Indiana Intellectual Property Law News

November 15, 2011

Howmedica Osteonics Corp. and Stryker Ireland Ltd. Sues DePuy Orthopaedics Inc. for Patent Infringement of a Surgical Implant Used in Hip Replacement Procedures

Newark, NJ – Patent attorneys for Howmedica Osteonics Corp. Mahwah, New Jersey and Stryker Ireland Limited of Cork, Ireland filed a patent infringement suit in the District of New Jerseyalleging DePuy Orthopaedics Inc. of Warsaw, Indiana infringed patent no. 6,475,243, Acetabular cup assembly with selected bearing; which has been issued by the US Patent Office.

The complaint states that Howmedica and Stryker are joint assignees of the ‘243 patent. The complaint alleges that DePuy is currently marketing two products that infringe the ‘243, specifically the Pinnacle® and Duraloc® Acetabular Cup Systems. The complaint also alleges that by offering these products for sale, DePuy causes or encourages others to infringe the ‘243 patent by creating medical literature and providing training to healthcare providers about its infringing products and methods. The complaint seeks a finding that DePuy’s products infringe the ‘243 patent, an injunction, and damages.

Practice Tip: The plaintiffs have brought this case in New Jersey District Court against an Indiana company. The complaint states that personal jurisdiction over the Defendant is based upon the “Defendant has infringed Plaintiff’s patent in this district, regularly conducts business within this district, and its activities have targeted this district.” These are fairly generic and non-specific allegations to give rise to personal jurisdiction. If DePuy challenges jurisdiction, the plaintiffs may have to demonstrate more specific facts to successfully establish personal jurisdiction.
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November 14, 2011

Trademark Registrations Issued to 103 Indiana Companies in October, 2011

By Overhauser Law Offices, LLC

The US Trademark Office issued the following 103 trademark registrations to persons and businesses in Indiana in October, 2011, based on applications filed by Indiana Trademark Attorneys:

	Reg. Number	Mark	Click to View
1	78,075,000	JOHN DILLINGER	LIVE
2	78,146,072	SOFT FOCUS	LIVE
3	78,100,577	DREAMS & CO.	LIVE
4	78,150,292	FASHIONCODE	LIVE
5	78,092,649	ALPHA WIRE CABLE DESIGN CENTER	LIVE

November 11, 2011

Congress Considers Bill To Give Law Enforcement More Tools to Target Online Copyright Infringement

By Overhauser Law Offices, LLC

Washington, D.C. – The United States House of Representatives is considering a bill directed as providing law enforcement more tools to stop illegal online file sharing and copyright infringement. The bill, titled the “Stop Online Piracy Act,” was introduced by Representative Lamar Smith of Texas on October 26, 2011. The bill would authorize the Department of Justice to seek a court order requiring alleged infringers as well as domain names and websites to immediately cease any activities that are intellectual property criminal offenses. The bill would also create a new mechanism for seeking limited injunctive relief against the owners of domain names and websites to stop infringement occurring through their sites and domains. The bill also expands the definition of criminal copyright infringement to include public performance of copyrighted work by digital transmission or making work intended for commercial dissemination available on a computer network. The bill is also being called the E-PARISITE Act (“the Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation Act”).

The bill is drawing criticism from a number of corners. Specifically, some critics have noted that the bill would allow the government or private parties to shut down entire websites, not just infringing content. A report from John Moe of NPR’s Marketplace, quotes extensively from Professor Mark Lemley of Stanford Law School, who stated ““What’s remarkable about this provision is that it would allow the government and in many cases private parties to come into court, get a temporary restraining order without the participation of the accused website and shut down not just the infringing material, but the whole website.”

The bill was referred to the House Judiciary subcommittee on Intellectual Property, Competition and the Internet, of which Indiana Congressman Mike Pence is a member.

November 10, 2011

Eli Lilly & Company Sues Yanchep Veterinary Clinic, Proprietary Limited Company, for Trademark Infringement

By Overhauser Law Offices, LLC

Indianapolis IN – Trademark lawyers for Eli Lilly and Company of Indianapolis, Indiana filed a trademark infringement suit in the Southern District of Indiana alleging Yanchep Veterinary Clinic, Proprietary Limited Company, Petsvetshop, Proprietary Limited Company,, Paul Sorensen and Dr. Cymantha Sorensen, all of Yanchep, Australia infringed trademark registration no. 3,370,168 for the mark COMFORTIS, which has been registered in the US Trademark Office.

The COMFORTIS mark is used by Lilly’s Elanco Animal Health Division in connection with the manufacturing and sales of flea-control products Thumbnail image for Thumbnail image for lilly.jpg for dogs available only through a veterinarian’s prescription. Lilly maintains a website that instructs on the safe use of the product, but does not sell the product online. Lilly sells the product worldwide, including in Australia. The complaint alleges that the defendants are directly selling Comfortis in the United States through their websites. The complaint alleges that the defendants are selling the Australian version of Comfortis, which does not comply with various FDA requirements including that it only be sold by a licensed veterinarian. The complaint states that Lilly sent the defendants a letter in March 2010 demanding that they cease their sales of Comfortis. The defendants stopped selling Comfortis to United States customers for a brief period, but then resumed. The complaint makes claims of trademark infringement, unfair competition, cybersquatting, and Indiana state law unfair competition. Lilly is seeking an injunction, damages, the transfer of domain names, and for the defendants to send a letter to all U.S. customers who bought Comfortis from the defendants instructing that the product should not be used.

Practice Tip: All of the defendants here are Australian citizens or companies. Expect them, if they file an appearance at all in the case, to raise issues of jurisdiction.

November 9, 2011

Update: Coach Trademark Infringement Suit against Novelty Inc. Has Settled

By Overhauser Law Offices, LLC

Indianapolis, Indiana – A trademark infringement case in the Southern District of Indiana has recently settled. In May 2010, intellectual property counsel for Coach, Inc. and Coach Services, Inc., both of New York, NY, had filed an infringement suit alleging Novelty, Inc. of Greenfield, IN, has infringed numerous COACH trademarks which have been registered with the U.S. Trademark Office, as well as infringed copyrighted design elements and product trade dress. The case was blogged about by Indiana Intellectual Property Law and News. The case has recently been dismissed from the court’s docket with a notice that an undisclosed settlement had been reached.

Coach’s trademark attorneys had accused Novelty of offering products bearing source-identifying indicia and design elements which are “studied imitations” of the plaintiffs’ intellectual property. Novelty failed to file an answer to the complaint on time, and Coach obtained a default judgment in August 2010. Novelty then successfully petitioned the court to set aside the default judgment, arguing that it had not answered the complaint because settlement discussions were ongoing. The parties apparently had a discovery dispute relating to the extent to which a protective order concerning confidential information should be in place and whether certain disclosures should be limited to “attorney eyes only.” In July, Magistrate Baker sided with Coach in the discovery dispute noting “The Defendant has not shown sufficient cause for an “attorney’s eyes only” provision, and Defendant’s other objections, while not unreasonable, are not more compelling than Plaintiffs’ proposal.” The case has now been settled.

Practice Tip: In this case, Novelty argued that the default judgment should be set aside because settlement negotiations were ongoing at the time. Although Novelty successfully had the default set aside, other courts have not allowed this excuse for failing to file an answer or seek an extension of time. See U.S. v. Topeka Livestock Auction, Inc., 392 F.Supp. 944 (D.C. Ind. 1975). This illustrates the importance of complying with the deadline for answering a complaint, even if settlement seems likely.

This case was assigned to Chief Judge Richard L. Young and Magistrate Judge Tim A. Baker in the Southern District of Indiana, and assigned case no. 1:10-cv-00615-RLY-TAB.

November 8, 2011

Northern District of Indiana Rolls Out Proposed Changes to Local Rules

By Overhauser Law Offices, LLC

Fort Wayne, IN – The Northern District of Indiana has published proposed changes to the local rules. The proposed changes would affect many rules, however, are not intended to change the substance of the local rules. Rather, the changes are proposed in order to simplify and clarify the language of the rules. The court has released “Guiding Principles” to the revisions, stating the goals of the revisions include: conforming to the style, organization, format and terminology of the Federal Rules of Civil Procedure and to follow generally accepted American-English sentence construction. The numbering system of the local rules will also be changed slightly under new proposal.

The public and bar are invited to comment on the proposed local rule changes through a link provided on the Court’s website.

November 7, 2011

Eli Lilly & Co. Loses Appeal in British Supreme Court Over Patent Dispute Over Gene Sequence

By Overhauser Law Offices, LLC

London, U.K. – The Supreme Court of the United Kingdom has ruled against Indianapolis-based Eli Lilly & Company in a patent dispute. Lilly had challenged the validity of the patent of Human Genome Sciences, Inc., of Rockville, Maryland that covers the gene sequence of a protein called Neutrokine-α. Lilly had challenged the patent based on the fact that there is no known use of the protein. Thus, Lilly argued, the gene sequence was not patentable due to a lack of industrial application.

According to the Indianapolis Business Journal, Lilly continues to maintain the patent is invalid. The IBJ quoted a Lilly statement as stating “Human Genome Sciences seek to foreclose a whole area of research in a way that is not only harmful to the industry, but would ultimately and unjustifiably hinder the future development of new medicines.”

Practice Tip: The Court’s decision was based upon the European Patent Convention and United Kingdom patent doctrine requiring a patentable invention be susceptible to industrial application, which is similar to the U.S. patent doctrine of utility. The Court’s decision here holds that the U.S. doctrine of utility creates a higher bar to patentability that the E.U. and U.K. doctrine. The opinion explicitly rejected U.S. cases on the doctrine, including Brenner v Manson, 383 U.S. 519 (1966) and in re Fisher, 421 F.3d 1365 (2005).

November 4, 2011

Patent Lawsuit Filed Over Playground “Curved Rail Panels”

By Overhauser Law Offices, LLC

Evansville, IN – Parents try to protect their children from playground hazards. Now there is a new threat to watch out for – patent infringement.

Patent lawyers for Plaintiff, INDIAN INDUSTRIES, INC. d/b/a Escalade Sports of Evansville, IN, have sued Defendant RAINBOW PLAYSYSTEMS, INC. of Brookings, South Dakota alleging it has infringed patent no. 8,002,642, PLAYSET SYSTEM COMPONENTS, which has been issued by the US Patent Office.

The Complaint alleges that Rainbow’s “Turbo Sunshine Castle, Turbo Sunshine Clubhouse, Rainbow Castle Supersized, and King Kong Quarter Turned Club Playsets” infringe Indian’s “curved rail panels” feature. Although parents seek to protect their children from “playground injuries,” Indian alleges that the accused playsets cause it “irreparable injury.”

November 3, 2011

Update to Third Degree Films V. John Doe: Purdue Releases Student’s Name Who Is Accused of Copyright Infringement of Adult Film

By Overhauser Law Offices, LLC

Lafayette, IN – According to a report from the Associated Press, Purdue University has released the name of a student who is accused of illegally downloading an adult film from a dorm room internet connection. Last month, Indiana Intellectual Property Law and News reported on Magistrate Judge Andrew Rodovich of the Northern District of Indiana ruling that denied a motion to quash the subpoena that sought Purdue’s disclosure of the student’s name and address.

This Purdue student is one of 2,000 internet subscribers that Third Degree Films, Inc. of California alleges have committed copyright infringement by illegally downloading adult videos. Third Degree did not know the identities of the persons who allegedly illegally downloaded the copyrighted work, but did have the internet protocol (I.P.) address. Third Degree has served subpoenas on internet services providers attempting to uncover the identities of the subscribers with the specified I.P. addresses. The underlying copyright infringement lawsuit was filed by copyright attorneys for Third Degree in the Northern District of California. Several similar copyright infringement cases are currently pending in Indiana district courts.

The Purdue student had filed a motion to quash the subpoena issued on Purdue, arguing that the subpoena sought confidential information and was burdensome.

Practice Tip: Typically in a case like this, once the identity of the I.P. subscriber is learned, the copyright attorneys for the film company will send a letter to the person seeking a settlement and threatening to sue the person if a settlement is not reached.
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November 2, 2011

Borg Warner Sues Cummins for Patent Infringement of Turbocharger Wheel Design and Methods

By Overhauser Law Offices, LLC

Asheville, NC – Patent attorneys for Borg Warner, Inc. of Auburn Hills, Michigan and Borgwarner Turbo Systems, Inc. of Arden, North Carolina have filed a patent infringement suit in the Western District of North Carolina alleging Cummins, Inc. of Columbus, Indiana, Cummins Turbo Technologies Limited of the United Kingdom, and Cummins Turbo Technologies of North Charleston, South Carolina BW Turbochargers.jpg infringed patent no. 6,904,949, Method of making turbocharger including cast titanium compressor wheel; along with patent no’s. 6,629,556 and 6,663,347, Cast titanium compressor wheel, which have been issued by the US Patent Office. These patents are known collectively as “the Borg Warner Compressor Wheel Patents”.

The patents at issue are designs for and methods of manufacturing titanium compressor wheels for use in turbocharger applications. Bloomberg.com described the technology “directing air into an engine’s manifold.” The complaint alleges that Cummins infringes the Borg Warner patents by importing, making, selling, and offering for sale devices created by the patented methods. Borg accuses Cummins of directing its foundries to use the patented methods. The complaint makes three claims of patent infringement and seeks an injunction, damages and attorney fees.

Practice Tip: According to Reuters.com, patent lawyers for Borg Warner filed a similar patent infringement lawsuit against Honeywell, which resulted in a $32.5 million settlement in favor of Borg Warner.
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