Indiana Intellectual Property Law News

August 15, 2011

Indiana Court of Appeals Affirms Counterfeiting Conviction and Seven and a Half Years Suspended Sentence for Mail Order Form Counterfeit

Indianapolis, IN – The Indiana Court of Appeals examined Indiana’s criminal counterfeiting law in affirming a criminal counterfeiting conviction and sentence. The defendant was charged with five counts of counterfeiting, a Class D felony, after he filled out mail order forms and caused an Indiana State Trooper to receive and become indebted for “various collectable items that neither he nor any member of his household had ordered.” The defendant argued that the verdict should be overturned because the order forms were not “written instruments” as defined by the criminal counterfeiting statute. The court found that the order forms were written instruments. They examined the definition, citing I.C. § 35-43-5-1(t) and noted “a written instrument is defined as ‘a paper, a document, or other instrument containing written matter and includes ‘a list of specific items and ‘other objects or symbols of value, right, privilege, or identification.’

The court also affirmed the trial court’s sentence of seven and a half years, suspended with five years of probation. The sentence represented eighteen months for each of the five counterfeiting convictions to run consecutively. The court noted that crimes were committed “to retaliate against Trooper Kaizer for carrying out his duties as a police officer by issuing Trainor a traffic citation.” The court described how the Trooper had cited Trainor for making an illegal U-turn just before committing the criminal acts. Trainor contended his actions were a “prank.”

Practice Tip: Intellectual property attorneys sometimes make additional claims in trademark and copyright infringement cases that allege violations of criminal laws, particularly Indiana’s counterfeiting and conversion criminal statutes. For example, Indiana Intellectual Property Law News reported in February on a trademark infringement case that also made a claim of conversion, knowingly or intentionally exerting control over property of another. In June, Coach filed two trademark infringement lawsuits that also made claims under Indiana’s criminal counterfeit and forgery laws.

August 12, 2011

Lilly Wins Patent Infringement Suit Regarding Chemotherapy Drug

By Overhauser Law Offices, LLC

Wilmington, DE – Indianapolis-based Eli Lilly & Company has won patent infringement protection of the drug Lilly’s drug ALIMTA drug, which is a chemotherapy drug used to treat mesothelioma and other lung cancers. Lilly co-owns the patent with Princeton University. The lawsuit arose from an Abbreviated New Drug Application filed with the Food and Drug Administration that had been filed by Teva Parenteral Medicines of Israel, alleging APP Pharmaceuticals LLC of Schaumburg, Illinois, and Barr Laboratories of Montvale, New Jersey. Their ANDA sought approval to sell generic versions of ALIMTA prior to the expiration of the patent.

As soon as the ADNA was filed, Lilly’s patent attorneys filed a patent infringement lawsuit in the District Court of Delaware. The defendants had claimed that the ALIMTA patent, patent no. 5,344,932, N-(pyrrolo(2,3-d)pyrimidin-3-ylacyl)-glutamic acid derivatives, which has been issued by the US Patent Office, was invalid “under the doctrine of obviousness-type double patenting because the claimed invention is an obvious modification of inventions claimed in commonly-owned U.S. Patent Nos. 5,028,608 (“the ‘608 patent”) and 5,248,775 (“the ‘775 patent) in light of the relevant prior art.” The court held a five day bench trial in November 2010.

The Chief Judge Gregory Sleet wrote for the court in upholding the validity of the patent. “The court concludes that the examples found in the ‘775 patent specification do not support a finding of invalidity for obviousness-type double patenting because this case does not present a situation in which separate patents are sought for a claim to a compound and a claim to using that compound for the disclosed utility of the original compound.”

According to WISHTV.COM, Alimta was Lilly’s third best selling drug and had sales of $1.64 billion in first three quarters of 2010. The Alimta patent has been the subject of much litigation. On July 15, 2011, Lilly filed a patent infringement lawsuit regarding the same patent and against APP Pharmaceuticals, also a defendant in this case. Indiana Intellectual Law News blogged on the case here.

August 4, 2011

Federal Circuit Court Affirms Attorney Fee Award and Rule 11 Sanctions Of More Than $600,000 in Patent Infringement Case

By Overhauser Law Offices, LLC

Washington, D.C. – In an unusual decision; the Court of Appeals for the Federal Circuit has affirmed attorney’s fees and sanctions against a plaintiff who filed a meritless patent infringement lawsuit and committed other litigation misconduct. The case was appealed from the Western District of Washington, which had awarded Flagstar $489,150 in attorney’s fees and costs and $141,984 in Rule 11 sanctions.

EON-NET is a patent holding company and owning the patents at issue in this suit, patent numbers, 6,683,697, Information processing methodology, 7,075,673, Information processing methodology, and 7,184,162, Information

processing methodology, which have been issued by the US Patent Office. EON-NET had a long history of litigating claims related to these patents, including filing suit against Flagstar Bancorp, which became the decision here. Essentially, the district court had concluded that the lawsuit filed by EON-Net against Flagstar was meritless and little more than an attempt to extort a settlement from the defendants.

The appellate court found “the district court correctly construed the claims of the asserted patents, did not commit clear error in its exceptional case finding under 35 U.S.C. § 285, and did not abuse its discretion in invoking Rule 11 sanctions[.]” Therefore, the court affirmed. Judge Lourie, writing for the court, noted that “[m]eritless cases like this one unnecessarily require the district court to engage in excessive claim construction analysis before it is able to see the lack of merit of the patentee’s infringement allegations.” He further noted that Eon-Net’s settlement offer of less than 10 percent of what Flagstar spent defending its suit, “effectively ensured that Eon-Net’s baseless infringement allegations remained unexposed, allowing Eon-Net to continue to collect additional nuisance value settlements.”

Practice Tip: Federal Rule of Civil Procedure 11 allows for sanctions when a claim or defense is presented for an improper purpose such as “to harass, cause unnecessary delay, or needlessly increase the cost of litigation [,]” is a frivolous argument, or is not supported by factual evidence. Of particular note, the court may impose sanctions on the party, the party’s attorney or both. An award of sanctions under Rule 11 is rare, however, when awarded; the punishment is quite severe, as it was in this case.

August 2, 2011

Gian Biologics v. Biomet, Patent Infringement Lawsuit Over Centrifuge Tube Assembly, Transferred to the Northern District of Indiana

By Overhauser Law Offices, LLC

South Bend, IN – A patent infringement lawsuit that was originally filed in the District Court of Delaware was transferred to the Northern District of Indiana. Patent lawyers for Gian Biologics LLC of Delaware filed a patent infringement suit in the District Court of Delaware alleging Biomet, Inc. of Warsaw, Indiana infringed patent no.6,835,353 CENTRIFUGE TUBE ASSEMBLY, which has been issued by the US Patent Office.

The patent at issue is used for holding blood and separating blood product in to discrete components. The complaint alleges that Biomet makes, uses, sells, offers for sale and/or imports infringing products, namely several Biomet product lines including Plasmax Concentrator and Gravitational Platelet Separation Systems. The complaint alleges one count of patent infringement and seeks injunction, damages, attorney’s fees and costs. Gian’s patent attorneys filed the complaint in October 2010.

The case has now been transferred to the Northern District of Indiana by stipulation of the parties. It appears that initially Gian resisted transfer, and the Delaware District Court allowed limited discovery on the issue of transfer. According to the Delaware IP Law Blog, it was revealed that Gian had only been incorporated in Delaware for four months before the lawsuit was filed. The Delaware District Court had then stayed further discovery until the venue issue was resolved and noted it had doubts about whether the case should remain its court. In the parties’ stipulation agreeing to transfer, it was noted that “In order to conserve resources – and in light of the fact that the parties are engaged in a parallel patent infringement case in Germany that is scheduled for a bench trial on November 8, 2011 – Gian has concluded that the most efficient resolution would best be accomplished through a stipulated transfer at this time.”

Practice Tip: 28 U.S.C. 1404 allows transfer of a case from one district court to another by order of the court or by stipulation and consent of the parties.

August 1, 2011

Indiana Patent Attorneys Obtain 110 Patents for Indiana Companies in July, 2011

By Overhauser Law Offices, LLC

Indiana patent attorneys obtained issuance of the following 110 patents from the US Patent Office to persons and businesses in Indiana in July, 2011:

	PAT. NO.	TITLE
1	RE42,576	Human spinal disc prosthesis
2	D642,303	Front portion of a vehicle headlamp
3	D642,242	Faucet wand
4	D642,241	Faucet hub
5	D642,225	Target for a tossing game

August 1, 2011

Lilly Wins Appeal Protecting Attention-Deficit Disorder Drug Patent

By Overhauser Law Offices, LLC

Washington, D.C. – Indianapolis-based Eli Lilly & Co. won a lawsuit against seven other pharmaceutical companies that sought FDA approval to sell competing drugs that would have utilized Lilly’s patented drug formula. The seven defendants, Actavis Elizabeth LLC, Sun Pharmaceuticals, Sandoz Inc., Mylan Pharmaceuticals, Apotex Inc., Aurobindo Pharma Ltd., and Teva Pharmaceuticals, had filed an Abbreviated New Drug Application (ANDA) seeking to utilize Lilly’s patented formula and claiming invalidity of Lilly’s patent, No. 5,658,590, Treatment of attention-deficit/hyperactivity disorder, which has been issued by the US Patent Office. The patented drug is marketed under the name Strattera and is used to treat Attention-Deficit Disorder.

Upon the filing of the ADNA, Lilly’s patent attorneys immediately filed this patent infringement lawsuit in the United States District Court of New Jersey. The district court sustained the ‘590 patent against the defendants’ challenges on the grounds of inequitable conduct, anticipation, obviousness, and non-enablement. However, the court held the claims invalid for lack of utility, which the court called “enablement/utility.” The Federal Circuit Court went further in protecting Lilly’s patent and upheld the patent in its entirety. The ruling ensures that Lilly’s patent will be fully enforceable through its expiration in 2017.

According to the Indianapolis Business Journal, the drug generated $577 million in sales for Lilly last year.

The case is Eli Lilly & Co. v. Actavis Elizabeth LLC et al, Case No. 2010-1500 in the Court of Appeals for the Federal Circuit, decided July 29, 2011. The opinion notes it is “nonprecedential.”
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July 31, 2011

135 Trademark Registrations Issued to Indiana Companies in July, 2011

By Overhauser Law Offices, LLC

The US Trademark Office issued the following 135 trademark registrations to persons and businesses in Indiana in July, 2011, based on applications filed by Indiana Trademark Attorneys:

	Reg. Number	Mark	Click to View
1	4,002,571	LILLY FOR BETTER HEALTH	VIEW
2	4,002,545	FLOWALKING	VIEW
3	4,002,518	MIDWEST WIND & SOLAR RENEWABLE ENERGY EXPERTS	VIEW
4	4,002,355	IVL PRODUCTS	VIEW
5	4,002,351	RED SPOT	VIEW
6	4,002,305	MID-AMERICA SCIENCE PARK	VIEW
7	4,002,304	MID-AMERICA SCIENCE PARK	VIEW
8	4,002,279	ORTHOINC. ORTHODONTICS INCORPORATED	VIEW
9	4,002,126	GLOWFEST	VIEW
10	4,002,104	MUSKEGON LUMBERJACKS	VIEW
11	4,002,062	VIRTIQUE HEALTH	VIEW
12	4,002,049	QUEST BOOKS	VIEW
13	4,002,048	BASS BOAT SAVER	VIEW
14	4,001,986	M MIASA AUTOMOTIVE LLC	VIEW
15	4,001,964	ENVIRO-FILM	VIEW
16	4,004,120	ADVANCED CENTER FOR CANCER CARE	VIEW
17	4,001,776	MOMMA’S OLD-FASHIONED APPLESAUCE	VIEW
18	4,003,971	SQUIRREL DADDY	VIEW
19	4,001,673	PROXIMITY	VIEW
20	4,001,656	KLASSICAL KEYS	VIEW
21	4,003,929	CENTIER RETIRERIGHT	VIEW
22	4,003,910	CANE EXPRESSIONS	VIEW
23	4,003,881	FLEXIVAP	VIEW
24	4,003,854	RUNHELPER	VIEW
25	4,001,388	SHOW THE DRIVE	VIEW
26	4,001,384	{DESIGN}	VIEW
27	4,001,307	FUNKY MONKEY FRUIT THAT CRUNCHES!	VIEW
28	4,001,000	RECOGNITION BY DESIGN	VIEW
29	4,000,994	FAMILIES IN GLOBAL TRANSITION	VIEW
30	4,003,664	FORM-A-GROOVE	VIEW
31	4,000,788	FLEXWHITE	VIEW
32	4,000,787	FLEXWHITE	VIEW
33	4,000,770	AMERIVERI	VIEW
34	4,000,022	PARTNER SERVICESWEB	VIEW
35	3,998,239	STEPTECH	VIEW
36	4,000,008	SUSTAINABLE STEAM	VIEW
37	4,000,002	A PLACE FOR FILM	VIEW
38	3,997,902	NO UGLIES ALLOWED	VIEW
39	3,997,734	INNOVATIVE SOLUTIONS. OUTSTANDING SERVICE. GREAT PEOPLE.	VIEW
40	3,997,695	IMPACT	VIEW
41	3,997,541	SALUTING AMERICA’S GREATNESS	VIEW
42	3,997,540	{DESIGN}	VIEW
43	3,997,539	INDUSTRIAL REVOLUTION	VIEW
44	3,997,488	C-FLEX	VIEW
45	3,997,377	{DESIGN}	VIEW
46	3,997,322	BALL PROJECT	VIEW
47	3,997,036	LINCOLN DENTALCONNECT	VIEW
48	3,996,832	{DESIGN}	VIEW
49	3,996,803	NU NORMAL PRODUCTIONS	VIEW
50	3,999,801	V-FORCE	VIEW
51	3,996,587	DEFINING EXPERIENCES	VIEW
52	3,999,776	KOALA	VIEW
53	3,996,459	BETWEEN FRIENDS AND FAMILY	VIEW
54	3,996,399	STOR-MATE	VIEW
55	3,999,616	KEEPSAKE THREADS	VIEW
56	3,996,318	RILEY HOSPITAL	VIEW
57	3,996,315	RILEY HOSPITAL FOR CHILDREN	VIEW
58	3,996,314	RILEY	VIEW
59	3,996,275	DON’T TEXT & DRIVE PARKVIEW TRAUMA CENTER	VIEW
60	3,996,249	CHEEKY COUTURE	VIEW
61	3,996,218	HOUSE OF GREENS	VIEW
62	3,999,379	TERRA LOC	VIEW
63	3,994,083	FIBROGUIDE	VIEW
64	3,993,881	STREETSLIDES	VIEW
65	3,993,743	ULTRAFLAME	VIEW
66	3,993,278	RUFFIES	VIEW
67	3,993,222	MY MD HOUSE CALLS LLC	VIEW
68	3,995,189	CD HORIZON BALANC	VIEW
69	3,995,388	SEEDWEIGH	VIEW
70	3,995,166	WAVE CRADLE	VIEW
71	3,995,161	EVRI-GLOVE	VIEW
72	3,995,374	THE HOOSIER FARMER	VIEW
73	3,992,447	VILLA LUXE	VIEW
74	3,992,424	PURE EATERY FRESH HONEST FOOD	VIEW
75	3,995,360	GIRL …	VIEW
76	3,995,075	COMFORT CRADLES	VIEW
77	3,995,043	THEMPRA XL	VIEW
78	3,992,208	THE IRISH LION	VIEW
79	3,992,069	MOTIONDYNAMICS	VIEW
80	3,990,137	QUEEN OF PINUPS	VIEW
81	3,989,973	MIASA	VIEW
82	3,989,947	MIKE SOLD ME!	VIEW
83	3,989,935	MIKE SOLD ME!	VIEW
84	3,989,871	INWARD OASIS	VIEW
85	3,989,785	ROBOTWORX	VIEW
86	3,989,751	THERE’S A PARTY IN EVERY PAIR.	VIEW
87	3,989,673	QUEEN OF PINUPS	VIEW
88	3,989,484	TRUSTINDIANA	VIEW
89	3,989,483	TRUSTINDIANA	VIEW
90	3,991,257	CSTAR	VIEW
91	3,989,279	NYHART	VIEW
92	3,989,217	DJ SEGAL	VIEW
93	3,989,175	WORKSITEUL2	VIEW
94	3,989,036	SOLAS RAY	VIEW
95	3,989,035	SOLAS RAY	VIEW
96	3,988,862	GRENADIERS INDIANA UNIVERSITY SOUTHEAST	VIEW
97	3,991,240	ENDURALOCK	VIEW
98	3,991,333	BETTER BROWNING BAKEWARE	VIEW
99	3,991,153	SONNET	VIEW
100	3,991,040	PALIBRIO	VIEW
101	3,990,980	JEAN HARLOW	VIEW
102	3,990,965	PERFINITY	VIEW
103	4,003,281	THE HOT-HEDD	VIEW
104	4,000,340	LAS-TIK	VIEW
105	4,003,126	I S	VIEW
106	4,003,125	INNATE SLEEP	VIEW
107	4,003,037	REZSHIELD	VIEW
108	4,003,034	GARDENMAJIK	VIEW
109	4,002,944	TANGENT POINT MEDIA	VIEW
110	4,002,943	TANGENT POINT MEDIA	VIEW
111	4,002,914	PADS PROFESSIONALS AGAINST DOPING IN SPORTS	VIEW
112	3,987,631	READY NOW FOR WHAT’S NEXT	VIEW
113	3,990,443	APPLEWAYS	VIEW
114	3,999,065	G SERIES PRO 03 RECOVER	VIEW
115	3,998,973	AN ATTENTION AGENCY	VIEW
116	3,995,645	TERRA SPICE	VIEW
117	3,998,624	TROPICAL RAINBOWS	VIEW
118	3,998,548	IRMI	VIEW
119	3,994,679	ALERGFIN	VIEW
120	3,994,636	THINGS EVERY KID SHOULD KNOW	VIEW
121	3,994,508	BRONZE RHAPSODY	VIEW
122	3,994,505	VSG VEHICLE SERVICE GROUP	VIEW
123	3,991,531	MOUNTAIN GLACIER	VIEW
124	3,994,385	ACTIFY THE WIRELESS ACTIVATION LEADER	VIEW
125	3,994,384	ACTIFY	VIEW
126	3,990,816	PELOTON	VIEW
127	3,990,662	GENERAL TACTICAL VEHICLES	VIEW
128	3,990,657	ACCELERATE-OR	VIEW
129	3,990,607	REVOLUTION SERIES	VIEW
130	4,002,733	PORCH2PORCH	VIEW
131	3,991,443	APEX ENERGY SOLUTIONS	VIEW
132	3,990,375	B2CATALYST	VIEW
133	3,990,283	RISE ‘N SHINE	VIEW
134	3,998,320	SOLARBOOST	VIEW
135	3,994,138	H2X MOMENTUM	VIEW

Overhauser Law Offices the publisher of this site, assists with US and foreign trademark searches, trademark applications and assists with enforcing trademarks via infringement litigation and licensing.

July 28, 2011

Indiana’s Unique Right to Publicity Law Examined

By Overhauser Law Offices, LLC

Indianapolis, IN – Indiana, like eighteen other states, has a right to publicity law that can be described as the right to control the commercial use of one’s identity. The right to publicity, sometimes called personality rights, are state law rights, unlike most intellectual property rights, which are federal rights. According to Wikipedia, Indiana’s right to publicity is considered to be the most far reaching right to publicity law in the world. Indiana’s current right of publicity law, I.C. 32-36-1 et seq., was enacted in 1994. Indiana’s law grants a proprietary interest to a personality’s name, voice, signature, photograph, image, likeness, distinctive appearance, gesture or mannerisms where the personality has commercial value. The law requires permission before another uses one’s personality for commercial purposes and provides for damages if the personality is used without consent. Rightofpublicity.com has an interesting blog entry on the history of the right to publicity.

Indiana Intellectual Property Law News blogged last month about the recent decision of the Southern District Court of Indiana in the Dillinger case. The Indiana Court of Appeals has also examined a case involving the right of publicity and coincidentally also concerning the John Dillinger personality. In that case, Phillips v. Scalf, 778 N.E.2d 480 (Ind. Ct. App. 2002), Scalf alleged he owned the Dillinger right to publicity and that Phillips was operating a restaurant in Steuben County that utilized the Dillinger personality without permission. This decision, however, involved the question of venue and did not substantively examine the right to publicity statute. Indeed, it appears that neither the Indiana Supreme Court nor the Indiana Court of Appeals have issued substantive decisions on the Indiana Right to Publicity.

July 28, 2011

Another Update to Hard Drive v. 21 Indiana John Does: Attorney Files Motion to Dismiss, Court May Strike Anonymous Letters

By Overhauser Law Offices, LLC

Indianapolis, IN – There have been further updates to the Hard Drive Productions case in the Southern District of Indianathat Intellectual Property Law News has been closely following. The Hard Drive case is one of three similar copyright infringement lawsuits in the Southern District of Indiana all involving file sharing of adult entertainment videos via BitTorrent. The other two are the Boy Racer case and the First Time Videos case.

In one development, an attorney has filed a motion to dismiss and motion to quash subpoena on behalf of one of the John Does, who remains unnamed but has his or her I.P. address listed on the motion. The motion to dismiss argues that the Court does not have personal jurisdiction since the John Doe does not live in or have sufficient contacts with Indiana and that the defendants have been misjoined since none of the controversies arise out of the same facts or occurrences. The motion also argues that a subpoena that has been served on internet service provider Comcast requesting the name and identifying information for this John Doe is unduly burdensome.

In another development, the Court has ordered the authors of the anonymous letters, subject of an Intellectual Property Law News blog last month, to appear before the court and show cause why their letters should not be stricken from the record. If the authors do not appear by September 9, the Court will strike their letters from the case docket.

July 26, 2011

Saeilo Enterprises Sues Scottwerx in Hamilton County for Trademark Infringement of Tommy Gun Mark: Case Removed to Federal Court

By Overhauser Law Offices, LLC

Indianapolis, IN – A trademark infringement lawsuit filed in Hamilton County, Indiana Superior Court was removed to Southern District of Indiana. Trademark lawyers for Saeilo Enterprises, Inc. of Pearl River, New York had filed a trademark infringement lawsuit in the Hamilton County Superior Court alleging Scottwerx LLC of LaCrescenta, California infringed trademark registration no.2,885,628 for the mark TOMMY GUN which has been registered with the US Trademark Office.

The complaint alleges that Scottwerx has manufactured, produced and sold replica firearm kits that bear Saeilo’s registered trademarks without authorization from Saeilo. The complaint has attached a picture from Scottwerx’s website of the allegedly infringing product. The complaint alleges Indiana courts have jurisdiction because Scottwerx offers the product for sale in Indiana. However, the complaint does not mention any specific sales in Indiana and only refers to Scottwerx’s website. Saeilo’s complaint asserts claims of federal trademark infringement, federal trademark dilution, false designation of origin, false advertising, trade dress infringement, common law trademark infringement, unfair competition, conversion, forgery, counterfeiting, and deception. The complaint seeks a permanent injunction, damages, treble damages, profits, attorney’s fees and costs.

Practice Tip: Last month, Saeilo filed a very similar trademark infringement lawsuit in Hamilton County that was also removed to federal court. Indiana Intellectual Property Law News blogged about that case here. That case alleged that Buzz Bee Toys infringed the same trademarks that are at issue in this lawsuit. According to PACER, trademark attorneys have reached a settlement in the Buzz Bee case. The terms of the settlement are undisclosed.