Indiana Intellectual Property Law News

November 25, 2019

Indiana Trademark Litigation: Three Floyds Brewing LLC of Munster, Indiana Seeks Damages for Alleged Trademark Infringement

Hammond, Indiana – Attorneys for Plaintiff, Three Floyds Brewing LLC (“Three Floyds”) of Munster, Indiana filed suit in the Northern District of Indiana alleging that Defendants, Floyd’s Spiked Beverages LLC and Lawrence Trachtenbroit, both of Basking Ridge, New Jersey, infringed its rights in United States Trademark Registration Nos. 3,853,136, 4,759,863, 4,341,332 and 5,781,941 (collectively the “Three Floyds’ Marks”). Plaintiff is seeking actual damages, punitive damages, pre and post judgment interest, and attorneys’ fees..

Three Floyds claims to be one of the top craft brewers in the United States, selling under the trade name and mark “THREE FLOYDS” since 1996. Two of the Three Floyds’ Marks at issue in this case are claimed to be incontestable by Three Floyds pursuant to 15 U.S.C. § 1065. Three Floyds further claims that its marks have become publicly identifiable and that its customers frequently shorten the Three Floyds’ Marks to “‘FLOYDS’ and refer to ‘FLOYDS’ as the source of Three Floyds’ products and services.”

According to the Complaint, Defendants produce and sell alcoholic lemonade and tea beverages under the name “Floyd’s”. Defendants allegedly filed U.S. Trademark Application Serial No. 87922801 (the “First Application”) with the USPTO for a stylized FLOYD’s logo (the “Floyd’s logo”) for “Alcoholic beverages, except beer” on May 15, 2018. Defendants claimed to have used the Floyd’s logo in commerce since at least May 1, 2018. On or about November 5, 2018, it is alleged that Defendants filed U.S. Trademark Application Serial No. 88181124 (the “Second Application”) with the USPTO to register the mark “FLOYD’S” for “Beer-based coolers” and claimed to have used the mark in commerce since at least January 1, 2018.

November 18, 2019

Indiana Patent Litigation: Indiana Court Denies Motion for Preliminary Injunction in RV Range Oven Case

By Overhauser Law Offices, LLC

Hammond, Indiana – The Northern District of Indiana, South Bend Division, issued its Opinion and Order denying a Motion for Preliminary Injunction in the case of Furrion Property Holding Limited, and Furrion Limited (collectively “Furrion”) versus Way Interglobal Network, LLC (“Way Interglobal”). This case was filed by Furrion in July 2019 alleging Way Interglobal’s oven infringed Furrion’s 2 in 1 Range Oven. Furrion then moved for a preliminary injunction, barring any further sales of the allegedly infringing product until the lawsuit was decided. The Court held Furrion “failed to meet its burden of showing irreparable harm”, and therefore denied the Motion for a Preliminary Injunction.

Furrion, as evidence of intentional copying and infringement, claims the user manual produced by Way Interglobal utilizes identical language to Furrion’s manual. While that could be an exceptional coincidence, Judge Simon found the images included in Way Interglobal’s manual included images of Furrion’s 2 in 1 Range Oven including Furrion’s trademarked logo. Way Interglobal’s CEO and president, Wayne Kaylor, testified that he was unaware of the similarities in the user manuals and speculated that the Chinese manufacturer who writes the user manual may have taken a shortcut when preparing the manual. Kaylor further testified that Way Interglobal had heard rumors that Furrion was alleging Way Interglobal’s range oven infringed Furrion’s patents in or around July 2018 and that “Way Interglobal changed the metal grate of its gas range to distinguish it from Furrion’s” without admitting any infringement.

To find in favor of Furrion’s motion for preliminary injunction, Furrion must show “(1) a likelihood of success on the merits . . . ; (2) a likelihood of irreparable harm if the injunction is not granted; (3) the balance of hardships between the parties favors an injunction; and (4) the public interest likewise favors an injunction.” PHG Techs., LLC v. St. John Companies, Inc., 469 F.3d 1361, 1365 (Fed. Cir. 2006). “[I]f the moving party fails to clear the likelihood of success and irreparable harm hurdles, ‘a court’s inquiry is over and the injunction must be denied” in the Seventh Circuit. Abbott Labs v. Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992). However, if the moving party shows all four elements, the court weighs he factors in deciding whether to grant the injunction.

November 13, 2019

United States Patent Trial and Appeal Board Rules in Favor of Lippert Components in RV Leveling Patent Dispute

By Overhauser Law Offices, LLC

The Petitioner, Lippert Components, Inc. (“Lippert”), filed a Petition for inter partes review of claims 12 and 13 of Days Corporation’s (“Days”) United States Patent No. 6,619,693 B1 (the “‘693 Patent”) for “Apparatus and Method for Automatically Leveling an Object”. In addition to filing its Reply and Sur-Reply to the inter partes review, Days also filed a Motion to Amend the ‘693 Patent. Days also filed a Motion to Exclude Evidence prior to the oral hearing. The United States Patent Trial and Appeal Board (the “PTAB”) determined claims 12 and 13 of the ‘693 Patent are unpatentable, denied Days’ Motion to Amend, and dismissed Days’ Motion to Exclude as moot.

The ‘693 Patent “discloses an apparatus for automatically leveling a vehicle, such as a recreational vehicle, that is located on uneven terrain or an out-of-level surface.” The vehicle to be leveled contains four adjustable legs that can be manually lowered and raised to achieve a feeling of true level relative to horizontal in the interior of the vehicle. The leveling process can also be performed automatically with the use of a controller. The person having ordinary skill in the art for the Court’s analysis was found to be a person having “either a bachelor’s degree in engineering, preferably mechanical or electrical, or at least five years of work experience in the field of vehicle leveling systems and related equipment.”

The PTAB interpreted the claims 12 and 13 of the ‘693 Patent using the “broadest reasonable construction in light of the patent’s specification.” See 37 C.F.R. § 42.100(b) (2018). The term “reference level plane”, when referring to a pre-set vehicle orientation plane, may be construed to be a plane in which the vehicle feels at true level to horizontal. In claims 12 and 13, there are two identical “Sensor Limitations”. Those Sensor Limitations are “a sensor . . . to sense pitch and roll of the vehicle relative to a reference level plane,” and “the sensor produces an orientation signal representing the vehicle pitch and roll.” In this case, the PTAB agreed with Lippert in that when construed “under the broadest reasonable construction in light of the ‘693 patent specification, claims 12 and 13 do not require the sensor to be aligned directly along the vehicle’s longitudinal and lateral axes.” The PTAB further stated that “[c]onstruing claims 12 and 13 to be limited to a sensor that must be aligned directly along the vehicle’s longitudinal and lateral axes would improperly incorporate a limitation into the claims from the specification.”

November 12, 2019

Indiana Copyright Litigation: German Photographer Sues Elkhart-Based Company, Good Living Enterprises Inc., for Alleged Copyright Infringement

By Overhauser Law Offices, LLC

Elkhart, Indiana – Attorneys for Plaintiff, Paul Steeger (“Steeger”) of Germany, filed suit in the Northern District of Indiana alleging that Defendant, Good Living Enterprises Inc. (“Good Living”) of Elkhart, Indiana, infringed his rights in United States Copyright Registration No. VA 2-056-056. Steeger is seeking actual damages, punitive damages, attorney’s fees and costs, pre-judgment interest, and any other relief the court deems proper.

Steeger, a professional photographer, claims he is in the business of licensing his photographs for a fee. In this case, Steeger claims he photographed a leaf in water (the “Photograph”) and registered it with the United States Copyright Office. Steeger claims Good Living posted the Photograph on its website without a license, permission, or consent from Steeger. As such, Steeger is seeking damages for copyright infringement pursuant to 17 U.S.C. §§ 106 and 501.

November 11, 2019

Chief Judge Springmann to take Senior Status

By Overhauser Law Offices, LLC

Chief Judge Theresa Lazar Springmann has announced that she will take senior status starting in January 2021. She presently presides in the Hammond, Indiana Division.

Judge Springmann was appointed to the bench as a District Judge in June 2003. Prior to then she served as a magistrate Judge for the Northern District of Indiana since 1995. As of September 2019, she has completed 111 trials during her tenure, which are reported here.

As a result of her announcement, U.S. Senators Todd Young (R-Ind.) and Mike Braun (R-Ind.) are seeking applications for qualified individuals to fill the vacancy. Individuals can access the applicant questionnaire here. Two physical copies of the application must be submitted by December 9, 2019, to Senator Young’s Indianapolis office located at 251 North Illinois Street, Suite 120, Indianapolis, IN 46204.

November 6, 2019

Cummins Reports Wins in Patent and Trademark Infringement Suits

By Overhauser Law Offices, LLC

Cummins Inc. of Columbus, Indiana has announced success in legal actions against Turbotechsnab LLC and Weifang Yuhang Turbocharger Co. Ltd. for infringement of Cummins’ trademarks and patents.

In a decision reached by the Moscow City Arbitrazh Court, Turbotechsnab was held to have infringed Cummins’ HOLSET trademarks. The court awarded an injunction against Turbotechsnab prohibiting further illegal use of Cummins’ HOLSET trademarks in connection with selling, offering to sell, storing and advertising turbochargers. Additionally, the court ordered Turbotechsnab to pay damages and fees to Cummins.

As part of the settlement with Weifang Yuhang Turbocharger Co. Ltd., that company agreed to cease and desist purchasing, making and selling any nozzle ring product that infringes Cummins’ patents, and agreed to destroy all existing infringing stock.

November 5, 2019

Indiana Patent Litigation: Tenstreet, LLC’s Software Patent Held Invalid Due to Patent-Ineligible Claims

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Tenstreet, LLC (“Tenstreet”) of Tulsa, Oklahoma, filed suit in the Southern District of Indiana alleging that Defendant, DriverReach, LLC (“DriverReach”) of Indianapolis, Indiana, infringed its rights in United States Patent No. 8,145,575 (the “‘575 Patent”) for “Peer to Peer Sharing of Job Applicant Information”. Defendant moved to dismiss the Complaint and the Court has now granted that motion. This case was described on this site here.

Tenstreet develops products for the transportation industry such as its Xchange^TMnetwork to help share job applicant verification data between employers, past and present, for commercial truck drivers. The ‘575 Patent, obtained by Tenstreet on March 27, 2012, claims to streamline the verification process between past and prospective employers while giving the drivers a chance to review and correct information before it is sent to the prospective employer. DriverReach allegedly sells its own employment verification product, VOE Plus Solutions. Tenstreet claimed VOE Plus Solutions infringed on the ‘575 Patent. DriverReach moved the Court to dismiss Tenstreet’s claims “on the ground that the ‘575 patent is patent-ineligible subject matter under 35 U.S.C. § 101.”

Pursuant to 35 U.S.C. § 101, patentable subject matter is “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” However, the Supreme Court has held “that this provision contains an important implicit exception[:] Laws of nature, natural phenomena, and abstract ideas are not patentable.” Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013) (quoting Mayo Collaborative Servs. V. Prometheus Labs., Inc., 566 U.S. 66, 70 (2012)). In this case, the Court discusses the abstract idea exception. When determining if a patent claims an abstract idea, the Court first looks to whether the claims are directed to a patent-ineligible concept. Second, the Court looks for an “inventive concept” which transforms the claim into a patent-eligible application.

November 4, 2019

Patent Office Issues 278 Patents To Indiana Citizens in October 2019

By Overhauser Law Offices, LLC

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

The U.S. Patent Office issued the following 278 patent registrations to persons and businesses in Indiana in October 2019, based on applications filed by Indiana patent attorneys:

	Patent No.	Title
1	RE047673	Process for recovering zinc and/or zinc oxide II
2	D0865234	Lamp for the rear of a vehicle
3	D0865161	Medication pump holder
4	D0865131	Faucet handle
5	D0865130	Faucet body

November 1, 2019

208 Trademark Registrations Issued to Indiana Companies in October 2019

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 208 trademark registrations to persons and businesses in Indiana in October 2019 based on applications filed by Indiana trademark attorneys:

Registration No.	Word Mark
5897362	DOUBLE TIME
5897334	TRANSTAPE
5896926	WE SELL THE EARTH AND EVERYTHING ON IT!
5896748	DRY EYE BOOT CAMP

October 31, 2019

Patent Office Updates Eligibility Guidelines for Patentability Under Section 101

By Overhauser Law Offices, LLC

October 17, 2019. The US Patent Office has issued an Update on “Subject Matter Eligibility.” These Guidelines are used by the Patent Office to determine whether patent claims are eligible for protection under 35 USC 101.

Patent claims satisfy § 101’s eligibility requirement unless they are directed to an abstract idea (or other ineligible principle) and fail to add any inventive concept. Alice Corp. Pty. Ltd. v. CLS Bank Intern., 573 U.S. 208 (2014). In particular, claims that recite a specific advance in computer technology—including, for example, an unconventional arrangement of computer components—are eligible.

It is notoriously unclear to understand how should be applied. For example , Judge Plager of the Federal Circuit (and former Dean of the School of Law and Indiana University – Bloomington) has stated that the “body of doctrine” is “incoherent,” “render[ing] it near impossible to know with any certainty whether [an] invention is or is not patent eligible.” Interval Licensing LLC, 896 F.3d at 1348 (Plager, J., concurring and dissenting). Other jurists have noted that the case law is “baffling,” “inconsistent,” and that “needs clarification by higher authority, perhaps by Congress.” Athena Diagnostics, Inc. v. Mayo Collaborative Servs., LLC, 927 F.3d 1333, 1371 (Fed. Cir. 2019); Aatrix Software, Inc. v. Green Shades Software, Inc., 890 F.3d 1354, 1360 (Fed. Cir. 2018)