Indiana Intellectual Property Law News

April 7, 2017

Indiana Patent Litigation: Infringement of Patents for Rotating Curling Iron Alleged in New Lawsuit

South Bend, Indiana – The Beachwaver Co. of Libertyville, Illinois filed a new lawsuit in the Northern District of Indiana alleging infringement of patents covering its rotating curling iron. Beachwaver seeks damages as well as injunctive and other relief under 35 U.S.C. 281, et seq.

Defendants in this newest lawsuit are Xtava, LLC of Wilmington, Delaware, C&A IP Holdings, LLC of Dover, Delaware, and C+A Global of Edison, New Jersey. They are accused of infringing two patents: U.S. Patent Nos. 9,398,796 (“the ‘796 patent”) and 9,504,301 (“the ‘301 patent”). These patents, both titled “Hair Styling Device,” have been issued by the U.S. Patent and Trademark Office.

Plaintiff has filed two similar Indiana lawsuits asserting infringement in recent months, one in October and another in December. This most recent litigation, filed by Indiana patent lawyers for Beachwaver, lists two counts:

Count 1: Infringement of the ‘796 Patent
Count 2: Direct Infringement of the ‘301 Patent

Plaintiff seeks injunctive relief, costs, attorneys’ fees and damages, including treble damages.

April 6, 2017

213 Trademark Registrations Issued to Indiana Companies in March 2017

By Overhauser Law Offices, LLC

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.

Registration No.	Word Mark	Click To View
5171659	STUPID SEXY FLANDERS	TSDR
5171658	CHERRY BUSEY	TSDR
5173350	SPECIALIZING IN COUNTY SEAT COMMUNITIES	TSDR
5171378	BLUE	TSDR
5171323	E-ZSERT	TSDR
5171243	DEWCARTA	TSDR

April 5, 2017

Patent Office Issues 179 Patents To Indiana Citizens in March 2017

By Overhauser Law Offices, LLC

The U.S. Patent Office issued the following 179 patent registrations to persons and businesses in Indiana in March 2017, based on applications filed by Indiana patent attorneys:

	Patent No.	Title
1	D782,748	Combined swing door and door frame of an animal enclosure
2	D782,376	Rear spoiler for a vehicle
3	D782,276	T-latch handle assembly
4	9,608,299	Battery and battery-sensing apparatuses and methods
5	9,607,306	Ambient sampling mass spectrometry and chemometric analysis for screening encapsulated electronic and electrical components for counterfeits
6	9,606,140	Acceleration sensitive indicator
7	9,606,136	Device and method for transferring reaction vessels

April 3, 2017

Indiana Patent Litigation: Lilly Alleges Patent Infringement, Sues Generic Manufacturer

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Eli Lilly and Company of Indianapolis, Indiana filed a patent infringement lawsuit in the Southern District of Indiana asserting infringement of U.S. Patent No. 7,772,209 (‘209 Patent). Defendant is Amneal Pharmaceuticals LLC of Bridgewater, New Jersey.

Lilly states that Amneal filed an Abbreviated New Drug Application with the U.S. Food and Drug Administration seeking approval to manufacture and sell two “Pemetrexed for Injection” products prior to the expiration of the ‘209 patent. Lilly contends that the ‘209 patent, which was issued by the U.S. Patent and Trademark Office, protects the Pemetrexed products.

In this patent litigation, filed by attorneys for Lilly, a single count is listed, “Infringement of U.S. Patent No. 7,772,209.” Lilly seeks relief from the Indiana court including a judgment of infringement, injunctive relief, costs and attorneys’ fees.

Practice Tip: Lilly has had some success protecting its ‘209 patent, which relates to the cancer drug Alimta®, against generic manufacturers. See, e.g., U.S. Court of Appeals Rules In Lilly’s Favor on Alimta Vitamin Regimen Patent.

March 31, 2017

Indiana Patent Litigation: Indiana Plaintiff Seeks Judgment of Noninfringement

By Overhauser Law Offices, LLC

South Bend, Indiana – Stump Printing Co., Inc., also known as Shindigz, of South Whitley, Indiana filed a patent lawsuit in the Northern District of Indiana seeking declaratory judgment of noninfringement.

Defendant in the litigation is Electronic Communication Technologies, LLC (“ECT”) of Boynton Beach, Florida, which claims to be the owner by assignment of U.S. Patent Nos. 9,373,261; 7,876,239 and 7,319,414. These patents were issued by the U.S. Patent and Trademark Office.

In February 2017, ECT sent a letter to Shindigz claiming that Shindigz’s “order confirmation” and “shipping confirmation” systems “infringe claims of the ECT Patents.” The letter demanded that Shindigz pay a fee of $30,000 to license the use of those systems.

In response, Indiana patent lawyers for plaintiff filed this lawsuit asking the court to find the ECT patents ineligible for patenting, not infringed, and invalid. The complaint accuses ECT of being a “patent troll,” stating that the company makes a practice of “calibrating the amount of [its] settlement demands to be lower than the perceived cost of litigation, to try to ensure that practicing entities settle rather than pursue challenges to the eligibility of validity of the patents through dispositive motions or trial.” The complaint also asserts that ECT and predecessor in interest Eclipse IP have filed approximately 250 patent lawsuits since 2011.

The lawsuit seeks injunctive relief, costs and attorneys’ fees as well as two counts of declaratory judgment:

Count I: Declaratory Judgment of Noninfringement

Count II: Declaratory Judgment of Invalidity

March 30, 2017

EFF Addresses Digital Rights Issues on the Horizon at the Supreme Court

By Overhauser Law Offices, LLC

The U.S. Supreme Court already has a list of digital civil liberties issues to consider in the near future; that list is likely to grow.

If confirmed, President Donald Trump’s nominee to fill the late Justice Antonin Scalia’s seat on the Supreme Court—Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit—will be in a position to make crucial decisions protecting innovation and fair use. The Electronic Frontier Foundation has weighed in on several such issues that are, or may be, before the Court.

The Supreme Court has agreed to hear arguments in TC Heartland v. Kraft, a case centering on whether TC Heartland can have the infringement case against it considered in the company’s home state of Indiana instead of Delaware. EFF has supported TC Heartland, and a ruling in favor of reasonable venue limits could help tamp down on abusive patent lawsuits, which are often brought in the Eastern District of Texas despite any actual ties to that location because that court is perceived as being friendly to abusive suits.

March 29, 2017

Indiana Copyright Litigation: Seventh Circuit Asked to Address Discovery Rule in Context of Copyright Infringement

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – The Northern District of Indiana granted a motion for interlocutory appeal to the Seventh Circuit.

This Indiana copyright lawsuit involves Plaintiff Design Basics, LLC of Omaha, Nebraska, a company which “creates, markets, publishes and licenses the use of architectural works and technical drawings.” Defendant is Lancia Homes, Inc., a Fort Wayne company that builds homes.

During the course of litigation, Plaintiff stated that in 2013 it discovered that Defendant had infringed various copyrighted architectural works. A search of a website archive further revealed that “Defendant had actually been advertising infringing versions of the Plaintiff’s homes since May 18, 2006.”

In February 2016, Design Basics sued Lancia Homes alleging infringement of copyrighted architectural designs. It also named several entities under which Lancia also does business, including Lancia Construction, Springmill Development, Lancia Real Estate, Lancia Homes, Springmill Wood Development, and Waterford Enterprises,

Copyright litigators for Design Basics argued that its claims were not time barred under the Copyright Act, which states that “[n]o civil action shall be maintained under [its] provisions . . . unless it is commenced within three years after the claim accrued.” It argued that the traditional discovery rule, which provides that a claim accrues when the injured party discovers or should have discovered the allegedly infringing act, should be applied. Citing dicta in the Supreme Court’s decision in Petrella v. Metro-Goldwyn-Mayer, Inc., Defendant Lancia Homes argued that a claim for copyright infringement accrues at the time of the infringing act.

The district court agreed with Design Basics and applied the traditional discovery rule. Lancia Homes requested that the court certify the question for interlocutory appeal.

Under 28 U.S.C. § 1292(b), a trial court may certify an order for appeal if it “involves a controlling question of law, as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate determination of the litigation.” The court found that these conditions had been met and granted Plaintiff’s motion to certify the issue for interlocutory appeal.

Practice Tip: Design Basics argued against an interlocutory appeal. In granting Lancia Homes’ request for interlocutory appeal, the court noted that Design Basics has 24 similar lawsuits pending in the Northern District of Indiana, stating that it “would be more efficient for the Court of Appeals to consider and decide what, if any, impact Petrella has on the statute of limitations for infringement claims within this Circuit before many of the Plaintiff’s cases within this District are to proceed to trial.”

March 27, 2017

Indiana Patent Litigation: Parties Return to Court Over Allegations of Ongoing Infringement of Patent for Foldable Tricycle

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Newton Enterprises Ltd. of Kowloon, Hong Kong filed a lawsuit in the Southern District of Indiana against Defendant Singleton Trading Inc. d/b/a Elama d/b/a Blue Spotlight of Brooklyn, New York asserting patent infringement and breach of contract.

These claims follow earlier litigation against Singleton initiated by Newton in June 2016. That lawsuit, also filed in Indiana, alleged that Singleton Trading had infringed and/or induced others to infringe U.S. Patent No. 7,568,720 (the “‘720 patent”) for a “Wheeled Vehicle” with its “Zoom Bike” product.

Newton states that the 2016 action was dismissed without prejudice pursuant to a settlement agreement under which Singleton agreed to compensate Newton for its claims of past infringement and “permanently cease making, using, offering to sell, or selling the Zoom Bike” or any other product that infringed the ‘720 patent. Under the agreement, Singleton was granted a limited license to sell its remaining inventory.

Newton now returns to the court alleging that Singleton has breached the settlement agreement by selling units of the Zoom Bike exceeding the scope of the limited license. Newton further contends that this conduct constitutes willful infringement of the ‘720 patent.

This second complaint, filed by an Indiana patent lawyer, lists two counts:

Count I: Infringement of ‘720 Patent
Count II: Breach of Settlement Agreement

Newton asks the court for a declaration of willful patent infringement; damages, including a trebling of those damages; costs and attorneys’ fees; and injunctive relief.

March 24, 2017

Indiana Trademark Litigation: Bosch Accuses Indiana Man of Counterfeiting

By Overhauser Law Offices, LLC

Hammond, Indiana – Robert Bosch, GmbH of Stuttgart, Germany and Robert Bosch, LLC of Broadview, Illinois sued in the Northern District of Indiana alleging trademark counterfeiting, trademark infringement, false advertising and unfair competition.

At issue in this Indiana lawsuit are the following trademarks, which have been registered with the U.S. Patent and Trademark Office:

MARK

REG. NO

REG. DATE

BOSCH

1,637,401

Mar. 12, 1991

633,563

Aug. 28, 1956

Defendants in the litigation are Joshua Rayner of Portage, Indiana as well as ten unnamed “Doe” Defendants. They are accused of “advertising, offering for sale and sale of counterfeit automotive parts” that bear unauthorized copies of Bosch trademarks.
Indiana trademark attorneys for Plaintiffs list the following claims in this federal lawsuit:

Count I: Trademark Counterfeiting in Violation of Sections 32 and 34(d)(1)(B) of the Lanham Act
Count II: Trademark Infringement in Violation of Section 32 of the Lanham Act
Count III: Unfair Competition in Violation of Section 43(a) of the Lanham Act
Count IV: False Advertising in Violation of Section 43(a) of the Lanham Act

Plaintiffs seek injunctive and monetary relief, including statutory damages, treble damages and attorneys’ fees.

March 23, 2017

Copyright Law: Registering a Work with the Copyright Office, Part II

By Overhauser Law Offices, LLC

Who Can Register a Work with the U.S. Copyright Office?

Can foreigners register their works in the United States?

Any work that is protected by U.S. copyright law can be registered. This includes many works of foreign origin. All works that are unpublished, regardless of the nationality of the author, are protected in the United States. Works that are first published in the United States or in a country with which we have a copyright treaty or that are created by a citizen or domiciliary of a country with which we have a copyright treaty are also protected and may therefore be registered with the U.S. Copyright Office. See Circular 38a, International Copyright Relations of the United States, for the status of specific countries, and Circular 38b, Copyright Restoration Under the URAA