 patent”) and 8,569,325 “Method of Treatment with Coadministration of Aspirin and Prasugrel” (the “‘325 patent”).

This complaint asserts patent infringement arising out of the filing by Panacea of an Abbreviated New Drug Applications (“ANDA”) with the United States Food and Drug Administration (“FDA”) seeking approval to manufacture and sell generic versions of two pharmaceutical products – Effient 5mg and Effient 10mg tablets – prior to the expiration of the ‘703 patent and the ‘325 patent. These patents cover two Effient products and/or methods of using Effient products and for which Lilly claims an exclusively license.

Effient products were approved by the FDA for the reduction of thrombotic cardiovascular events in certain patients with acute coronary syndrome (ACS) who are to be managed with percutaneous coronary intervention (PCI, or angioplasty). Effient products contain prasugrel hydrochloride, which is also known as 5-[(1RS)-2-cyclopropyl-1-(2-fluorophenyl)-2-oxoethyl]-4,5,6,7-tetrahydrothieno[3,2-c]pyridin-2-yl acetate hydrochloride or 2-acetoxy-5-(alpha-cyclopropylcarbonyl-2-fluorobenzy1)-4,5,6,7-tetrahydrothieno[3,2-c]pyridine hydrochloride, and is covered by the ‘726 patent.

The instructions accompanying Effient products state that patients taking Effient products should also take aspirin. The use of Effient products in combination with aspirin for the reduction of thrombotic cardiovascular events in patients with ACS who are to be managed with PCI is allegedly covered by the claims of the ‘703 and ‘325 patents.

Panacea is accused of planning to infringe the patents-in-suit by including with its products instructions for use that substantially copy the instructions for Effient products, including instructions for administering Panacea’s products with aspirin as claimed in the ‘703 and ‘325 patents.

Plaintiffs contend that Panacea knows that the instructions that Panacea intends to include with its products will induce and/or contribute to others using those products in the allegedly infringing manner set forth in the instructions. Moreover, Lilly et al. also contend that Panacea specifically intends for health care providers, and/or patients to use Panacea’s products in accordance with the instructions provided by Panacea and that such use will directly infringe one or more claims of the ‘703 and ‘325 patents. Thus, state Plaintiffs, Panacea’s actions will actively induce and/or contribute to infringement of the ‘703 and ‘325 patents.

The complaint, filed by an Indiana patent lawyer, lists four counts:

• Count I: Infringement of U.S. Patent No. 8,404,703
• Count II: Declaratory Judgment of Infringement of U.S. Patent No. 8,404,703
• Count III: Infringement of U.S. Patent No. 8,569,325
• Count IV: Declaratory Judgment of Infringement of U.S. Patent No. 8,569,325

Plaintiffs ask the court for judgment:

• That Panacea has infringed the ‘703 patent and/or will infringe, actively induce infringement of, and/or contribute to infringement by others of one or more claims of the ‘703 patent;
• That Panacea has infringed the ‘325 patent and/or will infringe, actively induce infringement of, and/or contribute to infringement by others of one or more claims of the ‘325 patent;
• That, pursuant to 35 U.S.C. § 271(e)(4)(B), Panacea be permanently enjoined from making, using, selling or offering to sell any of its accused products within the United States, or, where applicable, importing accused products into the United States prior to the expiration of the ‘703 and ‘325 patents;
• That, pursuant to 35 U.S.C. § 271(e)(4)(A), the effective date of any approval of the Panacea ANDA under § 505(j) of the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 355(j)) shall not be earlier than the later of the expiration dates of the ‘703 and ‘325 patents, including any extensions;
• If Panacea commercially makes, uses, sells or offers to sell any accused product within the United States, or, where applicable, imports any accused product into the United States, prior to the expiration of either of the ‘703 and ‘325 patents, including any extensions, that Plaintiffs be awarded monetary damages for those infringing acts to the fullest extent allowed by law and be awarded prejudgment interest based on those monetary damages;
• That the case be deemed exceptional under 35 U.S.C. § 285;
• That the ‘703 patent remains valid and enforceable;
• That the ‘325 patent remains valid and enforceable; and
• That Plaintiffs be awarded reasonable attorney’s fees, costs and expenses.

Practice Tip: In March 2014, Lilly et al. filed a 101-page complaint making similar accusations against more than thirty defendants: Accord Healthcare, Inc. USA; Accord Healthcare, Inc.; Intas Pharmaceuticals Ltd.; Amneal Pharmaceuticals LLC; Amneal Pharmaceuticals of New York, LLC; Amneal Pharmaceuticals Co. India Pvt. Ltd.; Aurobindo Pharma Limited; Aurobindo Pharma USA Inc.; Dr. Reddy’s Laboratories, Ltd; Dr. Reddy’s Laboratories, Inc.; Glenmark Generics Inc., USA; Glenmark Generics Ltd.; Glenmark Pharmaceuticals Ltd.; Hetero USA Inc.; Hetero Labs Limited; Hetero Labs Limited Unit V; Hetero Drugs Ltd.; Mylan Pharmaceuticals Inc.; Mylan Inc.; Mylan Laboratories Limited; Par Pharmaceutical Companies, Inc.; Par Pharmaceutical, Inc.; Sun Pharma Global FZE; Caraco Pharmaceutical Laboratories, Ltd.; Sun Pharma Global Inc.; Sun Pharmaceutical Industries, Ltd.; Teva Pharmaceuticals USA, Inc.; Teva Pharmaceutical Industries, Ltd.; Watson Laboratories, Inc.; Actavis plc; Actavis, Inc.; Actavis Pharma, Inc.; Zydus Pharmaceuticals USA, Inc.; and Cadila Healthcare Ltd. d/b/a Zydus Cadila.