Indiana Intellectual Property Law News

September 15, 2015

Indiana Copyright Litigation: Former School Employee Sues Schools for Unauthorized Use of Copyrighted Program

South Bend, Indiana – Pro se Plaintiff Angela E. Brooks-Ngwenya, of Fort Wayne, Indiana has filed a copyright complaint in the Northern District of Indiana alleging that The Mind Trust, United Way of Central Indiana, Central Indiana Education Alliance, Phalen Leadership Academies, and Indianapolis Public Schools (“IPS”), all of Indianapolis, Indiana, committed copyright infringement.

Plaintiff contends that she piloted a program, Transitioning Into Responsible Students (“TIRS”) at Gambold Middle School in 2002. She claims that she filed for copyright protection on TIRS in 2006 and that she received a copyright registration in 2008 from the U.S. Copyright Office.

Brooks-Ngwenya claims that her copyrighted material has been infringed by several of Defendants’ programs, including Bridges To Success Education School Model and the Phalen Leadership Academies Education Model.

According to documents filed with the court, prior federal litigation between Brooks-Ngwenya and IPS, which included allegations by Plaintiff of race and gender discrimination, was concluded through a confidential settlement agreement between the parties. Brooks-Ngwenya asserts that these current claims of copyright infringement were excluded from that settlement agreement. Prior litigation between the parties in Marion County court included disability claims made by Brooks-Ngwenya.

Plaintiff drafted a cease and desist order for the court’s review as part of her filing and asked that the court enforce it pending a settlement. She also requested a mediation hearing.

September 11, 2015

Indiana Copyright Litigation: BMI Asserts Copyright Infringement Against Hardy’s Café

By Overhauser Law Offices, LLC

New Albany, Indiana – A copyright attorney for Broadcast Music, Inc. (“BMI”) of New York, New York filed a complaint for copyright infringement in the Southern District of Indiana, New Albany Division against Philkerr, LLC d/b/a Hardy’s Café and Steven Phillips, individually, both of Scottsburg, Indiana.

BMI asserts that it has been granted the right to license the public performance rights of approximately 8.5 million copyrighted musical compositions. In this Indiana copyright litigation, BMI alleges 15 counts of copyright infringement. In addition to Plaintiff BMI, this lawsuit was instituted on behalf of twenty-five other Plaintiffs. These Plaintiffs claim ownership to the copyrighted compositions at issue.

The Defendants in this lawsuit are Philkerr LLC and Steven Phillips, the owner of Philkerr. They are accused of having infringed the copyrights-in-suit by causing the unauthorized public performance of BMI members’ musical works at Hardy’s Café.

Through this lawsuit filed by their copyright lawyer, Plaintiffs ask for an injunction restraining Defendants from publicly performing Plaintiffs’ compositions without authorization from BMI and a judgment for statutory damages, attorney’s fees and the costs of the litigation.

September 9, 2015

Indiana Copyright Litigation: Court Allows Copyright Plaintiff to Add New Defendants

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Acting as his own Indiana copyright lawyer, Larry G. Philpot of Indianapolis, Indiana, filed a motion to amend his complaint in the Southern District of Indiana, Indianapolis Division in his ongoing intellectual property litigation against Mansion America, LLC and Oak Ridge Boys Theater of Branson, Missouri.

This lawsuit, which was filed in August 2014, alleges that Defendants Mansion America, LLC and Oak Ridge Boys Theater infringed the copyright of a photo that Plaintiff Philpot took of Willie Nelson during a 2009 performance in St. Louis, Missouri. A copyright to the photograph, Certificate Number VAu 1-132-411, was issued by the U.S. Copyright Office in 2012.

Mansion America filed a motion to dismiss the copyright litigation. The court granted Philpot leave to conduct limited discovery to assist him in responding to that motion. Plaintiff Philpot now indicates to the court that the discovery provided him with additional information, including the identities of additional parties who had been before been unknown to him. Philpot consequently asked the court for leave to amend his complaint.

The court noted that that, while the time for amending the complaint as a matter of right had elapsed, it was still within the court’s discretion to allow the amendment and that, under the Federal Rules of Civil Procedure, the court should “freely give leave when justice so requires.” Finding that there had been “no undue delay, bad faith, dilatory motive, undue prejudice, or futility of amendment,” and that Philpot had “diligently pursued discovery and prosecuted his case,” the court found that justice required that leave be granted to Philpot to amend his complaint.

September 3, 2015

196 Trademark Registrations Issued to Indiana Companies in August 2015

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 196 trademark registrations to persons and businesses in Indiana in August 2015 based on applications filed by Indiana trademark attorneys:

Registration No.	Word Mark	Click To View
4803991	AUGUSTA	VIEW
4803938	STERI-SPRAY	VIEW
4803791	THE CLEAN BETWEEN	VIEW
4803717		VIEW
4803704	HEALTHY SPRING	VIEW
4805563	LINCOLN WEALTHADVANTAGE	VIEW
4803411	MYIPS	VIEW
4803409	CHOOSEIPS	VIEW
4803311	A	VIEW
4803288	GLOBEHOPPER	VIEW
4803230	BE THE PILOT IN COMMAND!	VIEW
4803171	BUSCH CHIROPRACTIC	VIEW

September 1, 2015

Patent Office Issues 151 Patents To Indiana Citizens in August 2015

By Overhauser Law Offices, LLC

The U.S. Patent Office issued the following 151 patent registrations to persons and businesses in Indiana in August 2015, based on applications filed by Indiana patent attorneys:

	PAT. NO.	Title
1	D737,243	Wall mount DVD/radio
2	D737,215	Electrical connector
3	9,117,015	Management method and system for implementation, execution, data collection, and data analysis of a structured collection procedure which runs on a collection device
4	9,116,247	Stereo detection circuit for detecting neutrons
5	9,116,156	ASC as a marker for chronic obstructive pulmonary disease (COPD)
6	9,116,154	Ion generation using wetted porous material
7	9,116,126	Techniques for removing a contaminant layer from a thermal barrier coating and estimating remaining life of the coating
8	9,115,748	Axial sliding bearing and method of reducing power losses thereof
9	9,115,664	Engine control systems and methods
10	9,115,630	Diagnostic for a mid-catalyst NH3 sensor

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.
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August 31, 2015

Indiana Patent Law: Court Orders TapLogic to Provide Additional Detail Regarding Non-Infringement Contentions

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – Magistrate Judge Susan Collins ordered TapLogic, LLC to serve Agri-Labs with more-detailed preliminary non-infringement contentions (“PNICs”) in the ongoing patent litigation between TapLogic and Agri-Labs Holdings, LLC over TapLogic’s smart phone application “Ag PhD Soil Test.”

At issue in this patent litigation is U.S. Patent No. 8,286,857 (the “`857 Patent” or the “patent-in-Suit”), to which Agri-Labs claims ownership. The patent-in-suit, which was issued based upon an application filed by inventor Tony Wayne Covely, has been registered by the U.S. Patent Office. The `857 Patent generally relates to a system and method for performing soil analysis that uses smart phones, applications for smart phones, soil containers having unique identifiers, and global positioning (“GPS”).

In January, an Indiana patent attorney for Agri-Labs filed an intellectual property complaint in the Northern District of Indiana Fort Wayne Division alleging that TapLogic infringed on the ‘857 Patent. TapLogic counterclaimed. It asked the court for a declaratory judgment that it has not infringed Agri-Labs’ patent and that the claims of the patent are invalid. On July 1, 2015, the parties exchanged their respective contentions regarding infringement.

The instant order addresses Agri-Labs’ request that the court order TapLogic to provide a more detailed PNIC. Agri-Labs asserts that the PNICs it received were deficient, providing “nothing more than vague, conclusory language that simply mimics the language of the claims when identifying its theories of non-infringement.”

As is true for a party serving preliminary infringement contentions (“PICs”), a party serving PNICs must provide an infringement-claim chart for each accused product or process (the “accused instrumentality”). Each claim chart must contain the following contentions: (1) “each claim of each patent in suit that is allegedly infringed by the accused instrumentality;” (2) “[a] specific identification of where each limitation of the claim is found within each accused instrumentality, including . . . the identity of the structures, acts, or materials in the accused instrumentality that performs the claimed function”; and (3) “[w]hether each limitation of each asserted claim is literally present in the accused instrumentality or present under the doctrine of equivalents.”

The court noted that TapLogic’s PNICs merely recite the language of each claim and then deny that its Ag PhD Soil Test performs that function or includes that feature. As an example, one portion of Claim 1 was described as “scanning said unique identifier associated with said soil sample container containing said at least one soil sample with a handheld remote terminal, wherein said handheld remote terminal includes a handheld remote terminal sampling application.” In reply, Agri-Labs stated that its application “does NOT scan said unique identifier associated with said soil sample container containing said at least one soil sample with a handheld remote terminal, wherein said handheld remote terminal includes a handheld remote terminal sampling application.”

Consequently, the court agreed that TapLogic’s PNICs were inadequate because they lacked sufficient detail. It ordered TapLogic to serve Agri-Labs with detailed PNICs.

August 27, 2015

Indiana Trademark Litigation: New Zealand Stroller Company Sued for Use of Navigator Trademark

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana trademark attorneys for Baby Trend, Inc. of California filed an intellectual property lawsuit in the Southern District of Indiana alleging trademark infringement. The company claims that Phil and Teds Most Excellent Buggy Company Limited (“Phil and Teds”), a New Zealand-based enterprise, infringed U.S. Trademark Registration No. 4,514,646, which has been registered by Baby Trend in the U.S. Trademark Office.

Plaintiff Baby Trend is in the business of designing, manufacturing and marketing juvenile products. It claims that it has made extensive use of the mark NAVIGATOR in connection with its strollers and related products for over 15 years.

Baby Trend has sued Defendant Phil & Teds contending that Defendant uses a mark that infringes Baby Trend’s NAVIGATOR trademark in connection with its stroller and stroller-related goods. This use is alleged to have taken place online at Phil & Teds’ online marketplace, www.philandteds.com, as well as on third-party websites that offer Defendant Phil & Teds’ stroller products, such as Toys R Us/Babies R Us and the BuyBuyBaby website. Baby Trend further states that products bearing an infringing NAVIGATOR mark are also sold in brick-and-mortar stores, directly by Phil & Teds and/or through others. According to Baby Trend, offers for the sale of products bearing an infringing mark have taken place in Indianapolis, Indiana.

The complaint states that Baby Trend asked Phil & Teds “at least as early as June 30, 2015” to discontinue use of the NAVIGATOR mark but that Phil & Teds refused. The complaint subsequently contends that Phil & Teds’ conduct was done willfully, intentionally, knowingly, and in reckless disregard of the consequences to Baby Trend.

In this federal intellectual property litigation, Indiana trademark lawyers for Baby Trend make the following claims:

• Count I: Federal Trademark Infringement 15 U.S.C. § 1114
• Count II: Federal Unfair Competition and False Designation of Origin 15 .S.C. [sic] § 1125(a)

• Count III: Common Law Unfair Competition and Trademark Infringement

Baby Trend seeks preliminary and permanent injunctive relief; a declaration that Phil & Teds infringed Baby Trend’s rights in its intellectual property in a deliberate, willful, and/or reckless manner; damages, including treble damages; and costs, litigation expenses and attorneys’ fees.

August 26, 2015

Indiana Patent Litigation: Court Permits Bonutti to Withdraw Counterclaim, Denies Attorneys’ Fees to Biomet

By Overhauser Law Offices, LLC

Hammond, Indiana – In the matter of Biomet, Inc. v. Bonutti Skeletal Innovations, LLC, the Northern District of Indiana, Hammond Division granted Defendant Bonutti’s motion to dismiss with prejudice its counterclaim. Bonutti’s counterclaim alleged that Biomet had infringed U.S. Patent No. 7,806,897 (the “‘897 patent”). Patent attorneys for Biomet Inc. asked the court to impose attorneys’ fees as a condition of the dismissal but this motion was denied.

On March 8, 2013, patent lawyers for Plaintiff Biomet filed an action for declaratory judgment against Bonutti Skeletal Innovations LLC. At issue were contentions of patent infringement of fifteen patents. Bonutti counterclaimed against Biomet and several other counterclaim Defendants. This multi-faceted dispute had been resolved with respect to some of the patents prior to this order. Other allegations of patent infringement remained.

Among the assertions by Bonutti that had remained was a counterclaim that Biomet had infringed the ‘897 patent. In this order, the court granted Bonutti’s request under Rule 41(a)(2) to dismiss this counterclaim with prejudice. The court also addressed Biomet’s contention that it should be awarded attorneys’ fees as a “prevailing party” in this portion of the patent litigation.

The court denied attorneys’ fees to Biomet on several grounds. First, it noted that, while attorney’s fees are available as part of a Rule 41(a)(2) dismissal without prejudice, this is justified as compensation for requiring a defendant to incur unnecessary litigation expenses. That same rationale does not apply where, as in this case, the dismissal is with prejudice.

Additionally, the court noted that any request for attorneys’ fees was premature. Such fees are only available to the “prevailing party” and Biomet had not established itself as such a prevailing party. Biomet may yet be able to recover attorneys’ fees if, at the conclusion of the patent lawsuit, Biomet is held to be the prevailing party.

August 24, 2015

Introduction to Criminal Copyright Infringement – Fourth Element: Commercial Advantage or Private Financial Gain

By Overhauser Law Offices, LLC

The fourth element of a criminal prosecution for copyright infringement requires that the

government prove that the defendant engaged in an act of copyright infringement “for purposes of commercial advantage or private financial gain.” It is unnecessary that a profit be made as a result of the infringing activities. This interpretation was intended to exclude from criminal liability those individuals who willfully infringe copyrights solely for their own personal use, although those individuals may still be pursued by the copyright holder in civil court.

It is a common misconception that if infringers do not charge subscribers a monetary fee for infringing copies, they cannot be found guilty of criminal copyright infringement. While evidence of discrete monetary transactions (i.e., the selling of infringing goods for a particular price) provides the clearest evidence of financial gain, such direct evidence is not a prerequisite for the government to prosecute.

August 17, 2015

Introduction to Criminal Copyright Infringement – Third Element: Willfulness

By Overhauser Law Offices, LLC

The third element of a criminal prosecution for copyright infringement requires that the

government establish that the defendant possessed criminal intent to infringe the holder’s copyrighted work. Courts generally agree that a “willful” act must be “an act intentionally done in violation of the law.”

However, in defining willfulness when it comes to copyright infringement, courts differ in their interpretations of which of the two acts – copying or infringing – requires willful intent. The minority view, endorsed by the Second and Ninth Circuits, holds that “willful” means only intent to copy, not intent to infringe. The majority view, however, looks for intent to infringe rather than merely intent to copy, thus, requiring the government to demonstrate a voluntary, intentional violation of a known legal duty.