Indiana Intellectual Property Law News

June 13, 2011

AirFx LLC Sues Custom Cycle Control Systems, Inc., J.D. Braun, Dr. V-Twin, Inc. and M.C. Advantages for Patent Infringement of Motorcycle Suspension

Indianapolis, IN – Patent lawyers for AirFx LLC of Indianapolis, Indiana filed two patent infringement lawsuits in the Southern District of Indiana alleging Custom Cycle Control Systems, Inc. of Las Vegas, Nevada, J.D. Braun, of Los Angeles, California, doing business as Goldenstate Custom Cycles, Dr. V-Twin, Inc. of Sherman Oaks, California, and M.C. Advantages, of Grimes, Iowa, infringed Patent No. 7,559,396 B2, Motorcycle air suspension system, which has been issued by the US Patent Office.

In the first case, the complaint alleges that AirFx received a defective product made by Custom Cycle Control Systems from a customer, who believed he had purchased an AirFx product that utilized the patented technology. AirFx claims that Custom Cycle has been manufacturing and selling products that infringe its patent and that the inferior products of Custom Cycle have damaged the reputation of AirFx. This case has been assigned to Chief Judge Richard L. Young and Magistrate Judge Tim A. Baker in the Southern District of Indiana, and assigned Case No. 1:11-cv-00803-RLY-TAB.

In the second patent infringement suit, the complaint alleges that J.D. Braun created a motorcycle suspension system called the “Shotgun Shock” that infringes AirFx’s patent. The complaint alleges that all three defendants manufacture and sell the infringing “Shotgun Shock.” AirFx has made a claim of patent infringement against Braun, Dr. V-Twin and M.C. Advantages and an unfair competition claim against J.D. Braun, claiming that Braun has falsely told customers that he invented the patented technology.

Practice Tip: The claims alleged by AirFx seem to indicate that there is some confusion in the marketplace about the origin and inventor of the patented motorcycle suspension technology. In addition to the patent infringement claims, AirFx might consider adding trademark-related claims if any of the defendants are using AirFx’s trademarks for their sales.

June 9, 2011

U.S. Supreme Court Affirms Strong Presumption of Patent Validity in Microsoft v. i4i LP

By Overhauser Law Offices, LLC

Washington, D.C. – The United States Supreme Court has issued a decision in Microsoft v. i4i LP, against Microsoft and unanimously reaffirming that patents are presumed to be valid at the standard of clear and convincing.

Microsoft had argued for a lower standard of the presumption of validity. The decision will require Microsoft to pay i4i over $290 million in damages.

Patent attorneys for i4i brought this suit against Microsoft alleging that Microsoft infringed i4i’s patent for a method of editing computer documents. Microsoft used the patented technology in its Microsoft Word program.

June 9, 2011

Alcon Research Sues Watson Laboratories Inc for Patent Infringement of Allergy Eye Drops

By Overhauser Law Offices, LLC

Indianapolis, IN – Patent lawyers for Alcon Research Ltd of Fort Worth, Texas, Alcon Pharmaceuticals LTD of Switzerland, and Kyowa Haddo Kirin Co. of Japan filed a patent infringement in alleging Watson Laboratories Inc and Watson Pharma, Inc. of Parsippany, New Jersey, and Watson Laboratories, of Corona, California, infringed the following patent prior to the expiration:

Patent No. 5,641,805, Topical ophthalmic formulations for treating allergic eye diseases, Patent No. 6,995,186, Olopatadine formulations for topical administration and Patent No. 7,402,609, Olopatadine formulations for topical administration, which have been issued by the US Patent Office.

The Complaint alleges that Watson has filed an Abbreviated New Drug Application (“ANDA”) with the Food and Drug Administration “seeking approval to manufacture and sell a generic version of PATADAY™ ophthalmic solution,” a drug product that is covered by several patents owned by Alcon. The Complaint states that Watson sent a letter to Alcon on April 27, 2011 notifying Alcon of Watson’s ANDA and intent to manufacture and sells products covered by the ADNA. According to Alcon, Watson’s April 27 letter and ANDA stated that Alcon’s patents are invalid, unenforceable and/or will not be infringed. Alcon has made three claims of patent infringement and three claims for a declaratory judgment of infringement. Alcon’s patent attorneys are seeking an injunction, declaratory judgment, attorney’s fees and costs. Alcon has alleged that the basis for jurisdiction of the Southern District of Indiana is that Watson markets and sells drug products nationwide and in Indiana.

Practice Tip: Alcon’s patent attorneys filed this case before apparently before Watson actually sold any allegedly infringing products. Hence, they are seeking an injunction to prevent any potentially infringing sales as well as a declaration judgment of infringement, rather than monetary damages. These remedies, if granted, could prevent monetary damages that could occur if infringing products are sold. The Patent Act, 35 U.S.C. § 283, allows a court with jurisdiction to grant an injunction “to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.”

June 9, 2011

Gabbard Sues VMB LLC, Music Factory Direct for Copyright Infringement of Music Web Graphic

By Overhauser Law Offices, LLC

South Bend, IN – Copyright lawyers for Joel Gabbard of Fort Wayne, Indiana filed a copyright infringement in alleging VMB LLC, doing business as Music Factory Direct, and Vento LLC, both of Cassopolis, Michigan, infringed Copyright Registration No. VA0001734862, WEB GRAPHICS; which has been registered by the US Copyright Office.

The Complaint alleges that Mr. Gabbard and VMB entered a contract where Mr. Gabbard granted a license to VMB to use the copyrighted work in VMB’s advertisements on eBay, amazon.com, and ChannelAdvisor. The license contract stated that the graphics were to “be used exclusively for the above mentioned projects. All alterations, updates, and revisions must be first approved by the author.” The Complaint alleges that on August 22, 2010 VMB sent out a promotional e-mail utilizing Mr. Gabbard’s copyrighted work. Mr. Gabbard’s copyright attorneys claim this e-mail was not authorized by the license agreement and therefore was copyright infringement. Mr. Gabbard seeks an injunction, damages, costs, attorney fees, for an order impounding all copies made or used and has requested “The Defendants be required to notify all present and prospective customers of the infringement and that the proper ownership of the materials is Mr. Gabbard.”

Practice Tip: In addition to injunction and damages, this plaintiff is also seeking an impounding order and for the defendants to notify customers that it has infringed the plaintiff’s copyright. The applicable copyright law, 17 U.S.C. § 503, does allow for a court issue an order impounding all copies of the copyrighted work. The plaintiff’s request that customers be informed of the infringement, however, would be an unusual remedy and not specifically provided for in the copyright laws.

June 7, 2011

Richard N. Bell Files Two Copyright Infringement Lawsuits Regarding Photographs of Indianapolis

By Overhauser Law Offices, LLC

Indianapolis; IN – Attorney Richard N. Bell of Indianapolis, Indiana filed two copyright infringement lawsuits regarding photographs of Indianapolis that Mr. Bell took. The first copyright infringement suit alleges Cameron Taylor and Taylor Computer Solutions of Indianapolis, Indiana, Event Premium Tickets of North Fort Myers, Florida, Fred O’Brien and Insurance Concepts of Plainfield, Indiana, Premium Sport Tours of Australia, ForeclosureWarehouse.com, and The Fixx Hair Studio of Indianapolis infringed Mr. Bell’s copyrighted work Indianapolis Photo. Mr. Bell alleges that the defendants used the photograph for commercial use without authorization and without payment to Mr. Bell. On his copyright infringement claim, Mr. Bell seeks an injunction, damages, a declaration of violation of Mr. Bell’s copyright, costs, and attorney fees. Mr. Bell has also made a claim of theft, alleging “the Defendant has knowingly or intentionally exerts unauthorized control over property of the Plaintiff[.]” On the theft count, Mr. Bell seeks actual and punitive damages, costs and attorney fees.

The second copyright infringement suit alleges Indy Cleaning Pros and James and Karen Allan of Indianapolis, Indiana infringed Mr. Bell’s copyrighted work INDIANAPOLIS SKYLINE PHOTO. Neither photo has been registered by the US Copyright Office. The complaint alleges that Indy Cleaning Pros and the Allans have used the copyrighted photo in advertising material without Mr. Bell’s authorization and without compensating Mr. Bell. On his copyright infringement claim, Mr. Bell seeks an injunction, damages, a declaration of violation of Mr. Bell’s copyright, costs, and attorney fees. Mr. Bell has also made a claim of theft, alleging “the Defendant has knowingly or intentionally exerts unauthorized control over property of the Plaintiff[.]” On the theft count, Mr. Bell seeks actual and punitive damages, costs and attorney fees.

Practice Tip: In this case, in addition to claiming copyright infringement, the Plaintiff has made claims of theft based upon allegations of unauthorized use of the photographs. In 1985, however, the U.S. Supreme Court held in Dowling v. United States, 473 U.S. 207 (1985), that a copyright infringer could not be criminally charged under the federal criminal theft statute. The Court noted “The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use.”

June 7, 2011

FirePASS IP Holdings Sues Bombardier, Inc for Patent Infringement of Hypoxic Fire Prevention and Suppressive Systems in CS300 Aircraft Sold to Republic Airways

By Overhauser Law Offices, LLC

Indianapolis, IN – Patent lawyers for FirePASS IP Holdings and FirePASS Corporation of New York, New York filed a patent infringement lawsuit alleging Bombardier, Inc. of Montreal, Canada, and Bombardier Aerospace Corporation, of Richardson, Texas, infringed Patent Numbers RE 40,065, HYPOXIC FIRE PREVENTION AND FIRE SUPPRESSION SYSTEMS FOR COMPUTER CABINETS AND FIRE-HAZARDOUSINDUSTRIAL CONTAINERS 6,418,752, HYPOXIC FIRE PREVENTION AND FIRE SUPPRESSION SYSTEMS AND BREATHABLE FIRE EXTINGUISHING COMPOSITIONS FOR HUMAN OCCUPIED ENVIRONMENTS, Patent No. 6,314,754,HYPOXIC FIRE PREVENTION AND FIRE SUPPRESSION SYSTEMS FOR COMPUTER ROOMS AND OTHER HUMAN OCCUPIED FACILITIES, Patent No.7,207,392, METHOD OF PREVENTINGFIRE IN COMPUTER ROOM AND OTHER ENCLOSED FACILITIES which have been issued by the US Patent Office.

The complaint alleges that Bombardier sells and offers to sell products that infringe FirePASS’s patents. Specifically, FirePASS alleges that Bombardier has a contract to sell 40 CS300 aircraft to Republic Airways of Indianapolis, valued at $3.2 billion. FirePASS alleges that the aircraft contain flammability reduction means that infringe FirePASS’s patented technology. The Federal Aviation Administration has implemented new regulation requiring additional flammability reduction means to prevent fuel tank fires in aircraft. FirePASS seeks a declaratory judgment of infringement, damages and an injunction.

Practice Tip: According to a press release by FirePASS, the FAA adopted FirePASS’s technology and has required its use to protect fuel tanks on commercial aircraft. In this case, FirePASS claims the patent infringement occurred either “literally or under the doctrine of equivalents.” Apparently, FirePASS is taking the position that any new aircraft made that comply with the FAA’s new regulation would infringe FirePASS’s patents. The Doctrine of Equivalents “allows a court to hold a party liable for patent infringement even though the infringing device or process does not fall within the literal scope of a patent claim, but nevertheless is equivalent to the claimed invention.” The legal test, articulated in Warner-Jenkinson Co. v. Hilton Davis Chem. Co. (1997), is whether the difference between the limitation in the accused device and the limitation literally recited in the patent claim is “insubstantial.”

June 6, 2011

U.S. Supreme Court Sides with Roche in Patent Ownership Controversy

By Overhauser Law Offices, LLC

Washington, D.C. – The United States Supreme Court has issued its opinion in Board of Trustees of the Leland Stanford Junior University v. Roche Molecular Systems, a patent ownership case. The Court held that the Bayh-Dole Act,35 U.S.C. §§ 200-212, “does not automatically vest title to federally funded inventions in federal contractors or authorize contractors to unilaterally take title to such inventions.” The decision affirmed the Federal Circuit Court‘s decision below. Justice Roberts delivered the opinion, which Justices Scalia, Thomas, Kennedy, Alito, Sotomayor, and Kagen joined. Justices Breyer and Ginsberg dissented.

In this case, an inventor performed some research while he worked for Stanford University and had signed a patent ownership assignment agreement with Stanford. The inventor later left this employment and performed further research, culminating in an invention, while employed by Roche. He had also signed a patent assignment agreement with Roche. Essentially, controversy was over whether Stanford or Roche had a valid assignment of the patent rights. The Supreme Court’s decision sided with Roche.

An analysis by the SCOTUS blog noted “Of particular interest to Court watchers, the Court paid no heed in either case to the views of the Solicitor General, which usually has a high degree of success in pressing government views on the Court, especially in statutory cases, and has led much of the charge criticizing Federal Circuit doctrines in the past.”

June 6, 2011

Federal Circuit Applies Analogous Art Test to Exclude Prior Art References from Obviousness Analysis

By Overhauser Law Offices, LLC

Washington, DC – In a decision that may impact both patent prosecutors and litigators, the United States Court of Appeals for the Federal Circuit applied the analogous-art test to exclude certain prior art references from the consideration of whether a claimed invention was obvious in light of the prior art.In this case, patent applicant Arnold Klein appealed the rejection of certain claims in U.S. Patent Application No. 10/200,747 as obvious under 35 U.S.C. § 103. The relatively simple technology at issue is “a mixing device for use in preparation of sugar-water nectar for certain bird and butterfly feeders,” with sugar and water compartments separated by a removable divider. The placement of the divider can vary, depending on the species of bird to be fed. The device maintains a proper nectar ratio so long as water and sugar are at the same “line of sight” level.Citing prior art patents, the examiner at the USPTO made five rejections, each based on the notion that Mr. Klein’s invention would be obvious to one of ordinary skill in the art, and these rejections were each affirmed by the Board of Patent Appeals and Interferences (“the Board”).

Noting that a reference qualifies as prior art for an obviousness determination under § 103 only when it is “analogous” to the claimed invention, the Federal Circuit initially focused on the particular problem being solved by Mr. Klein and narrowly stated it as: “making a nectar feeder with a movable divider to prepare different ratios of sugar and water for different animals.” The court found that the three cited prior art references (respectively disclosing a type of drawer, a particular tray, and an “apparatus for keeping accounts”) which feature solid item separators are not pertinent to this problem “since none of these three references shows a partitioned container that is adapted to receive water or contain it long enough to be able to prepare different ratios in the different compartments.”

As for the two remaining prior art references (disclosing a type of “blood plasma bottle” and a certain fluid container), they are directed at dividing liquids which are mixed later; the Federal Circuit concluded that neither of these references are pertinent to Mr. Klein’s invention “because they do not address multiple ratios or have a ‘movable divider’.” Because none of the cited references were completely analogous to the stated problem, no grounds remained to support the obviousness rejections, and the Board’s decision was reversed.

June 3, 2011

Saeilo Enterprises, Inc. Sues Buzz Bee Toys, Inc. for Trademark Infringement of Tommy Gun Registered Trademark in Hamilton County, But Case Removed to Federal Court

By Overhauser Law Offices, LLC

Indianapolis, IN – Trademark lawyers for Saeilo Enterprises, Inc. of Pearl River, New York filed a trademark infringement suit alleging Buzz Bee Toys, Inc. of Mt. Laurel, New Jersey infringed the following trademarks: Trademark Registration No. 2,885,628 for the mark TOMMY GUN filed with the US Trademark Office and Indiana State Registration No. 20090707-13956, Registration No. 20090707-13957, and Registration No. 20090707-13958 for the TOMMY GUN design marks filed with the Indiana Secretary of State.

Saeilo originally filed the lawsuit in Hamilton County Superior Court. Trademark attorneys for Buzz Bee, however, successfully moved to remove the case to federal district court, noting that federal court has jurisdiction due to the federal trademark claim and the diversity of the parties. According to the complaint filed by Saeilo, Buzz Bee offers for sale toy guns using the words “Tommy” on the packaging.

The complaint states that the infringing conduct occurred in Hamilton County, Indiana, but does not specify when or where. Saeilo has attached pictures of the toy guns and packaging that appear to be in store and being offered for sale. Pictures of the allegedly infringing toy guns are also online, but the complaint does not make reference to Buzz Bee’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: The complaint was signed by a lawyer at Continental Enterprises, which is an Indianapolis corporation that claims to “non-traditional strategies to combat infringers domestically and around the globe and provide effective solutions for seemingly intractable IP problems.” Continental Enterprises, however, has recently been the subject of highly critical press coverage. For example, one website accused the company of “using untrained staff to troll the internet for victims.”

June 3, 2011

Lisa Angle Sues Math-U-See, Inc. et al. for Copyright Infringement of Home Schooling Curriculum Materials

By Overhauser Law Offices, LLC

South Bend, IN – Copyright lawyers for Susan Lynch, of Indiana, Math-U-See Indiana, Inc. of Indiana, and Lisa and Jim Angle, of Idaho, filed a breach of contract and copyright infringement suit alleging Math-U-See, Inc. of Lancaster, Pennsylvania, and Steve and Ethan Demme infringed the works CALCULUS WORKS, RECORDED CALCULUS LESSONS, HONORS BOOKS, PRE-CALCULUS WORKS, ALGEBRA 2 AND QUIZ WORKS, and TEST BOOKLETS.

The complaint alleges that Steve Demme owns Math-U-See, Inc. and invented the Math-U-See curriculum for home schooling parents in the early 1990s. Steve Demme used a business model of having individual representatives and distributors to sell the Math-U-See curriculum. The plaintiffs were “Reps,” and Plaintiff Lisa Angle also wrote additional material for Math-U-See, which are the copyrighted works that the copyright infringement claim is based upon. The complaint alleges that Sue Lynch was the Rep for Indiana and Illinois beginning in 1996 and built sales to hundreds of thousands of dollars by 2009. Lisa and Jim Angle were Reps for Montana, North Dakota, Alabama, and Tennessee. The complaint alleges that in 2010 Steve Demme, with help of Ethan Demme, ended the representative business model and cut the plaintiffs out of selling the Math-U-See curriculum. Ms. Angle claims that the Defendants continued to use the copyrighted materials she created after the agreement was terminated and without Ms. Angle’s permission. The complaint makes claims of breach of contract, breach of good faith, breach of fiduciary duty, violation of Indiana Franchise Act, violation of Illinois Franchise Act, violation of the Idaho Unfair Trade Practices Act, violation of Illinois Unfair Trade Practices Act, violation of Tennessee Unfair Trade Practices Act, Violation of Law 75 of Puerto Rico, tortuous interference with contract, tortuous interference with prospective business relations, wrongful conversion of customer list, promissory estoppel, unjust enrichment/quantum meruit, accounting and six counts of copyright infringement. The plaintiffs seek actual and punitive damages, an injunction prohibiting further distribution of the copyrighted works, costs and attorney fees.

Practice Tip: In this case, Ms. Angle claims she is the author and rightful owner of the copyrights to the works described in the complaint. She claims the defendants violated 17 U.S.C. 106 of the Copyright Act. Ms. Angle has not formally registered her copyrights with the US Copyright Office, however, this is not a necessity for her infringement claims to succeed. Rather, the Copyright Act provides that “Copyright in a work protected under this title vests initially in the author or authors of the work.”