Indiana Intellectual Property Law News

May 27, 2021

Eli Lilly and Company Files Patent Infringement Lawsuit

Indianapolis, Indiana – Eli Lilly and Company (“Lilly”), the Plaintiff, apparently owns by assignment U.S. Patent No. 7,772,209 (the “‘209 Patent). According to the Complaint, Shilpa Medicare Limited (“Shilpa”), the Defendant, notified Lilly on November 12, 2020 that it had submitted to the U.S. Food and Drug Administration (“FDA”) a New Drug Application (“NDA”) seeking approval to manufacture and sell its Pemetrexed Injection products (“Shilpa’s NDA Products”) prior to the expiration of the ‘209 Patent. Apparently, that notification triggered “a forty-five-day period for Lilly to bring an action for patent infringement under the FDCA.”

Lilly is seeking a judgment that Shilpa has infringed the ‘209 Patent. Further, Lilly is seeking a “judgment ordering that the effective date of any FDA approval for Shilpa to make, use, offer for sale, sell, market, distribute, or import Shilpa’s NDA Products . . . be not earlier than the expiration date of the ‘209 patent.” In addition, Lilly is seeking a preliminary and permanent injunction and a declaration that this is an exceptional case pursuant to 35 U.S.C. § 285.

March 30, 2021

132 Indiana Trademarks Issued to Indiana Companies in February 2021

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 132 trademark registrations to persons and businesses in Indiana in February 2021 based on applications filed by Indiana trademark attorneys:

	Reg. Number	Word Mark
1	6261981	HOPE-FULL LIVING
2	6277718	CZ ZEROCARB LYFE
3	6277112	FIRST CLASS LIFE
4	6276978	MARKETTREND
5	6276678	XSOFT

March 26, 2021

Honorable Tanya Walton-Pratt Sworn in as Chief Judge

By Overhauser Law Offices, LLC

The United States District Court for the Southern District of Indiana is under new leadership. The Honorable Tanya Walton-Pratt was sworn in on March 20, 2021 and is the first person of color to serve as the Southern District of Indiana’s chief judge. She succeeds Judge Jane E. Magnus-Stinson. Chief Judge Pratt was appointed as a district judge on June 15, 2010, becoming the first African-American federal judge in Indiana history.

Chief Judge Pratt was elected Marion Superior Court Judge in November 1996. She also served as Master Commissioner for the Marion Superior Court since 1993 after practicing privately. From 1997 to 2008, Chief Judge Pratt served as Presiding Judge of the Criminal Division of the Superior Court, handling major felonies, presiding over 20 to 35 jury trials a year, as well as supervising the juvenile detention center. From 2008 until her appointment to the bench of the District Court, she served as a judge in the Marion Superior Court, Probate Division.

March 16, 2021

Indiana Resident Sues Amazon for Alleged Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Allen L. Asher-Butler (“Asher”), the Plaintiff, claims he designed and illustrated the covers for at least four books (the “Books”). Asher claims Defendants, Amazon-KDP and Jeffrey Bezo (collectively “Amazon”) have been selling the Books authored by William “Will” Wills since 2009 without his authorization. According to the Complaint, Asher filed a claim of copyright infringement with Amazon but apparently the Books have still been sold in both Kindle and paperback versions.

Asher is seeking damages for the sales of the Books in the form of a percentage of sales as a royalty. The approximate amount of royalties claimed by Asher is $5.4 million. Asher is further seeking to recover all court costs and fees.

March 8, 2021

Patent Infringement Case Transferred to the Southern District of Indiana

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Wonderland Switzerland AG (“Wonderland”), the Plaintiff and resident of Switzerland, originally filed suit in the Central District of California for patent infringement against Defendant, Dorel Juvenile Group, Inc. (“Dorel”), an Indiana-based company,. The Complaint asserted three claims concerning three different patents relating to car seats and strollers filed a motion to dismiss or transfer the case for improper venue.

Pursuant to 28 U.S.C. § 1404(a), “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties consented.” According to the Court’s Order, while ordinarily a “defendant must make a strong showing of inconvenience to warrant upsetting the plaintiff’s choice of forum,” “where the plaintiff is a non-resident of the forum, and/or the case has relatively little connection to the chosen forum, the Plaintiff’s choice of forum does not enjoy that type of benefit on a Section 1404(a) motion.”

The Court held that the factors for transfer weighed heavily in Dorel’s favor. Further, the Court noted that “[t]o the extent a transfer of this action to Indiana is a ‘shifting of inconveniences,’ the only ‘convenience’ factor it negates for Plaintiff is a potential relative ease of traveling from Switzerland . . . to Los Angeles over traveling from Switzerland . . . to Indiana.” Therefore, the action was transferred to the Southern District of Indiana for further proceedings and the improper venue portion of the motion was denied as moot.

March 4, 2021

Indiana Copyright Litigation: Odyssey Media Group Sued for Alleged Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Apparently, Larry Philpot is a well-known photographer of musicians and concerts across the United States. Mr. Philpot has also filed numerous copyright infringement lawsuits over recent years. According to the Complaint, Mr. Philpot took a photograph of Ted Nugent and registered it with the U.S. Copyright Office under Registration No. VAu 1-164-624 (the “Photo”).

Mr. Philpot claims Odyssey Media Group, Inc. (“Odyssey”), the Defendant, used the Photo on its website without his permission or authorization in connection with an article titled “36 ‘Celebrities’ That Openly Support Trump.” Per the Complaint, Odyssey did not attempt to license the Photo for use, copying, publication, or display. Due to the alleged copyright infringement, Mr. Philpot is seeking actual compensatory damages, the disgorgement of profits, or statutory damages pursuant to 17 U.S.C. § 504 and his costs and attorneys’ fees pursuant to 17 U.S.C. § 505.

March 3, 2021

Intellectual Property Case Noticed for Removal

By Overhauser Law Offices, LLC

Kenneth Zweigel, Content & Commerce, Inc., Kevin Detrude, and My K9 Behaves, LLC, the Defendants, filed a Notice of Removal from Hamilton County Superior Court 4 to the U.S. District Court for the Southern District of Indiana for a lawsuit originally filed by Show Colors, Inc., Donna Chandler and Derivative Plaintiff My K9 Behaves, LLC, the Plaintiffs. According to the Notice, the Southern District has jurisdiction pursuant to the Copyright Act, Lanham Act, and the Declaratory Relief Act (28 U.S.C. §§ 2201 and 2202).

Apparently, the Plaintiffs’ Complaint alleges and “seeks relief regarding the proper owner of various copyrights, trademarks, and the derivative works related thereto.” Therefore, the Defendants claim the “action cannot be adjudicated without the interpretation of federal laws of the United States.”

February 26, 2021

Patent Office issues 166 Patents to Indiana Citizens in January 2021

By Overhauser Law Offices, LLC

The U.S. Patent Office issued the following 166 patent registrations to persons and businesses in Indiana in January 2021, based on applications filed by Indiana patent attorneys:

	Patent No.	Title
1	D0908,592	Skidsteer rack
2	D0908,469	Trim
3	10,904,837	Systems and methods for controlling electronically operable access devices using WI-FI and radio frequency technology
4	10,904,317	System and method for identifying publicly available cameras
5	10,904,224	Aircraft engine monitoring system.

February 25, 2021

Rylie Investments LLC Sued for Alleged Trademark Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Apparently, Armored Heating and Cooling Inc. (“AHC”), the Plaintiff, “is a leading provider of residential and commercial HVAC repair, service, sales and installations in central Indiana.” AHC claims the Defendant, Rylie Investments LLC (“Rylie”) also provides HVAC services in Indiana under the name “Armor Air.”

AHC claims to own U.S. Trademark Application Serial No. 90/058,569, U.S. Trademark Application Serial No. 90/084,330 and Indiana Trademark Registration ID 2020000026067 (the “AHC Trademarks”). According to the Complaint, Rylie filed a federal trademark application for the mark “ARMOR AIR” on July 20, 2020 under Application Serial No. 90/061,501. AHC further claims Rylie advertises its HVAC services despite not being a licensed HVAC contractor in Indianapolis, Indiana. Finally, AHC claims customers have been confused between the two companies and customers have complained that Rylie’s services are inferior and of poor quality.

AHC claims Rylie is liable for trademark infringement of the AHC Trademarks, false designation of origin, and unfair competition under the Lanham Act, 15 U.S.C. § 1125(a), and the common law. AHC is further seeking an injunction for trademark infringement pursuant to Ind. Code §§ 24-2-1-13 and 24-2-1-14.

February 19, 2021

WishBone Medical, Inc. Sued for Alleged Patent Infringement

By Overhauser Law Offices, LLC

Warsaw, Indiana – Apparently Orthopediatrics Corp. and Orthex, LLC (collectively “Ortho”), the Plaintiffs, own a patented method of fixing broken or deformed bones, United States Patent No. 10,258,377 (the “‘377 Patent”). Ortho claims Defendants, WishBone Medical, Inc. (“WishBone”) and Nick A. Deeter (“Deeter”), have infringed the ‘377 Patent. According to the Complaint, Deeter was an employee of Ortho from 2006 to 2013. Thereafter, Deeter apparently started WishBone in 2016.

Ortho claims WishBone’s “Smart Correction® External Fixation System” not only infringes the ’377 Patent, but that “WishBone admittedly knew of the ‘377 Patent by no later than June 2019, but proceeded to move forwarded [sic] with its infringing, copycat system.” Additionally, Ortho claims Deeter has breached his severance agreement in which he agreed not to disparage Ortho.

Ortho is seeking enhanced damages and attorneys’ fees for patent infringement pursuant to 35 U.S.C. §§ 284 and 285. Further, Ortho is seeking damages for unfair competition and false advertising under the Lanham Act. Finally, pursuant to Indiana common law, Ortho is suing Deeter for breach of contract, and both Defendants for defamation, tortious interference with contractual relationships, and tortious interference with prospective contractual relationships.