Indiana Intellectual Property Law News

May 9, 2012

U.S. Supreme Court Invites Solicitor General to Brief Patent Infringement Case Against Indiana Farmer Over Second Generation Seed

Washington, D.C. – The United State Supreme Court has invited the U.S. Solicitor General to file a brief expressing the view of the United States government on a patent infringement case that has been submitted to the Court on a petition of certiorari. Patent lawyers for Indiana farmer Vernon Hugh Bowman have filed a petition for certiorari requesting that the U.S. Supreme Court review the adverse decision of the U.S. Court of Appeals for the Federal Circuit, which held that Bowman had infringed the patents of the Monsanto Company of St. Louis, Missouri by using second generation seeds.

In 2007, patent attorneys for Monsanto had filed a patent infringement lawsuit in the Southern District of Indiana alleging that Mr. Bowman infringed patent no. 5,352,605, Chimeric genes for transforming plant cells using viral promoters and RE39,247E, GLYPHOSATE-TOLERANT 5-ENOLPYRUVYLSHIKIMATE-3-PHOSPHATE SYNTHASES, which has been issued by the US Patent Office. The patents at issue cover different aspects of genetically-modified “Roundup Ready®” soybeans that are resistant to certain herbicides, including Monsanto’s Roundup® product.

According to the Federal Circuit Court’s opinion, all growers of the Roundup Ready soybeans must sign a limited use license, called a Technology Agreement. The agreement restricts the use of the seed to a single season and does not allow the grower to save any seed from the crop produced to plant the next season. However, the agreement allows growers to sell the second-generation seeds to local grain elevators as “commodity seeds.” Farmer Bowman purchased some of these commodity seeds, planted and produced a crop from them. Mr. Bowman then retained some of the seeds from the commodity seed crop and replanted them the next year.

Chief Judge Richard L. Young of the Southern District of Indiana found that Farmer Bowman had infringed the Monsanto’s patents and entered a judgment in the amount of $84,456.20 in favor of Monsanto. The Federal Circuit Court affirmed. Mr. Bowman’s petition of certiorari asked the Court to review this decision. At this point, the Supreme Court has not decided whether it will hear the merits of the case.

Practice Tip: Fewer than 2% of certiorari petitions to the U.S. Supreme Court are accepted for review by the Court. The fact that the Court has requested the U.S. Solicitor General to brief this case suggests that the Court is taking interest in Bowman’s petition.

May 3, 2012

138 Trademark Registrations Issued to Indiana Companies in April, 2012

By Overhauser Law Offices, LLC

The US Trademark Office issued the following 138 trademark registrations to persons and businesses in Indiana in April, 2012, based on applications filed by Indiana Trademark Attorneys:

	Registration No.	MARK
1	4133431	INDIANA HAND TO SHOULDER CENTER	VIEW
2	4132040	CHAIRS	VIEW
3	4131967	EV-N-SPRED	VIEW
4	4131894	KEYMARK	VIEW
5	4131738	S25 SPRAY-PRO	VIEW
6	4131665	TAKING ENERGY IN A NEW DIRECTION	VIEW
7	4131578	CLD	VIEW
8	4131522	BLASTMEDIA	VIEW
9	4131326	PR PRECISION RINGS INCORPORATED	VIEW
10	4131155	ASSASSIN HTPC	VIEW
11	4131035	PEOPLE FOR URBAN PROGRESS	VIEW
12	4131029	BE ADVISER	VIEW
13	4131015	VIPER	VIEW
14	4131012	DRIVEVELOCITY	VIEW
15	4131011	DRIVEVELOCITY	VIEW

May 3, 2012

Southern District Grants Partial Summary Judgment Dismissing Some Copyright Claims In Dispute Over Virgin Mary Images

By Overhauser Law Offices, LLC

Indianapolis; IN – The Southern District of Indiana has granted partial summary judgment that dismisses many of Patricia Fuller a/k/a Sister Joseph Therese’s claims in a lawsuit over the physical and intellectual property rights to certain images and statues of the Virgin Mary, which are titled Our Lady of America. Intellectual property attorneys for Kevin B. McCarthy of Indianapolis, Indiana, Albert H. Langsenkamp, Carmel, Indiana and BVM Foundation, Inc. of Batesville, Indiana had filed a lawsuit in the Southern District of Indiana making several claims against Patricia Ann Fuller, also known as Sister Joseph Therese of Fostoria, Ohio and John Doe of Ohio. Ms. Fuller apparently has counterclaimed claiming trademark and copyright ownership of the copyrighted work OUR LADY OF AMERICA.

The court’s partial judgment dismisses Fuller’s defamation, RICO and trade dress claims as well as her copyright claims that do not relate to the copyrighted works VAu000297438, VA0000643362 and TXu000366731, which have been registered by the US Copyright Office. The court also stayed the litigation, pending a resolution from the Catholic Church of “the status/ownership of ecclesiastical property and property rights arising while Sister Ephrem was a nun[.]”

This case has convoluted facts and procedural issues. We have previously blogged about the case here.

Practice Tip: It looks like the copyright claims are going to turn on whether Ms. Fuller or the Catholic Church is the owner of the copyrights. The records of the US Copyright Office indicate that “Sister Mildred Mary Neuzil” is the copyright claimant.

May 2, 2012

Aaron Suozzi Sues Coman Publishing Company for Copyright Infringement of Photographs

By Overhauser Law Offices, LLC

Fort Wayne; IN – Copyright attorneys for Aaron Suozzi of Fort Wayne, Indiana filed a copyright infringement suit in the Allen County Superior Court alleging Coman Publishing of Durham, North Carolina infringed the copyrighted work of photographs which has been registered by the US Copyright Office. Upon the request of the defendant, the case was removed to the Northern District of Indiana.

Aaron Suozzi is a freelance photographer who provided his services to Coman Publishing. On December 8, 2011, Suozzi was informed that his services would no longer be used by Coman. He immediately demanded his photographs back and that Coman cease using his copyrighted photographs. Coman continued to use Suozzi’s copyrighted photographs; the January issue of Blue and Gold Illustrated, published on December 13, 2011 contained 16 of Suozzi’s copyrighted photographs, one being the magazine’s cover photo. According to the complaint, on December 15, Coman again informed Suozzi that they would no longer be using his services. Suozzi sent a cease and desist letter to Coman to stop using any of Suozzi’s copyrighted photographs in their magazine and on their website. Coman failed to do so. The complaint alleges Coman’s continued use of the copyrighted photographs violates Indiana Code §35-43-5-3 and that Coman’s knowing misapplication of Suozzi’s property involved substantial risk of loss to Suozzi. Suozzi seeks to recover $6,000, which includes his damages and attorney fees, plus interest, and court costs.

Practice Tip: Any case filed in state court that makes a federal claim can be removed to federal court upon request. Most intellectual property cases involve a federal claim under the federal patent, trademark or copyright laws. Here, however, the plaintiff has not explicitly stated a federal claim. However, it is clear he seeks protection of “copyrighted” photographs, which would invoke federal copyright law.

May 1, 2012

Indiana Patent Attorneys Obtain 132 Patents for Indiana Companies in April, 2012

By Overhauser Law Offices, LLC

Indiana patent attorneys obtained issuance of the following 132 patents from the US Patent Office to persons and businesses in Indiana in April, 2012:

Patent No.

Title

1

D658,345

Trash can

2

D658,207

Radiator filler neck drip tray with retention clips

3

D658,206

Radiator filler neck with integrated drip tray assembly

4

D658,205

Radiator filler neck with drip tray assembly lugs

5

8,165,944

Point of service third party financial management vehicle for the healthcare industry

6

8,164,341

System and method to measure series-connected cell voltages and verify measurement accuracy

7

8,163,978

Generation of plants with altered protein, fiber, or oil content

8

8,163,876

DNA sequences, vectors and proteins of avian influenza hemagglutinin

9

8,163,691

Compositions and methods for identifying agents which modulate PTEN function and PI-3 kinase pathways

10

8,163,560

Coated test elements

April 27, 2012

Lippert Components Sues Actuant Corporation for Patent Infringement of Retractable Room Technology for Recreational Vehicles

By Overhauser Law Offices, LLC

South Bend; IN – Patent attorneys for Lippert Components of Goshen, Indiana filed a patent infringement suit in the Northern District of Indiana alleging Actuant Corporation of Menomonee Falls, Wisconsin, Versa Technologies of Milwaukee, Wisconsin and Engineered Solutions of Milwaukee, Wisconsin infringed patent no. 8,016,343 RETRACTABLE ROOM ACTUATION ASSEMBLY FOR RECREATIONAL VEHICLE, which has been issued by the US Patent Office.

The complaint states that the defendants displayed a new product, called “In-Wall Slide,” at a trade show in Kentucky in November and December 2010. Thereafter, Lippert notified the defendants that it had a patent application pending for the exact same technology utilized by the In-Wall Slide product. Lippert’s ‘343 patent was granted on September 13, 2011. The complaint states that the defendants again displayed the In-Wall Slide product at the 2011 trade show. Libbert alleges that the In-Wall Slide product infringes its ‘343 patent. The complaint makes one claim of patent infringement and seeks an injunction, damages, attorney fees and costs.

Practice Tip: The plaintiff has included an interesting fact to establish personal jurisdiction. The complaint alleges that Versa and Engineered Solutions operate a business in Mishawaka, Indiana called Power Gear.

April 25, 2012

Gino’s East Services Sues GE Pizza Of Mishawaka for Trademark Infringement in Pizza Franchise Dispute

By Overhauser Law Offices, LLC

Hammond; IN – Trademark attorneys for Gino’s East Services of Chicago, Illinois filed a trademark infringement suit in the Northern District of Indianaalleging GE Pizza of Mishawaka, Indiana, Shamrock Management Group of Highland, Indiana, Larry Briski and Mary Briski infringed trademark registration nos. 1,511,299, 3,341,730 and 3,572,210 for the marks GINOS EAST OF CHICAGO THE ORIGINAL registered with the US Trademark Office.

Gino’s East is a franchisor of pizza restaurants called “The Original Gino’s East of Chicago.” The complaint states that the defendants operate two franchise restaurants in Mishawaka and Highland, Indiana. The complaint states that Larry and Mary Briski personally guaranteed the franchise agreements. Gino’s East owns several trademarks associated with its franchise brand. The complaint states that the defendants have failed to pay royalty and other fees required by the franchise agreements. In February 2012, Gino’s East sent a letter to the defendants terminating the franchise agreement due to the failure to pay required fees. The complaint states that the defendants have failed to cease to use Gino’s East’s trademarks and have failed to return equipment and material bearing Gino’s East’s marks. The complaint states the defendants have not altered the exterior or interior of the restaurants so as to alert the public that they are no longer Gino’s franchises. The complaint makes claims of trademark infringement, unfair competition, trade name and dress infringement and breach of franchise agreement.

Practice Tip: Franchise agreements typically require the franchisee to promptly cease to use all of the franchise marks as well as return all items bearing the franchise marks in the event the franchise agreement is terminated. Failure to promptly comply with these provisions can lead to liability for trademark infringement, among other claims.

April 23, 2012

Eli Lilly Sues Apotex Inc. for Patent Infringement of ALIMTA

By Overhauser Law Offices, LLC

Indianapolis, IN – Patent attorneys for Eli Lilly of Indianapolis, Indiana filed a patent infringement suit in alleging Apotex of Toronto, Canada infringed patent no. 7772209, ALIMTA, which has been issued by the US Patent Office.

ALIMTA is a chemotherapy drug used to treat mesothelioma and other lung cancers. Lilly co-owns the patent with Princeton University. This lawsuit arises from Apotex’s filing of an Abbreviated New Drug Application in March 2012 with the Food and Drug Administration that utilizes the ALIMTA patent. Lilly alleges that Apotex seeks approval for ANDA and that the product infringes its patents. The complaint makes one claim of patent infringement and seeks a declaration of infringement, an injunction, attorney fees and costs.

Practice Tip: Lilly’s ALIMTA has been the subject of several patent infringement cases. Here are a few we have blogged about:

Eli Lilly and Company Sues Accord Healthcare for Patent Infringement of Lung Cancer Drug ALIMTA
Eli Lilly Company Sues APP Pharmaceuticals LLC for Patent Infringement of Chemotherapy Drug
Lilly Wins Patent Infringement Suit Regarding Chemotherapy Drug

April 20, 2012

Microsoft Corporation Sues D & A LLC for Copyright and Trademark Infringement Unauthorized Installations of Windows XP

By Overhauser Law Offices, LLC

Indianapolis; IN – Trademark and copyright attorneys for Microsoft Corporation of Redmond, Washington filed a copyright and trademark infringement suit in alleging D & A LLC d/b/a/ Asset Recovery and Recycling and David B. Bell of Indianapolis, Indiana infringed trademarks 1256083, 1200236, 1872264 and 2744843 registered by the US Trademark Office. The complaint also makes copyright infringement, false designation of origin, false description and representation, and unfair competition.

The complaint alleges that D&A markets, sells, and distributes computer hardware and software, including Microsoft products. The complaint states that D&A sells computers, which it advertises have Microsoft software pre-installed. Microsoft alleges that the Microsoft software on the computers D&A sells are infringing copies. The complaint states that a Microsoft investigator purchased computers with unauthorized copies of Windows XP from D&A on three occasions in 2011. The unlicensed software contains Microsoft trademarks and copyrighted works. Microsoft is seeking a declaration of infringement, an injunction, an accounting, an order impounding counterfeit copies of Microsoft software, damages, costs and attorney fees.

Practice Tip: Microsoft has named David Bell personally, the owner of D & B, as a defendant, alleging that he participated in and had a right to control the wrongful conduct. A corporate officer, director or shareholder is, as a general matter, personally liable for all torts which she authorizes or directs or in which she participates, even if she acted as an agent of the corporation and not on her own behalf.

April 18, 2012

Cosmetic Warriors Sues Lush Day Spa for Trademark Infringement of “LUSH”

By Overhauser Law Offices, LLC

Evansville; IN – Trademark attorneys for Cosmetic Warriors Limited of the United Kingdom filed a trademark infringement suit in the Southern District of Indiana alleging Lush Day Spa of Evansville, Indiana infringed trademark registration no. 3987808 for the mark LUSH which has been registered with the US Trademark Office.

The complaint states that Cosmetic Warriors operates a retail store in California and operates, www.lush.com, a website selling its bath, hair care, and beauty products, which are described as “made from natural, wholesome ingredients.” The complaint states that the Bartnicks operate an Evansville retail shop called Lush Day Spa. Cosmetic Warriors alleges it has been using the mark “Lush” since 1996 and alleges the mark is distinctive and is an indicator of Cosmetic Warrior’s brand. The complaint states that the defendants began operating the Lush Day Spa on July 18, 2011 and offers salon services and products. The complaint alleges the defendant operate a website at www.thelushdayspa.com and a facebook page under the same name. Cosmetic Warriors states that it has contacted the defendants and demanded they discontinue use of the Lush mark, but that the defendants have failed to discontinue. Cosmetic Warriors alleges the defendant’s use of “Lush” is virtually identical to its trademark and confusingly similar. The complaint makes claims of federal trademark infringement, unfair competition, deceptive consumer sales, and state law unfair competition and seeks an injunction, transfer of the domain name www.thelushdayspa.com, an accounting, damages, punitive damages, attorney fees and costs.

Practice Tip: The plaintiff seems very concerned with the defendant’s website, which is said to be a confusingly similar domain name, however, it has not alleged a cause of action for cybersquatting. The Anti-cybersquatting Consumer Protection Act of 1999 created a cause of action for registering, trafficking or using a domain name that is confusingly similar or dilutive to the trademark of another.