The U.S. Patent Office issued the following 194 patent registrations to persons and businesses in Indiana in June 2015, based on applications filed by Indiana patent attorneys:
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Patent Office Issues 194 Patents To Indiana Citizens in June 2015
Indiana Patent Litigation: Lilly and Lupin in Federal Court Anew, Patent Infringement of Axiron Now Alleged
Indianapolis, Indiana – In conjunction with non-Indiana co-counsel, an Indiana patent attorney for Eli Lilly and Company, Eli Lilly Export S.A. (collectively, “Lilly”) and Acrux DDS Pty Ltd., sued in the Southern District of Indiana alleging that Lupin Ltd. of Mubai, India and Lupin Pharmaceuticals, Inc. of Baltimore, Maryland infringed on various of Plaintiffs’ patents, including U.S. Patent Nos. 8,419,307; 8,177,449; 8,435,944; 8,807,861; and 8,993,520. These patents have been issued by the U.S. Patent Office.
Lilly is engaged in the business of research, development, manufacture and sale of
pharmaceutical products worldwide. Acrux is engaged in the development and commercialization of pharmaceutical products. They sell their products worldwide. The Lupin Defendants are generic pharmaceutical companies that develop, manufacture, market, and distribute generic pharmaceutical products for sale.
At issue in this patent litigation are U.S. Patent Nos. 8,419,307; 8,177,449; 8,435,944; 8,807,861; and 8,993,520. These patents are alleged to cover a testosterone metered transdermal solution used to treat males for conditions associated with a deficiency or absence of endogenous testosterone. This pharmaceutical product, trademarked as Axiron®, is marketed and sold by Lilly.
Plaintiffs contend that the Abbreviated New Drug Application No. 208061 submitted in the name of Lupin Ltd. to the U.S. Food and Drug Administration for approval to market a generic version of Lilly’s Axiron product constitutes patent infringement.
In its complaint, filed by an Indiana patent lawyer, Lilly alleges the following counts:
• Count I for Patent Infringement: Direct Infringement of U.S. Patent No. 8,419,307
• Count II for Patent Infringement: Inducement To Infringe U.S. Patent No. 8,419,307
• Count III for Patent Infringement: Contributory Infringement of U.S. Patent No. 8,419,307
• Count IV for Patent Infringement: Direct Infringement of U.S. Patent No. 8,177,449
• Count V for Patent Infringement: Inducement To Infringe U.S. Patent No. 8,177,449
• Count VI for Patent Infringement: Contributory Infringement of U.S. Patent No. 8,177,449
• Count VII for Patent Infringement: Direct Infringement of U.S. Patent No. 8,435,944
• Count VIII for Patent Infringement: Inducement To Infringe U.S. Patent No. 8,435,944
• Count IX for Patent Infringement: Contributory Infringement of U.S. Patent No. 8,435,944
• Count X for Patent Infringement: Direct Infringement of U.S. Patent No. 8,807,861
• Count XI for Patent Infringement: Inducement To Infringe U.S. Patent No. 8,807,861
• Count XII for Patent Infringement: Contributory Infringement of U.S. Patent No. 8,807,861
• Count XIII for Patent Infringement: Direct Infringement of U.S. Patent No. 8,993,520
• Count XIV for Patent Infringement: Inducement To Infringe U.S. Patent No. 8,993,520
• Count XV for Patent Infringement: Contributory Infringement of U.S. Patent No. 8,993,520
• Count XVI for Declaratory Judgment: Infringement of U.S. Patent No. 8,419,307
• Count XVII for Declaratory Judgment: Infringement of U.S. Patent No. 8,177,449
• Count XVIII for Declaratory Judgment: Infringement of U.S. Patent No. 8,435,944
• Count XIX for Declaratory Judgment: Infringement of U.S. Patent No. 8,807,861
• Count XX for Declaratory Judgment: Infringement of U.S. Patent No. 8,993,520
Plaintiffs ask the court for judgment in their favor as follows:
a) United States Patent Nos. 8,419,307; 8,177,449; 8,435,944; 8,807,861; and 8,993,520 are valid and enforceable;
b) Under 35 U.S.C. § 271(e)(2)(A), Defendants infringed United States Patent Nos. 8,419,307; 8,177,449; 8,435,944; 8,807,861; and 8,993,520 by submitting ANDA No. 208061 to the FDA to obtain approval to commercially manufacture, use, offer for sale, sell, or import into the United States Lupin’s Generic Product prior to expiration of said patents;
c) Defendants’ threatened acts of commercial manufacture, use, offer for sale, or sale in, or importation into, the United States of Lupin’s Generic Product prior to the expiration of United States Patent Nos. 8,419,307; 8,177,449; 8,435,944; 8,807,861; and 8,993,520 would constitute infringement of said patents;
d) The effective date of any FDA approval of Lupin’s Generic Product shall be no earlier than the latest of the expiration date of United States Patent Nos. 8,419,307; 8,177,449; 8,435,944; 8,807,861; and 8,993,520 and any additional periods of exclusivity, in accordance with 35 U.S.C. § 271(e)(4)(A)
e) Defendants, and all persons acting in concert with Defendants, shall be enjoined from commercially manufacturing, using, offering for sale, or selling Lupin’s Generic Product within the United States, or importing Lupin’s Generic Product into the United States, until the expiration of United States Patent Nos. 8,419,307; 8,177,449; 8,435,944; 8,807,861; and 8,993,520 in accordance with 35 U.S.C. §§ 271(e)(4)(B) and 283;) This is an exceptional case and Plaintiffs should be awarded their costs, expenses, and disbursements in this action, including reasonable attorney fees, pursuant to 35 U.S.C. §§ 285 and 271(e)(4); and
g) Plaintiffs are entitled to any further appropriate relief under 35 U.S.C.§ 271(e)(4).
The case was assigned to Judge Sarah Evans Barker and Magistrate Judge Debra McVicker Lynch in the Southern District of Indiana and assigned Case No. 1:15-cv-01047-SEB-DML.
Practice Tip: Information on Lilly’s lawsuit against the Lupin Defendants, which asserts patent infringement relating to the drug Effient, can be found here.
Indiana Copyright Litigation: Bell Rings in the Holiday Weekend with a New Copyright Lawsuit
Indianapolis, Indiana – Indiana copyright lawyer and professional photographer Richard Bell of McCordsville, Indiana filed a federal intellectual property lawsuit in the Southern District of Indiana. He alleges copyright infringement by Randolph Ventures, LLC of Peoria, Illinois. At issue is a copyrighted photo of the Indianapolis skyline taken by Bell that has been registered by the U.S. Copyright Office.
In 2000, Plaintiff Bell photographed the downtown Indianapolis skyline. Bell indicates in this Indiana complaint that the photo has been registered by the U.S. Copyright Office as Registration Number VA0001785115.
In this Indiana lawsuit for copyright infringement, Bell asserts that Defendant Randolph Ventures used Bell’s copyrighted image without permission when it displayed the photo to advertise its business on the Internet at http://webdesign309.com/indianapolis/. Bell claims that the limited liability company that he sued “willfully and recklessly falsely claimed that he owned the copyrights of all images and photos” contained on that website, including Bell’s photo of Indianapolis. Bell asserts that Defendant has thus profited from the use of the copyrighted photo.
In this single-defendant lawsuit, Bell contends that “as a direct and proximate result of their wrongful conduct, Defendants have [sic] realized and continue to realize profits and other benefits rightfully belonging to Plaintiff.” The acts in question are alleged to have been committed willfully and deliberately and with oppression, fraud, and malice.
In this federal complaint, which copyright attorney Bell filed on his own behalf, counts of copyright infringement and unfair competition are asserted. Bell asks for an accounting of all gains, profits and advantages derived by Defendant Randolph Ventures as a result of the alleged infringement and for statutory and/or actual damages. He also seeks reimbursement of costs and reasonable attorneys’ fees.
Practice Tip: Richard Bell has sued hundreds of defendants for copyright infringement in the Indiana federal courts. Previous blog posts regarding his litigation include:
• Bell Files New Copyright Infringement Lawsuit
• Bell Sues Georgia-Base FindTicketsFast.com for Copyright Infringement
• Richard Bell Files Two New Copyright Infringement Lawsuits
• Court Prevents Copyright Plaintiff Bell from Outmaneuvering Legal System; Orders Bell to Pay Almost $34,000 in Fees and Costs
• Three Default Judgments of $2,500 Ordered for Copyright Infringement
• Court Orders Severance of Misjoined Copyright Infringement Complaint
156 Trademark Registrations Issued to Indiana Companies in June 2015
The U.S. Trademark Office issued the following 156 trademark registrations to persons and businesses in Indiana in June 2015 based on applications filed by Indiana trademark attorneys:
| Registration No. | Word Mark | Click To View |
| 4762035 | EASY, DO-IT-YOURSELF SIGNS, FREE, SIGNCREATOR DEFLECTO.COM/SIGNCREATOR, ONLINE, CUSTOMIZABLE TEMPLATES |
VIEW |
| 4760442 | PREPARED TO BE A PIONEER | VIEW |
| 4760361 | M.E.T.A.: MAPPING EDUCATION TOWARDS ACHIEVEMENT | VIEW |
| 4760354 | OPOCOFI BREWING | VIEW |
| 4760110 | MS | VIEW |
| 4760087 | F.A.D.E: | VIEW |
| 4760077 | WHERE BEAUTIFUL THINGS BEGIN | VIEW |
| 4759863 | 3 FLOYDS | VIEW |
| 4759737 | MOVE YOUR FEET SO OTHERS CAN EAT | VIEW |
| 4759647 | LIVEGREENANDPROSPER | VIEW |
Seventh Circuit Trademark Law: District Court Has Discretion Regarding Award of Attorneys’ Fees Under Lanham Act
Chicago, Illinois – The Seventh Circuit affirmed the denial of attorneys’ fees under the Lanham Act by the District Court for the Southern District of Illinois.
Plaintiff William Burford and Defendant Accounting Practice Sales, Inc. (“APS”) were parties to a contract under which Burford had agreed to market and facilitate the purchase and sale of accounting practices on behalf of APS. APS terminated the contract. Shortly thereafter, Burford started a competing business. For this business, Burford chose the name “American Accounting Practice Sales.” Burford also sued APS and Gary Holmes, the owner of APS, for breach of contract.
In response to Burford’s contract-claims lawsuit, APS filed a four-count counterclaim. Included in those counterclaims was an allegation that Burford had misappropriated APS’s trade name in violation of the Lanham Act, 15 U.S.C. § 1051 et seq. by using the business name “American Accounting Practice Sales.”
The district court held for APS on the contract claim, reasoning that the contract between the parties was of indefinite duration and was therefore terminable at will. After this ruling in favor of APS, but before the district court could consider the counterclaim, APS voluntarily dismissed its counterclaim under the Lanham Act with prejudice.
Burford then contended that, as the prevailing party on the Lanham Act claim, he was entitled to attorneys’ fees under 15 U.S.C. § 1117(a), asserting that APS’s pursuit of the Lanham Act claim was meritless and amounted to an abuse of process. The district court refused to grant attorneys’ fees on the theory that APS’s claim under the Lanham Act claim could have been pursued by a rational party seeking to protect its trademark.
Burford appealed. As part of his appeal, he asked the Seventh Circuit to reverse the district court’s denial of his request for attorneys’ fees under the Lanham Act. Circuit Judges William J. Bauer and David F. Hamilton, and District Court Judge Sara L. Ellis, sitting by designation, heard the matter.
The Seventh Circuit first held that the district court had erred in holding that the contract had not been breached. While indefinite-term contracts are by default terminable at will, it noted that the parties had contracted around that general rule by providing that APS could terminate the contract only if Burford violated the terms of the contract. On this issue, the Seventh Circuit reversed the district court.
On the question of attorneys’ fees, the Seventh Circuit affirmed the district court. Under 15 U.S.C. § 1117(a)(3), district courts have the discretion to award attorneys’ fees to those prevailing under the Act in “exceptional cases.” Such an “exceptional case” within the meaning of the Lanham Act can be found in those cases where the district court determines that the decision to bring the claim could be called an abuse of process.
In turn, such an abuse of process can be discerned in cases where, for example, “a rational litigant would pursue [the claim] only because it would impose disproportionate costs on his opponent” or where there was evidence that the party advancing the Lanham Act claim had done so “to obtain an advantage unrelated to obtaining a favorable judgment.”
The Seventh Circuit noted that Burford had failed to persuade the district court that the pursuit of the claim was objectively unreasonable or was intended to harass or to obtain an advantage unrelated to winning a favorable judgment. Consequently, because decision whether to award attorneys’ fees under the Lanham Act is left to the district court’s sound discretion, the lower court’s refusal to grant such fees was affirmed.
Indiana Copyright Litigation: Bell Files New Copyright Infringement Lawsuit
Indianapolis, Indiana – Indiana copyright attorney and professional photographer Richard N. Bell of McCordsville, Indiana has sued PROACT Search LLC of Wilmette, Illinois in the Southern District of Indiana on allegations of copyright infringement. At issue is a copyrighted photo of the Indianapolis skyline taken by Bell that has been registered by the U.S. Copyright Office.
In 2000, Plaintiff Bell photographed the downtown Indianapolis skyline. Bell indicates in this Indiana complaint that the photo has been registered by the U.S. Copyright Office as Registration Number VA0001785115.
PROACT Search, which does business on the Internet at www.proactsearch.com, advertises itself as a national executive search firm that assists school districts to fill leadership-level job vacancies.
In this Indiana copyright lawsuit, Bell contends that PROACT Search used his copyrighted image without permission when it used Bell’s photo in promotional material that announced that “Indianapolis Public Schools hires PROACT Search to find a new Deputy Superintendent.” Bell claims that Defendant “willfully and recklessly falsely claimed that it owned the copyrights of all images and photos contained in the advertising piece,” including Bell’s photo of Indianapolis.
Bell asserts that PROACT Search has thus profited from the use of the copyrighted photo. This use is alleged to have been committed willfully and deliberately and with oppression, fraud, and malice.
In this federal complaint, which Plaintiff Bell filed on his own behalf, Bell asserts claims of copyright infringement and unfair competition. He asks for an accounting of all gains, profits and advantages derived by Defendant as a result of the alleged infringement and for statutory and/or actual damages. He also seeks reimbursement of costs and reasonable attorneys’ fees.
Practice Tip: Richard Bell has been a prolific copyright plaintiff in the Indiana federal courts. Some previous blog posts regarding his litigation include:
- Bell Sues Georgia-Base FindTicketsFast.com for Copyright Infringement
- Richard Bell Files Two New Copyright Infringement Lawsuits
- Court Prevents Copyright Plaintiff Bell from Outmaneuvering Legal System; Orders Bell to Pay Almost $34,000 in Fees and Costs
- Three Default Judgments of $2,500 Ordered for Copyright Infringement
- Court Orders Severance of Misjoined Copyright Infringement Complaint
- Richard Bell Files Another Copyright Infringement Lawsuit
USPTO Seeks Nominations for Patent and Trademark Advisory Committees
Washington, D.C. – The U.S. Department of Commerce’s United States Patent and Trademark Office (“USPTO”) is seeking nominations to fill upcoming vacancies for the Patent Public Advisory Committee (PPAC) and the Trademark Public Advisory Committee (TPAC). Nominations must be postmarked or electronically transmitted on or before July 25, 2015. Submission details can be found in the Federal Register Notice.
The Public Advisory Committees for the USPTO were created through the Patent and Trademark Office Efficiency Act statute in the American Inventors Protection Act of 1999 to advise the Secretary of Commerce and the Under Secretary of Commerce for Intellectual Property and Director of the USPTO on the management of patent and trademark operations. The Public Advisory Committees review the policies, goals, performance, budget, and user fees of the patent and trademark operations, respectively, and advise the director on these matters. Each committee has nine voting members who are appointed by, and serve at the pleasure of, the Secretary of Commerce. Each member serves a three-year term.
For more information you may contact, Andrew C. Byrnes, Chief of Staff, Office of the Under Secretary and Director, USPTO, by facsimile transmission marked to his attention at (571) 273-0464.
Indiana Copyright Litigation: Bell Sues Georgia-Based FindTicketsFast.com for Copyright Infringement
Indianapolis, Indiana – Indiana attorney Richard N. Bell of McCordsville, Indiana filed an
intellectual property lawsuit in the Southern District of Indiana alleging that Find Tickets, LLC of Alpharetta, Georgia infringed the copyright of a photo of the Indianapolis skyline taken by Bell.
In 2000, Plaintiff Bell photographed the downtown Indianapolis skyline. Bell indicates in this complaint that the photo has been registered by the U.S. Copyright Office as Registration Number VA0001785115.
Find Tickets, LLC, which does business at the website www.findticketsfast.com, has been accused of infringing the copyright of this photo. In this single-defendant complaint, Bell contends that Find Tickets used his copyrighted image without permission and that, moreover, “each Defendant willfully and recklessly falsely claimed that it owned the copyrights of all images and photos contained in the Defendant’s website,” including Bell’s photo of Indianapolis. Consequently, alleges Bell, “Defendants have [sic] realized and continue to realize profits and other benefits rightfully belonging to Plaintiff.” Defendant Find Tickets is accused of “willfully and deliberately” engaging in copyright infringement “with oppression, fraud, and malice.”
In this federal complaint, copyright lawyer Bell makes claims of copyright infringement and unfair competition. Plaintiff asserts that he has suffered irreparable injury as a result of the alleged infringement of his copyrighted photo. Bell asks the court to declare that Find Tickets’ use of the photo violates Bell’s rights under the Copyright Act and to enjoin further infringing uses of his photo. He asks for an accounting of all gains, profits and advantages derived by Defendant as a result of the alleged infringement and for statutory and/or actual damages for each violation. Plaintiff also seeks reimbursement of costs and reasonable attorneys’ fees.
Indiana Trademark Litigation: Weekends Only, Inc. Sues Weekends Only Clearance Outlet
Fort Wayne, Indiana – An Indiana trademark lawyer for Weekends Only, Inc. of St. Louis, Missouri filed a trademark infringement lawsuit in the Northern District of Indiana alleging that AK Distribution LLC and KASH Subsidiaries, Inc. of Fort Wayne, Indiana, one or both of which does business as “Weekends Only Furniture & Mattress Clearance Outlet,” infringed the trademarks WEEKENDS ONLY and WEEKENDS ONLY FURNITURE OUTLET, U.S. Registration Numbers 2,669,149; 2,697,959; 2,834,336; and 2,891,146, which have been registered by the U.S. Trademark Office.
Plaintiff Weekends Only, Inc. operates business establishments in Indiana and Missouri. It contends that it owns and has used various trademarks, currently registered by the U.S. Trademark Office, that include the words “Weekends Only” since approximately 1997. These trademarks have been registered in Class 35 for “Retail store services featuring furniture.”
In this federal lawsuit, Plaintiff alleges that Defendants AK Distribution LLC and KASH Subsidiaries, Inc. have used and continue to use confusingly similar versions of the WEEKENDS ONLY and WEEKENDS ONLY FURNITURE OUTLET trademarks. In so doing, states Plaintiff, Defendants have committed trademark infringement under federal and state law, unfair competition under the state law of Indiana, false designation of origin, injury to business reputation and/or trademarks, common law unfair competition.
In the complaint, filed by an Indiana trademark attorney for Plaintiff, the following claims are alleged:
• Count I: Infringement of Federally-Registered Trademark
• Count II: Infringement of Common Law Rights in Trademarks
• Count III: Unfair and Deceptive Trade Practices in Violation of Indiana Code § 24-5-0.5-1 et seq.
• Count IV: False Designation of Origin Under 15 U.S.C. § 1125(a)
• Count V: Common Law Unfair Competition
• Count VI: Motion for Permanent Injunctive Relief
Plaintiff asks the court for injunctive relief and damages.
Indiana Trademark Litigation: ArcelorMittal Sues Arillotta et al. for Tarnishment, Deception and Forgery
Hammond, Indiana – Trademark attorneys for ArcelorMittal USA LLC of Chicago, Illinois sued alleging violations of intellectual property rights and other rights. The lawsuit, filed in the Northern District of Indiana, alleges that Albert Arillotta, Global Demolition and Recycling, LLC, NMC Metals Corporation, and Arillotta Enterprises, LLC, all of Swampscott, Massachusetts, engaged in false designation of origin and false endorsement; dilution by blurring and tarnishment; deception; forgery; and deceptive trade practices.
ArcelorMittal is a producer and supplier of steel products. It owns and operates a steelmaking facility in Burns Harbor, Indiana. ArcelorMittal claims rights in federal trademark registrations to “ArcelorMittal” (Reg. Nos. 3908649 and 3643643) and “Mittal” (Reg. No. 4686413).
In 2012, Plaintiff ArcelorMittal solicited proposals for the installation of a pig iron casting machine at its Burns Harbor steelmaking facility. Plaintiff indicates that Arillotta, through his company Arillotta Enterprises, Inc., submitted a proposal for the project but that it was rejected. Nonetheless, contends ArcelorMittal, Arillotta subsequently represented to various third parties that “Arcelor Mittal Burns Harbor” and Defendant(s) had, in fact, entered into a contract for such an installation. Plaintiff further claims in its federal lawsuit that Arillotta forged the signature of two individuals, Michael Rippey and Louis Schorsch, listed as officers of ArcelorMittal, on documents related to this false claim.
Plaintiff also indicates in this lawsuit that Arillotta, when later unable to make payments owing on another contract, falsely claimed that ArcelorMittal would wire transfer $338,200.00 to cover an initial payment. When no such payment was forthcoming, because Plaintiff indicates that no such agreement existed, the payee on that contract then began to demand the money directly from ArcelorMittal.
ArcelorMittal contends that, in sum, “Arillotta has forged contracts and purchase orders purporting to represent in excess of ten million dollars ($10,000,00.00) worth of commercial activities between the defendant companies and ArcelorMittal when, in fact, ArcelorMittal has not hired Arillotta or his companies to perform any of the work shown in the forged contracts and purchase orders.”
In its complaint against Arillotta and the other Defendants, trademark lawyers for ArcelorMittal list the following counts:
• Count I: False Designation of Origin and False Endorsement
• Count II: Dilution by Blurring and Tarnishment
• Count III: Deception
• Count IV: Forgery
• Count V: Deceptive Trade Practices
Plaintiff ArcelorMittal asks the court for injunctive relief, money damages, costs and attorneys’ fees.