Indiana Intellectual Property Law News

November 12, 2015

Indiana Patent Litigation: USITC Begins Investigation at Request of Indianapolis-Based Plaintiff

hdl-test-strips2-new[1].jpg

Washington, D.C. – The U.S. International Trade Commission (“USITC”) began an investigation under section 337 of the Tariff Act of 1930 regarding the importation and sale of blood cholesterol test strips that allegedly infringe a U.S. patent. The respondents are Jant Pharmacal Corp. of Encino, California; Infopia America LLC of Titusville, Florida and Infopia Co., Ltd. of the Republic of Korea.

In August 2014, Indiana patent attorneys for Plaintiff Polymer Technology Systems (“PTS”) of Indianapolis, Indiana sued respondents in the Southern District of Indiana alleging infringement of U.S. Patent No. 7,087,397, “Method for determining HDL concentration from whole blood or plasma,” which was granted by the United States Patent and Trademark Office. In the lawsuit filed in Indiana federal court, PTS also asserted that Defendants had violated the Lanham Act.

In October 2015, PTS filed a complaint with the USITC involving its point-of-care blood cholesterol testing meters, test strips, and systems containing the same naming the same three parties. PTS asks that the USITC issue an exclusion order and a cease and desist order.

No decision has yet been made on the merits of the USITC action. The matter will be assigned to an administrative law judge (“ALJ”), who will hold an evidentiary hearing. The ALJ will make an initial determination regarding whether there is a violation of section 337. That decision, in turn, is subject to review by the USITC, which then makes a final determination.

November 10, 2015

Indiana Trademark Litigation: Shipshewana Spice Company Sues Amish Farms for Use of “Happy Salt” Trademark

By Overhauser Law Offices, LLC

Shipshewana, Indiana – Indiana trademark lawyers for Plaintiff Kevin Horn, sole proprietor of Shipshewana Spice Company of Warsaw, Indiana, filed an intellectual property lawsuit in the Northern District of Indiana alleging that Bob Wilson d/b/a Amish Farms and Shipshewana’s Best Spice Co. of Millersburg, Indiana infringed the trademark “HAPPY SALT,” Trademark Registration No. 4,241,663, which was granted by the United States Patent and Trademark Office. Horn also alleges trademark counterfeiting, false description, trademark dilution and unfair competition.

Plaintiff Horn of Shipshewana Spice states in his intellectual property complaint that his company has been selling spices and other seasonings since 1994 both locally in north-central Indiana and online at www.shipshewanaspicecompany.com. Plaintiff further claims that the trade name “HAPPY SALT” has been associated with his spices since 1994. A trademark registration for this mark in International Class 30 for “Seasonings, namely, Seasonings in salt” was granted by the USPTO on November 13, 2012.

Defendant Wilson, alleged to be the operator of the website www.amishfarms.com, is accused of offering counterfeit goods offered as “HAPPY SALT SEASONING,” “HAPPY HEARTS SALT FREE SEASONING” and “HAPPY SEA SALT SEASONING.” Plaintiff also protests the use by Defendant of the business name “Shipshewana’s Best Spice Company,” which it contends is nearly identical to Plaintiff’s business name, “Shipshewana Spice Company”.

The complaint, filed by Indiana trademark attorneys for Plaintiff, includes the following counts:

• First Claim: Trademark Infringement Under Lanham Act §32; 15 U.S.C. §1114
• Second Claim: Trademark Counterfeiting Under Lanham Act §32; 15 U.S.C. §1114
• Third Claim: False Description Under Lanham Act §43; 15 U.S.C. §1125
• Fourth Claim: Trademark Dilution Under Lanham Act §43; 15 U.S.C. §1125

• Fifth Claim: Unfair Competition Under Lanham Act §43; 15 U.S.C. §1125

Horn seeks equitable relief along with damages, costs and attorneys’ fees.

November 9, 2015

EFF at Congressional Roundtable: Do U.S. Copyright Laws Work in the Digital Age?

By Overhauser Law Offices, LLC

Santa Clara, California – EFF to participate in today’s U.S. House Judiciary Committee discussion on copyright law in the digital age.

Today at 2 p.m., Electronic Frontier Foundation (“EFF”) Staff Attorney Kit Walsh will participate in a roundtable discussion about U.S. copyright laws convened by the House Judiciary Committee, which is undertaking the first comprehensive review of the nation’s copyright laws since the 1960s.

EFF argues that copyright was intended to promote creativity, but the law has not developed to support the explosion of creativity enabled by new technologies. Too often, it says, copyright is instead being abused to shut down innovation, creative expression, and even everyday activities like tinkering with your car.

November 6, 2015

Indiana E-Filing Extended to Indiana Supreme Court and Court of Appeals

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Chief Justice Loretta Rush of the Indiana Supreme Court today signed an order extending e-filing.

In July, the Indiana E-filing System (“IEFS”) commenced in Indiana’s state courts with a pilot program in Hamilton County. That program extends to filings with the Indiana Supreme Court and Court of Appeals effective Monday, November 9, 2015.

E-filing via IEFS will be required for all filings for appeals “in which: (a) either the Indiana Public Defender or the Marion County Public Defender, on one side, and the Attorney General of Indiana, on the other side, represent the parties to the appeal; and (b) the Notice of Appeal has already been conventionally filed.”

Other appeals for which a Notice of Appeal have been conventionally filed may submit filings through the IEFS but are not yet required to do so. The court’s plan is to require electronic filing in all Indiana state courts by the end of 2018.

November 5, 2015

Copyright Law: Copyright Office Publishes DMCA Exemption Rule

By Overhauser Law Offices, LLC

The U.S. Copyright Office, a part of the Library of Congress, issued a final rule adopting exemptions to the provision of the Digital Millennium Copyright Act (“DMCA”) that prohibits circumvention of technological measures that control access to copyrighted works.

The DMCA was enacted in 1998 to implement various elements of copyright-related World Intellectual Property Organization treaties. Included in the DMCA was a prohibition against circumventing technological measures employed by or on behalf of copyright owners to protect access to their works. The DMCA also provided for exemptions to this prohibition, which are issued by the Librarian of Congress following a rulemaking proceeding. In the course of this proceeding, the Librarian determines which “noninfringing uses by persons who are users of a copyrighted work are, or are likely to be, adversely affected by the prohibition against circumvention in the succeeding three-year period” and, through the final rule, exempts that class from the prohibition for that three-year period.

Under the DMCA, this final rule must consider “(i) the availability for use of copyrighted works; (ii) the availability for use of works for nonprofit archival, preservation, and educational purposes; (iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; (iv) the effect of circumvention of technological measures on the market for or value of copyrighted works; and (v) such other factors as the Librarian considers appropriate.”

November 4, 2015

176 Trademark Registrations Issued to Indiana Companies in October 2015

By Overhauser Law Offices, LLC

The U.S.
Trademark Office issued the following
176 trademark registrations to persons and businesses in Indiana in October 2015 based on applications filed by Indiana trademark attorneys:

Registration No.	Word Mark	Click To View

4830409	FULLBEAUTY BRANDS	LIVE
4842231	TRULY FLAWLESS	LIVE
4841223	YUNG MOGUL	LIVE
4841080	CPA LIFE	LIVE
4841040	ORTHOPEDIATRICS	LIVE
4840968	ECOSILVER	LIVE
4840421	FRESH START DENTURES	LIVE
4840418	PATIENT FRIENDLY PROMISE	LIVE
4840328	CORK MEDICAL	LIVE
4840310	3X	LIVE
4842921	BOWDAGGER	LIVE
4840081	SCAR TISSUE TREATMENT CENTERS OF AMERICA	LIVE

November 3, 2015

Patent Office Issues 186 Patents To Indiana Citizens in October 2015

By Overhauser Law Offices, LLC

The U.S. Patent Office issued the following 186 patent registrations to persons and businesses in Indiana in October 2015, based on applications filed by Indiana patent attorneys:

PAT. NO.		Title
1	D741,984	Faucet handle
2	D741,940	Camera mount
3	D741,694	Robe hook
4	D741,682	Pull me up
5	9173041	Enhancing perception of frequency-lowered speech
6	9170912	System and methods for power and energy modeling in computing devices using system call tracing
7	9170583	Firefighting monitor and control system therefor
8	9170579	System, method and computer program product for monitoring and controlling industrial energy equipment
9	9170231	Quantification and characterization of allergens
10	9170065	Pocket hunting system
11	9170057	Evacuated tubes for solar thermal energy collection
12	9169921	Double transition shift control in an automatic powershifting transmission
13	9169784	Processing system and method for calculating pressure decreases due to injection events in a high-pressure fuel system
14	9169669	Lock status indicator

October 30, 2015

U.S. Supreme Court to Hear Patent Infringement Litigation Involving Indiana-Based Zimmer

By Overhauser Law Offices, LLC

Washington, D.C. -The United States Supreme Court has agreed to hear appeals in two separate lawsuits, Halo Electronics, Inc. v. Pulse Electronics, Inc., et al., Case No. 14-1513, and Stryker Corp, et al. v. Zimmer, Inc., et al., Case No. 14-1520, on the issue of willfulness as a prerequisite for awarding enhanced damages in patent infringement litigation. The two cases were consolidated.

Under 35 U.S.C. § 284 of the Patent Act, a district court “may increase … damages up to three times the amount found or assessed.” Despite this language, which on its surface is permissive and discretionary, the Federal Circuit imposes a stricter test. For a district court to award enhanced damages under § 284, this test requires that a patentee prove by clear and convincing evidence that infringement was “willful.” A determination of willfulness requires a finding of both (1) an objectively high likelihood that the infringer’s actions constituted infringement, and (2) that this likelihood was either known or so obvious that it should have been known to the accused infringer.

The questions presented to the Supreme Court are:

1. Has the Federal Circuit improperly abrogated the plain meaning of 35 U.S.C. § 284 by forbidding any award of enhanced damages unless there is a finding of willfulness under a rigid, two-part test, when this Court recently rejected an analogous framework imposed on 35 U.S.C. § 285, the statute providing for attorneys’ fee awards in exceptional cases?

2. Does a district court have discretion under 35 U.S.C. § 284 to award enhanced damages where an infringer intentionally copied a direct competitor’s patented invention, knew the invention was covered by multiple patents, and made no attempt to avoid infringing the patents on that invention?

The Court granted motions by Independent Inventor Groups and Nokia Technologies OY, et al. to file briefs as amici curiae.

Practice Tip: In December 2014, the Federal Circuit overturned the decision of the Western District of Michigan to triple the damages awarded to Stryker, reducing the amount from $228 million to $70 million.

October 29, 2015

Seventh Circuit News: Judge Tinder Retires from Federal Bench

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Earlier this month, Judge John Tinder officially retired from the United States Court of Appeals for the Seventh Circuit, stepping down after more than 30 years of federal service.

Judge Tinder, a jurist who once described himself as a person with “too many hobbies” but “not enough time,” officially retired from the bench in early October. The announcement of his retirement inadvertently came not through the usual channels, but rather via a letter that he wrote in response to an unsolicited application that he received from someone seeking employment as a law clerk. In his reply, Judge Tinder wrote, “Thank you for applying for a clerkship with me. Your credentials are outstanding. However, I recently decided that I will be leaving the court in 2015 so I will not be hiring any additional clerks….” That letter was leaked to AboveTheLaw.com, which broke the news of Judge Tinder’s impending retirement.

A lifelong resident of Indiana, Judge Tinder received both his undergraduate degree and law degree from the Indiana University – Bloomington. Prior to his appointment to a federal judgeship, he served as an Assistant United States Attorney for the Southern District of Indiana and, later, as the United States Attorney for the Southern District. In addition, he had engaged in the private practice of law in Indianapolis, had served as the Chief Trial Deputy for the Marion County Prosecutor’s Office and had been a public defender for the Criminal Division of the Superior Court of Marion County. Judge Tinder also taught as an adjunct professor at the Indiana University School of Law.

October 27, 2015

Indiana Intellectual Property Litigation: Roche Seeks Declaration of Non-Infringement of Meso’s Rights to ECL Technology

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana intellectual property attorneys for Plaintiff Roche Diagnostics Corporation of Indianapolis, Indiana filed a lawsuit in the Southern District of Indiana asking for a declaration of non-infringement of rights to patented technology licensed to Defendant Meso Scale Diagnostics, LLC of Rockville, Maryland.

At issue in this patent-related lawsuit is the right to use patented Electrochemiluminescence (“ECL”) technology owned by BioVeris Corporation. ECL is a detection technology that uses electricity, chemistry and light to detect and measure the presence of specific molecules in a test sample. It is used to detect, monitor, and guide the treatment of disease and other conditions.

In 1995, BioVeris licensed its ECL technology to Defendant Meso. Under this license, Meso was granted an exclusive license to use ECL technology for certain limited purposes. BioVeris later entered licensing agreements granting Roche Diagnostics use of ECL technology. Meso contends that Roche Diagnostics’ use of BioVeris’ ECL technology constitutes a violation of the exclusive rights granted to Meso. Roche Diagnostics asserts that its use does not violate Meso’s rights under the Meso license and that, while Meso was not a party to the first agreement licensing the ECL technology to Roche Diagnostics, executed in 2003, Meso expressly consented to that entire agreement. A second agreement licensing the technology was executed between BioVeris and Roche Diagnostics in 2007.

In 2013, a related dispute between Miso and Roche Diagnostics in Delaware state court was resolved in favor of Roche Diagnostics after a five-day bench trial. That judgment was affirmed by the Delaware Supreme Court in June 2015. Roche Diagnostics claims that, this concluded lawsuit notwithstanding, Meso continues to assert that Roche Diagnostics’ activities infringe Meso’s rights and continues to threaten litigation.

Indiana patent lawyers for Roche Diagnostics filed this action for declaratory judgment seeking a judgment declaring that it has not infringed Meso’s license rights in the ECL technology. Roche also seeks an award of attorney’s fees and costs.

Practice Tip: Because the validity of the BioVeris’ patents is not in dispute, and because Roche Diagnostics concedes that some of its products include BioVeris’ patented ECL technology, BioVeris was not included as a party in this lawsuit.