November 21, 2014

Patent Law: Supreme Court Affirms Invalidity of Alice Corporation's Software Patents

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Washington, D.C. - The United States Supreme Court issued a unanimous opinion in Alice Corporation Pty. LTD v. CLS Bank International et al., Case No. 13-298. At issue was software that allows a neutral third party to ensure that all parties to a financial transaction have fully performed their obligations. The Court held that Alice Corporation's patents should not have been issued because they (1) consisted of software created to implement an abstract idea but (2) lacked an "inventive concept" sufficient to transform the abstract idea into a patent-eligible application.

Alice Corporation owned several patents that covered a manner for mitigating "settlement risk," i.e., the risk that one or more parties to an agreed-upon financial exchange will not satisfy their obliga¬tions. Alice Corporation's patent claims consisted of computer software that facilitated the exchange of financial obligations between the parties. The patents-in-suit claimed (1) a method for exchanging financial obligations, (2) a computer system configured to carry out the method for exchanging obligations, and (3) a computer-readable medium containing program code for performing the method of exchanging obligations.

Respondents (collectively, "CLS Bank"), which operate a global network that facilitates currency transactions, sued Alice Corporation, arguing that the patent claims at issue were invalid, unenforceable, or not infringed. Alice Corporation counterclaimed, alleging infringement.

All of the claims were held to be ineligible for patent protection by the district court because they purported to protect to an abstract idea. The Federal Circuit, sitting en banc, affirmed, although, of the ten judges, only five agreed on the reasoning behind the holding.

The Supreme Court held for CLS Bank, affirming the Federal Circuit, and held that the patent claims were drawn to a patent-ineligible abstract idea under 35 U.S.C. § 101 and, thus, could not be patented.

In this opinion, the Court defined the Section 101 framework as having two parts. First, the court must determine if the patent claim at issue is directed toward an abstract idea. Second, it must examine the elements of the claim to determine whether it contains an "inventive concept" sufficient to transform the abstract idea into a patent-eligible application.

The Court concluded that, in the case of the software patents-in-suit, "the method claims, which merely require generic computer implementation, fail to transform [an] abstract idea into a patent-eligible invention."

Practice Tip: Patent lawyers hoped that this much-anticipated case would clarify the extent to which software is patentable. The Supreme Court had a difficult task in drawing these lines. A ruling that allowed ideas that were overly broad and/or vague to be patented would have encouraged lawsuits by "patent trolls" and inhibited innovation by inventors who might fear that implementing their ideas would subject them to liability for patent infringement. On the other hand, a ruling that restricted the patentability of software too much could nullify thousands of existing patents and could also discourage innovation because an inventor's resulting creation would be more difficult to patent.

Continue reading "Patent Law: Supreme Court Affirms Invalidity of Alice Corporation's Software Patents" »

November 20, 2014

Indiana Trademark Law: About Trademark Infringement

What is trademark infringement?

Trademark infringement is the unauthorized use of a trademark or service mark on or in 

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connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services.

How do I know whether infringement has occurred?

To support a trademark infringement claim in court, a plaintiff must prove that it owns a valid mark, that it has priority (its rights in the mark(s) are "senior" to the defendant's), and that the defendant's mark is likely to cause confusion in the minds of consumers about the source or sponsorship of the goods or services offered under the parties' marks. When a plaintiff owns a federal trademark registration on the Principal Register, there is a legal presumption of the validity and ownership of the mark as well as of the exclusive right to use the mark nationwide on or in connection with the goods or services listed in the registration. These presumptions may be rebutted in the court proceedings.

Generally, the court will consider evidence addressing various factors to determine whether there is a likelihood of confusion among consumers. The key factors considered in most cases are the degree of similarity between the marks at issue and whether the parties' goods and/or services are sufficiently related that consumers are likely to assume (mistakenly) that they come from a common source. Other factors that courts typically consider include similarities between how and where the parties' goods or services are advertised, marketed, and sold; similarities in the purchasing conditions; similarities in the range of prospective purchasers of the goods or services; whether there is any evidence of actual confusion caused by the allegedly infringing mark; the defendant's intent in adopting its mark; and the strength of the plaintiff's mark.

The particular factors considered in a likelihood-of-confusion determination, as well as the weighing of those factors, vary from case to case. The amount and quality of the evidence involved can have a significant impact on the outcome of a trademark infringement lawsuit.

In addition to claiming likelihood of confusion, a trademark owner may claim trademark "dilution," asserting that it owns a famous mark and the use of your mark diminishes the strength or value of the trademark owner's mark by "blurring" the mark's distinctiveness or "tarnishing" the mark's image by connecting it to something distasteful or objectionable - even if there is no likelihood of confusion.

An experienced Indiana trademark attorney, taking the particular circumstances of your case into consideration, should be able to provide you with an opinion as to the validity and strength of a trademark owner's claims.

How do I protect my own mark and what if I believe someone is infringing?

While the provisions of Section 2(d) of the Lanham Act require the U.S. Patent and Trademark Office to refuse registration of a mark that is similar to a previously registered mark and is used on the same or related goods or services, the USPTO does not engage in any policing efforts or enforcement activities in connection with the infringement of registered marks. Thus, throughout the life of a trademark registration, a mark owner who wants to maintain rights in its mark must police its mark and enforce its rights against others who are infringing. If you think someone is infringing your trademark rights, you may pursue the options described in the following section. You should strongly consider contacting an Indiana attorney specializing in trademark law. Often, time is of the essence when it comes to enforcing trademark rights.

November 19, 2014

Indiana Copyright Law: Seventh Circuit Holds that Subsequent Copyrighted Works Do Not Extend Copyright Period for Earlier Works

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Chicago, Illinois - California attorney Leslie S. Klinger, co-editor of multiple collections of annotated works based on Arthur Conan Doyle's Sherlock Holmes fiction sued Conan Doyle Estate, Ltd. under the Declaratory Judgment Act in the Northern District of Illinois seeking a declaratory judgment that he may freely use material from those Sherlock Holmes works for which copyright protection has expired. The district court held that Klinger's use of material that was no longer subject to copyright was permissible. The Seventh Circuit affirmed.

Arthur Conan Doyle published 56 stories and 4 novels featuring the fictional character Sherlock Holmes. Of these stories, only the final 10, published between 1923 and 1927, are still protected by copyright.

Leslie Klinger, Plaintiff-Appellee, co-edited an anthology called A Study in Sherlock: Stories Inspired by the Sherlock Holmes Canon. Klinger had not sought a license from Doyle's estate, presuming that one was not necessary, as the copyrights on most of the works in the "canon" had expired. The estate disagreed and demanded that Random House, which had agreed to publish Klinger's book, pay $5,000 for a copyright license. Random House acquiesced and, in 2011, the anthology was published.

The trouble began when Klinger and his co-editor decided to create a sequel, "In the Company of Sherlock Holmes" and entered into negotiations with Pegasus Books, a publisher. The Doyle estate again demanded a fee for a copyright license and threatened to interfere with distribution of the book if that copyright license fee was not paid, telling Pegasus, "If you proceed instead to bring out Study in Sherlock II [the original title of "In the Company of Sherlock Holmes"] unlicensed, do not expect to see it offered for sale by Amazon, Barnes & Noble, and similar retailers. We work with those compan[ies] routinely to weed out unlicensed uses of Sherlock Holmes from their offerings, and will not hesitate to do so with your book as well." No threat of a lawsuit for copyright infringement was explicitly made. Pegasus subsequently refused to publish the book unless and until Klinger obtained a copyright license from the Doyle estate.

Instead of purchasing a license, Klinger sued the estate seeking a declaratory judgment that he could freely use any material from the Sherlock Holmes works for which the period of copyright protection had expired.

The district court held in Klinger's favor. The estate appealed to the Seventh Circuit on two alternative grounds. The estate first contended that the district court lacked subject matter jurisdiction under the Declaratory Judgment Act because there was no "actual case or controversy." Second, it asserted that a copyright on a "complex" character, whose full complexity is not revealed until a later story, remains protected under copyright law until the later story falls into the public domain.

Circuit Judge Posner, writing for the court, rejected both arguments. The "case or controversy," necessary for federal jurisdiction was demonstrated by the estate's "twin threats" of blocking the distribution of the book and the implied threat of a copyright lawsuit against the publisher, Klinger and the book's co-editor for copyright infringement if the book were published without a license. That such a case or controversy existed was also demonstrated by the fact that Klinger could have sued on a claim of tortious interference with advantageous business relations as a result of the estate's intimidation of his publisher.

The court then considered the question of "whether copyright protection of a fictional character can be extended beyond the expiration of the copyright on it because the author altered the character in a subsequent work." The estate urged the court to grant additional copyright protection in its case, arguing that characters such as Sherlock Holmes were "round" and/or "complex" and thus deserving of greater shelter under copyright law than fictional characters that were "flat" and/or "simple."

The court could find no basis in statute or case law to support the extension of a copyright beyond its expiration. Thus, it affirmed the uncontested matter of copyright protection for the later works - namely, a right to recover for copyright infringement still existed for some portions of the Sherlock Holmes works for which the copyrights had not yet expired. However, that protection was limited to only those elements of the later Sherlock Holmes works that included "incremental additions of originality." The remainder, the court opined, had passed into the public domain, regardless of the dimensions of the characters portrayed.

Practice Tip: The court was also unpersuaded by the Doyle estate's argument to extend copyright law on the grounds that failure to do so would diminish authors' incentives to create. After noting that Arthur Conan Doyle had died 84 years prior, thus rendering the argument inapplicable in the current litigation, the court noted that "extending copyright protection is a two-edged sword from the standpoint of inducing creativity, as it would reduce the incentive of subsequent authors to create derivative works (such as new versions of popular fictional characters like Holmes and Watson) by shrinking the public domain."

Continue reading "Indiana Copyright Law: Seventh Circuit Holds that Subsequent Copyrighted Works Do Not Extend Copyright Period for Earlier Works" »

November 17, 2014

Indiana Trademark Law: Some Basic Facts About Trademarks

What is a trademark?

A trademark is generally a word, phrase, symbol, or design, or a combination of these 

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elements, that identifies and distinguishes the source of one party's goods from those of others. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than goods. The terms "trademark" or "mark" are commonly used to refer to both trademarks and service marks. Although federal registration of a mark is not mandatory, it has several advantages, including notice to the public of the registrant's claim of ownership of the mark, a legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the goods and/or services listed in the registration.

Do trademarks, copyrights, and patents protect the same things?

No. Trademarks, copyrights, and patents protect different types of intellectual property. A trademark typically protects brand names and logos used on goods and services. A copyright protects an original artistic or literary work. A patent protects an invention. For example, if you invent a new kind of vacuum cleaner, you would apply for a patent to protect the invention itself. You would apply to register a trademark to protect the brand name of the vacuum cleaner. And you might register a copyright for the TV commercial that you use to market the product.

Is federal registration of my mark required?

No. In the United States, parties are not required to register their marks to obtain protectable rights. You can establish "common law" rights in a mark based solely on use of the mark in commerce, without a registration. However, owning a federal trademark registration on the Principal Register provides a number of significant advantages over common law rights alone, including:

    • A legal presumption of your ownership of the mark and your exclusive right to use the mark nationwide on or in connection with the goods/services listed in the registration (whereas a state registration only provides rights within the borders of that one state, and common law rights exist only for the specific area where the mark is used);
    • Public notice of your claim of ownership of the mark; Listing in the USPTO's online databases;
    • The ability to record the U.S. registration with the U.S. Customs and Border Protection Service to prevent importation of infringing foreign goods;
    • The right to use the federal registration symbol "®";
    • The ability to bring an action concerning the mark in federal court; and
    • The use of the U.S. registration as a basis to obtain registration in foreign countries.

How long does a trademark registration last?

A trademark registration may remain in force for potentially unlimited consecutive ten-year periods as long as the owner meets the legal requirements for post-registration maintenance and renewal and timely files all necessary documents. The owner must file a "Declaration of Use" between the fifth and sixth year following registration, attesting to the continued use or excusable nonuse of the mark on or in connection with the goods and/or services in the registration. In addition, the owner must file a combined Declaration of Use (or Excusable Nonuse) and Application for Renewal between the ninth and tenth year after registration, and every 10 years thereafter, attesting to the continued use or excusable nonuse of the mark on or in connection with the goods and/or services in the registration and requesting to renew the registration. If these documents are not timely filed, the registration will expire or be cancelled and cannot be revived or reinstated.

Practice Tip:

Filing a trademark application at the USPTO starts a legal proceeding that may be complex and will require you to comply with all requirements of the trademark statute and rules. Most applicants hire an attorney who specializes in trademark matters to represent them in the application process and provide legal advice. While a USPTO trademark examining attorney will try to help you through the process even if you do not hire a lawyer, no USPTO attorney may give you legal advice. Once you hire an attorney, the USPTO will only communicate with your attorney about your application.

A private Indiana trademark attorney can help you before, during, and after the trademark application process, including helping you police and enforce the trademark registration that may issue from your application. While you are not required to have an attorney, an attorney may save you from future costly legal problems by conducting a comprehensive search of federal registrations, state registrations, and "common law" unregistered trademarks - all done before you file your application. Comprehensive searches are important because other trademark owners may have stronger protected legal rights in trademarks similar to yours even though they are not federally registered. Therefore, those unregistered trademarks will not appear in the USPTO's Trademark Electronic Search System (also known as "TESS") database but could still ultimately prevent you from using your mark even if the USPTO registers your mark.

In addition, trademark lawyers can help you navigate the application process to provide optimal protection of your trademark rights, by, for example, accurately identifying and classifying your goods and services, and preparing responses to any refusals to register that an examining attorney may issue. Further, a private intellectual property attorney can help you understand the scope of your trademarks rights and advise you on the best way to police and enforce those rights, including what to do if other trademark owners allege that you are infringing their mark. Enforcement of trademark rights is the responsibility of the holder of the trademark.

The information presented on this site does not constitute legal advice. It should not be considered to replace advice from an Indiana trademark attorney.

November 14, 2014

Indiana Trade Secret Law: Court Rules on Enforceability of Trade Secret Agreements

Indianapolis, Indiana - Pennsylvania trade secret attorneys, in conjunction with Indiana co-counsel, for Distributor Service, Incorporated ("DSI") of Pennsylvania sued in the Southern District of Indiana alleging that Rusty J. Stevenson ("Stevenson") of Indiana and Rugby IPD Corp. d/b/a Rugby Architectural Building Products ("Rugby") of New Hampshire violated an agreement containing non-competition, non-solicitation, and non-disclosure provisions. In the instant order, the court ruled on motions for summary judgment filed by DSI and Stevenson.

Plaintiff DSI is a seller and distributor of wholesale specialty building products to businesses in the Middle Atlantic and Midwest regions of the country. It has eight locations in Indiana, Pennsylvania, Ohio, Kentucky, and Michigan. Defendant Rugby is also in the business of selling and distributing wholesale specialty building products. It does so throughout the United States, including in Indiana, and is a direct competitor of DSI. Stevenson, formerly an employee of DSI, is currently employed by Rugby.

DSI hired Stevenson in October 1999 to be a salesman. When he started, Stevenson had no sales experience in the specialty-building-products industry or any related industry. DSI indicated that it had invested significant time and resources to provide specialized training to Stevenson. In April 2005, DSI promoted Stevenson to the position of sales manager. Later, as part of his employment, Stevenson signed a Confidentiality and Non-Competition Agreement with DSI. This agreement contained provisions for Non-Competition/Non-Solicitation and Non-Disclosure of Confidential Information.

During his employment with DSI, Stevenson had access to information that DSI considered to be protectable as intellectual property assets. This information included all of DSI's "Customer Lists," "Customer Product Preferences," "Competitive Pricing," and "Competitive Cost Structure" for DSI's Indianapolis branch. DSI asserted that this information was "the cornerstone of DSI's ability to compete effectively in the specialty building products industry in Indiana," and that the information "derives economic value from not being generally known to other persons who can obtain economic value from its disclosure or use."

In August 2013, Mr. Stevenson resigned from DSI to take a position as the general manager of Rugby's Indianapolis branch. Shortly thereafter, DSI sued Rugby and Stevenson seeking, inter alia, damages and injunctive relief. DSI asserted claims for: (1) breach of the Non-Compete Provision; (2) breach of the Non-Solicitation Provision; (3) breach of the Non-Disclosure Provision; (4) recovery of attorneys' fees and expenses under the Agreement; (5) misappropriation of trade secrets; (6) breach of duty of loyalty, and (7) tortious interference.

In this opinion, District Judge Jane Magnus-Stinson reviewed cross-motions for summary judgment filed by DSI and Stevenson. DSI's motion was denied in its entirety. Stevenson's motion for summary judgment was granted as to Count 1, breach of the Non-Compete Provision, and Count 2, breach of the Non-Solicitation Provision. Stevenson's motion for summary judgment on Count 3, breach of the Non-Disclosure Provision, was denied.

The court began by discussing the standard for upholding the provisions at issue. It is a longstanding principle in Indiana that covenants that restrict a person's employment opportunities are strongly disfavored as a restraint of trade. To be enforceable, such restraints, such as a noncompetition agreement, must be reasonable. The court noted that it, while in many other contexts reasonableness was a question of fact, the reasonableness of a noncompetition agreement was a question of law and, thus, was capable of evaluation in response to the parties' motions for summary judgment.

The first hurdle for DSI was to show that the agreement protected a legitimate interest, defined as "an advantage possessed by an employer, the use of which by the employee after the end of the employment relationship would make it unfair to allow the employee to compete with the former employer." Indiana law provides that goodwill, including "secret or confidential information such as the names and addresses of customers and the advantage acquired through representative contact," is a legitimate protectable interest. DSI argued that it had a legitimate interest in protecting the customer relationships that Stevenson had developed during his years working for DSI as well as the information embodied in DSI's Customer Lists, Customer Product Preferences, Competitive Pricing, and Competitive Cost Structure, to which Stevenson had been permitted access. The court agreed that this was a protectable interest.

DSI next had to establish that Non-Compete Provision of the agreement was "reasonable in scope as to the time, activity, and geographic area restricted." DSI argued that the provision was limited merely to restricting Stevenson from engaging in competitive business activity. The court was not convinced. Instead, it noted that, as drafted, the "competitive business activity" restriction applied to the activities of Stevenson's new employer, not to Stevenson himself. Thus, because Rugby engaged in business activities that were competitive to DSI, the agreement would de facto prohibit Stevenson from working for Rugby in any capacity, despite that no "in-any-capacity" language was explicitly applied to Stevenson in the agreement. "For example," the court explained, "[under DSI's agreement,] Mr. Stevenson could not serve lunch in Rugby's cafeteria or change light bulbs in Rugby's offices because Rugby competes with DSI." The court concluded that, as a result, the Non-Compete Provision was overly broad and unreasonable.

Regarding this provision, DSI also contended that alleging and proving that the employee had been provided with trade secrets could render an otherwise unenforceable non-competition clause enforceable. The court rejected this argument.

The court also granted summary judgment for Stevenson on the Non-Solicitation Provision. This provision attempted to restrict Stevenson's ability to solicit "any customer or prospective customer of [DSI] with which [Stevenson] communicated while employed by [DSI]." The court found this restriction to be vague as to "prospective customer" as well as overbroad and unreasonable in scope.

Finally, the court declined to rule on the Non-Disclosure Provision on summary judgment. It held that, to evaluate whether this provision had been violated, it would need to determine whether "customer lists" and "the identities of key personnel and the requirements of the customers of [DSI]" were confidential. As the evidence submitted regarding confidentiality was "vague, generalized, and conflicting," the court found that a genuine issue of material fact existed with regard to the Non-Disclosure Provision and, consequently, partial summary judgment in favor of either party was inappropriate on the record before it.

Practice Tip #1: Summary judgment in federal court is guided by Rule 56 of the Federal Rules of Civil Procedure. A motion for summary judgment asks the court to find that a trial on a particular issue or issues is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. The moving party is entitled to summary judgment only if no reasonable fact-finder could return a verdict for the non-moving party.

Practice Tip 2: In a similar case, decided earlier this year, the Indiana Court of Appeals affirmed the trial court's ruling that the noncompetition agreement binding an ex-employee of the plaintiff was overly broad and, thus, unenforceable.

Continue reading "Indiana Trade Secret Law: Court Rules on Enforceability of Trade Secret Agreements" »

November 13, 2014

USPTO to Offer Webcast of First Cybersecurity Partnership Meeting

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WASHINGTON, D.C. - The USPTO will offer a forum, presented both on-site and webcast, for stakeholders seeking patent protection in the cybersecurity and network-security sectors.

The U.S. Department of Commerce's United States Patent and Trademark Office ("USPTO") will host its first Cybersecurity Partnership Meeting tomorrow, Friday, November 14, 2014, in Menlo Park, California. The meeting will serve as a collaborative forum for stakeholders seeking patent protection in the cybersecurity and network security sectors to share ideas, experiences, and insights with USPTO staff.

For this inaugural event, the USPTO has partnered with the National Institute of Standards and Technology ("NIST"), whose experts will present information on their voluntary Framework for Improving Critical Infrastructure Cybersecurity. The Framework, created through collaboration between industry and government, consists of standards, guidelines, and practices to promote the protection of critical infrastructure. USPTO staff will also discuss cybersecurity patent initiatives, key computer security patent application statistics, and examination guidelines for patent eligible subject matter following the Alice Corp. v. CLS Bank Supreme Court decision. In addition to the presentations from NIST and the USPTO, several key stakeholders will present their views on topics focusing on the intersection of intellectual property and cybersecurity.

Registration for the meeting, which will begin at 8:30 am Pacific Time, is now closed. However, a webcast will be available.

Practice Tip: For more information, including webcast access instructions and a list of speakers, you may visit www.uspto.gov/about/contacts/phone_directory/pat_tech/cybersecurity-partenership-mtg.jsp.

November 12, 2014

165 Trademark Registrations Issued to Indiana Companies in October 2014

The U.S. Trademark Office issued the following 165 trademark registrations to persons and businesses in Indiana in October 2014 based on applications filed by Indiana trademark attorneys:

Reg. No. Word Mark Click to View
4616762 CUE CANDY VIEW
4630232 BERRY ESSENTIALS VIEW
4628883 IP BAR VIEW
4630201 MEDAPPAREL VIEW
4628574 CERA VIEW
4628564 INTERPRO VIEW
4628555 ALBERT'S VIEW
4628480 HOME PRO VIEW
4628274 CAMPERSWEATHER.COM VIEW
4628192 TRAIL RATIONS PURE HONEY VIEW

Continue reading " 165 Trademark Registrations Issued to Indiana Companies in October 2014" »

November 10, 2014

Indiana Patent Litigation: Lippert Files Patent Infringement Lawsuit Against MOR/ryde

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South Bend, Indiana - Indiana patent lawyers for Lippert Components Manufacturing, Inc. of Elkhart Indiana sued in the Northern District of Indiana alleging that MOR/ryde International Inc. and MOR/ryde Inc., both of which are also from Elkhart Indiana, infringed "Equalizer for Suspension System," Patent Nos. 7,918,478 and 7,296,821, which have been issued by the U.S. Patent Office.

At issue in this litigation are U.S. Patent Nos. 7,918,478 ("the '478 Patent") and 7,296,821 ("the '821 Patent"). These inventions pertain to "equalizers" that dampen vibrations for recreational vehicle trailers. Plaintiff Lippert contends that Defendants MOR/ryde International Inc. and MOR/ryde Inc. (collectively, "MOR/ryde") have infringed, and continue to infringe, these patents. The accused products include MOR/ryde's CRE/3000 and SRE/4000 equalizer products.

Lippert states that MOR/ryde knew of Lippert's intellectual property rights in the '478 Patent and that, despite this knowledge, MOR/ryde infringed at least claim 1 of that patent. Lippert also asserts that MOR/ryde induced infringement by others as well as contributed to others' infringement of at least claim 15 of the '478 Patent.

Lippert makes similar allegations regarding its '821 Patent, stating that MOR/ryde knew of Lippert's patents rights in that patent and that MOR/ryde nonetheless infringed at least claim 1. Finally, Lippert contends that MOR/ryde induced infringement by others and contributed to others' infringement of at least claim 14 of the '821 Patent.

In this Indiana patent infringement lawsuit, the following claims are asserted:

• Count I: '478 Patent Infringement

• Count II: '821 Patent Infringement

Lippert asserts that Defendants' acts have been willful and contend that those actions render this an "exceptional case" as that term is defined in 35 U.S.C. §285.

Lippert asks, via its Indiana patent counsel, that the court:

• Preliminarily and permanently enjoin both MOR/ryde entities and their agents from infringing, or from contributing to or inducing others to infringe, Lippert's '478 Patent and '821 Patent;

• Award Lippert monetary damages adequate to compensate Lippert for past infringement consistent with 35 U.S.C. § 284, up to and including treble the amount of actual damages assessed, together with costs and prejudgment interest;

• Award Lippert its reasonable attorneys' fees and costs pursuant to 35 U.S.C. §285; and

• Order MOR/ryde to provide notice to their customers of the infringing systems and of MOR/ryde's unlawful acts.

Practice Tip #1:  A court may award increased damages for willful infringement. These extra damages are known as punitive damages. An award of punitive damages, up to and including a trebling of damages, is appropriate when an infringer has acted in wanton disregard of the patentee's intellectual property rights. In determining whether the infringing behavior supports increased damages, the court will consider the "totality of the circumstances."

Potential exposure for increased damages may be reduced by seeking - and acting on - timely advice from a competent patent lawyer. In contrast, the failure to seek and heed such advice may increase the probability that the court will find that the defendants have acted willfully.

Practice Tip #2: Lippert is not new to patent litigation. In fact, it has sued various competitors for patent infringement in 2003, 2008, 2012 and again in 2013. Lippert dropped the first three lawsuits. While the 2003 litigation lasted about a year and a half, the infringement actions filed in 2008 and 2012 were dropped only two months after the complaints were filed. The 2013 patent infringement lawsuit is ongoing.

Practice Tip #3: Under U.S. patent law, a trial court may award attorneys' fees in cases of patent infringement litigation that it deems "exceptional." Two recent U.S. Supreme Court rulings revisited how "exceptional" is defined. In part as a result of these rulings, plaintiffs filing questionable patent infringement lawsuits must exercise greater caution, as trial judges will now have greater latitude to award attorneys' fees - including awarding fees to prevailing defendants - in those cases in which they determine that the conduct of the losing party "stands out from others."

Continue reading "Indiana Patent Litigation: Lippert Files Patent Infringement Lawsuit Against MOR/ryde " »

November 3, 2014

Patent Office Issues 165 Patents To Indiana Citizens in October 2014

The U.S. Patent Office issued the following 165 patent registrations to persons and businesses in Indiana in October 2014, based on applications filed by Indiana patent attorneys:

Patent No. Title
8874256 Monitoring and control system for commodity loading 
8872399 Stator winding assembly and method 
8872369 Starter machine system and method 
8872154 Field effect transistor fabrication from carbon nanotubes 
8872102 Ion mobility spectrometer and method of operating same 
8871943 Process for the preparation of 4-amino-5-fluoro-3-halo-6-(substituted)picolinates 
8871727 Ectoparasiticidal methods and formulations 

Continue reading "Patent Office Issues 165 Patents To Indiana Citizens in October 2014" »

October 31, 2014

Indiana Patent and Copyright Litigation: Lake Lite Sues Multiple Defendants for Patent and Copyright Infringement

SolarDockLightPicture.pngFort Wayne, Indiana - A patent and copyright attorney for Lake Lite Inc. of Laotto, Indiana filed a complaint in the Northern District of Indiana asserting, inter alia, that Universal Forest Products, Inc. of Grand Rapids, Michigan ("UFP"); Universal Consumer Products, Inc., also of Grand Rapids, Michigan ("UCP"); and Maine Ornamental, LLC of Greene, Maine infringed "Solar Dock Light" and "Low Profile Solar LED Lamp," Patent Nos. D697,246 and 8,845,126, which have been issued by the U.S. Patent Office.

Lake Lite is in the business of designing and selling dock lights and other related products and accessories in the boating/dock industry. Its product line includes solar-related dock lights.

In April 2012, Lake Lite first began to offer a "Solar Dot" line of products. Lake Lite indicates that UFP inquired about collaborating with Lake Lite to offer the Solar Dot products to UFP's customers and that, in November 2012, a mutual non-disclosure agreement was entered so that confidential information regarding Lake Lite's Solar Dot products could be disclosed and the potential collaboration evaluated. The disclosed information included Lake Lite's copyright applications to now-copyrighted materials, registered as U.S. Copyright Nos. VAu001118627 and VAu001156962.

Lake Lite asserts that, during these negotiations, it made numerous modifications requested by UFP for which it was not compensated. Lake Lite and UFP failed to reach an agreement about licensing terms and discontinued negotiations. Instead, Lake Lite asserts, UFP has now wrongfully begun offering its own "Solar Deck and Dock Lights."

In this Indiana copyright and patent litigation, Plaintiff Lake Lite's specific complaints include that Defendants have been unjustly enriched as a result of their manufacture, importing, marketing and sale of their solar deck and dock light products. Lake Lite contends that Defendants' acts include infringement of Lake Lite's copyrights and patents, unauthorized use and misappropriation of Lake Lite's confidential information and trade secrets and violation of the mutual non-disclosure agreement between Lake Lite and UCP.

The complaint, filed by a copyright and patent lawyer for Lake Lite, alleges the following:

• Count One - Copyright Infringement

• Count Two - Infringement of U.S. Patent No. D697,246

• Count Three - Infringement of U.S. Patent No. 8,845,126

• Count Four - Breach of Contract

• Count Five - Breach of Implied Duty of Good Faith and Fair Dealing

• Count Six - Violation of Indiana Uniform Trade Secret Act

• Count Seven - Unjust Enrichment

Lake Lite asks for a judgment of infringement of its copyrights-in-suit, of infringement of its patents-in-suit, that the non-disclosure agreement was violated by Defendants, that Defendants violated the implied duty of good faith and fair dealing in their dealings with Lake Lite regarding the Solar Dot products, that Defendants have misappropriated Lake Lite's trade secrets and that Defendants have been unjustly enriched.

Lake Lite seeks injunctive relief; damages, including punitive damages; costs and fees, including attorneys' fees.

Practice Tip:

Indiana Code Section 24-2-3-2 defines a trade secret as:

information, including a formula, pattern, compilation, program, device, method, technique, or process, that:

1. derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and

2. is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

The four general characteristics of a trade secret are:

1. it is information;

2. that derives independent economic value;

3. that is not generally known, or readily ascertainable by proper means by others who can obtain economic value from its disclosure or use; and

4. that is the subject of efforts, reasonable under the circumstances, to maintain its secrecy.

Continue reading "Indiana Patent and Copyright Litigation: Lake Lite Sues Multiple Defendants for Patent and Copyright Infringement " »

October 29, 2014

Indiana Patent Litigation: Draper Sues Vutec for Patent Infringement

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Indianapolis, Indiana - Patent attorneys for Draper, Inc. of Spiceland, Indiana sued in the Southern District of Indiana alleging that Vutec Corporation of Coral Springs, Florida infringed the patented "Roller Operated System with Mounting Assembly for Multi-Stage Installation," Patent No. 6,532,109, and "Screen System," Patent No. 6,816,308, which were issued by the U.S. Patent Office.

Draper provides consumers with products such as projection screens, window shades, projector lifts and mounts and other home theater accessories. Vutec designs and manufactures projection screens and audio-visual accessories.

In its complaint, filed by patent attorneys for Draper, the following claims are asserted:

• Count I: Vutec Motorized Projection Screen Model - LECTRIC I-C - Patent Infringement of United States Patent No. 6,532,109

• Count II: Vutec Motorized Projection Screen Model - LECTRIC III-C - Patent Infringement of United States Patent No. 6,532,109

• Count III: Vutec Motorized Projection Screen Model - LECTRIC II-e Patent Infringement of United States Patent No. 6,532,109

• Count IV: Vutec Motorized Projection Screen Model - LECTRIC IV-e - Patent Infringement of United States Patent No. 6,532,109

• Count V: Vutec Motorized Projection Screen Model - LECTRIC I-C - Patent Infringement of United States Patent No. 6,816,308

• Count VI: Vutec Motorized Projection Screen Model - LECTRIC III-C - Patent Infringement of United States Patent No. 6,816,308

• Count VII: Vutec Motorized Projection Screen Model - LECTRIC II-e Patent Infringement of United States Patent No. 6,816,308

• Count VIII: Vutec Motorized Projection Screen Model - LECTRIC IV-e - Patent Infringement of United States Patent No. 6,816,308

Draper asserts that Vutec's infringement has been willful, deliberate, and with knowledge of Draper's intellectual property rights and asks that the court:

A. adjudge and decree that U.S. Patent Nos. 6,532,109 and 6,816,308 are valid and enforceable against Vutec and that Vutec has infringed and continues to infringe the patents;

B. grant injunctions enjoining acts of infringement by Vutec, its agents, and those acting in concert with it;

C. enter an award to Draper of such damages as it shall prove at trial against Vutec that are adequate to compensate Draper for said infringement as permitted under the Patent Act;

D. order an award to Draper of up to three times the amount of compensatory damages because of Vutec's willful infringement and any enhanced damages as provided by 35 U.S.C. § 284;

E. render a finding that this case is "exceptional" and award Draper its costs and reasonable attorneys' fees, as provided by 35 U.S.C. § 285;

F. award Draper any profits that Draper lost due to Vutec's infringement of U.S. Patent Nos. 6,532,109 and 6,816,308; and

G. award Draper pre-judgment and post-judgment interests on damages.

Practice Tip: Deciding simply to ignore a complaint can be a costly error. Failing to present the defendant's account of the facts and arguments about the proper application of the law can result in the trial court considering only the plaintiff's side of the story. In other words, if the defendants choose to leave a complaint unanswered, the court may deem the well-pled allegations of the plaintiff to have been admitted by the defendants due to their failure to deny them.

Continue reading "Indiana Patent Litigation: Draper Sues Vutec for Patent Infringement" »

October 27, 2014

Indiana Copyright Litigation: ABRO Sues for Infringement of Product Packaging

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South Bend, Indiana - Indiana copyright attorneys for ABRO Industries, Inc. of South Bend, Indiana sued in the Northern District of Indiana alleging that 1 New Trade, Inc. of Baltimore, Maryland ("New Trade"), Quest Specialty Coatings, LLC of Menomonee Falls, Wisconsin ("Quest"), Igor Zorin and Boris Babenchick and Vadim Fishkin, infringed copyright protections associated with ABRO's carburetor and choke cleaner package, pending U.S. Copyright Application Case No. 1-1845314781, which is currently under review with the U.S. Copyright Office.

ABRO markets and sells various automotive, industrial and consumer products throughout the world. It claims ownership of an extensive portfolio of intellectual property rights in more than 165 countries. ARBO indicates that, since at least 1992, it has continuously sold and distributed a carburetor and choke cleaner, the packaging of which is the subject of this intellectual property lawsuit.

In this copyright litigation, ABRO alleges that New Trade, under the direction and control of Zorin, Babenchik and Fishkin, is unfairly competing with ABRO by obtaining products from an affiliate of an ABRO supplier in the United States and then distributing the products in containers nearly identical to ABRO's containers used with identical products, in the same markets, and to the same customers.

Defendants Zorin, Babenchick, Fishkin and New Trade are accused of having reproduced ABRO's packaging work by using "nearly identical" packaging for New Trade's competing carburetor and choke cleaning product. Defendants Zorin and Babenchick are the principal owners of Defendant New Trade. Defendant Fishkin is New Trade's general manager. Defendant Quest is accused of supplying the carburetor and choke cleaning product.

In its complaint, filed by Indiana copyright lawyers, ABRO lists the following claims:

• Count I: Copyright Infringement

• Count II: Personal Liability and/or Vicarious Liability for Copyright Infringement -Zorin, Babenchik, and Fishkin

In its complaint, filed by Indiana copyright lawyers, ABRO asks for the following:

A. Judgment on all counts against each of the Defendants individually and jointly and severally and in favor of ABRO;

B. A preliminary and permanent injunction enjoining and restraining Defendants, their agents, and all persons who act in concert and participation with them who learn of the injunction through personal service or otherwise:

(1) From further acts of infringement; and

(2) From copying, using, distributing, publishing by any means or creating a derivative work of the Work under 17 U.S.C. §502;

C. An award of actual damages caused by and any profits obtained by Defendants attributable to infringement of the Work pursuant to 17 U.S.C. §504(b);
D. For infringement of the Work occurring after registration thereof, an award of statutory damages or alternatively actual damages caused by and any profits obtained by Defendants attributable to the infringement pursuant to 17 U.S.C. §§504(b) and 504(c);
E. Impoundment and destruction of all products, catalogs, advertisements, promotional materials or other materials in Defendants' possession, custody or control found to have been made or used in violation of ABRO's copyrights pursuant to 17 U.S.C. §503;
F. An award of reasonable attorneys' fees and costs pursuant to 17 U.S.C. §505; and
G. An award of prejudgment and post-judgment interest.

Practice Tip:

This is an interesting complaint. Plaintiff makes what, at first glance, appears to be a case of trademark/trade-dress infringement, including allegations such as "intent to capitalize on ABRO's goodwill and well-known reputation," which are normally found in a trademark complaint. ABRO also refers in its complaint to its "extensive anti-counterfeiting program throughout the world... [which has] has resulted in countless raids, product seizures, arrests and jail terms for counterfeiters." Yet this lawsuit is styled as a copyright case.

Copyright law in the United States is founded on the Constitutional goal of "promot[ing] the Progress of Science and useful Arts" by providing exclusive rights to creators. Protection by copyright law gives creators incentives to produce new works and distribute them to the public. In doing so, the law strikes a number of important balances in delineating what can be protected and what cannot, determining what uses are permitted without a license, and establishing appropriate enforcement mechanisms to combat piracy.

The law of copyright is generally thought of as affording protection to works that are typically thought of as art - books, paintings, music and the like. Nonetheless, works that are not primarily designed as art, such as elements of product packaging, might still secure protection by registering with the U.S. Copyright Office. A copyright registration, if available, is easier and less expensive to obtain than a registered patent or trademark. The registration remains valid much longer than a patent and does not require use in commerce, as does a trademark.

Copyright protection also provides benefits to a plaintiff when suing for infringement. In many cases, copyright infringement can be proved more easily than others types of infringement. Moreover, the damages available upon proof of infringement include statutory damages, available without a showing of harm, as well as attorneys' fees, which are available without pleading or proving that the case was "exceptional."

Continue reading "Indiana Copyright Litigation: ABRO Sues for Infringement of Product Packaging" »

October 24, 2014

USPTO and the State Intellectual Property Office of China Launch Direct Electronic Priority Document Exchange

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Washington, D.C. - New free, secure service simplifies patent application procedures.

The U.S. Department of Commerce's United States Patent and Trademark Office ("USPTO") and the State Intellectual Property Office of China ("SIPO") recently launched a new free service that will allow the two offices to electronically exchange patent application priority documents directly. This new service will help streamline the patent application process and reduce costs for businesses, which are increasingly pursuing patent rights globally.

The new service will allow the USPTO and the SIPO, with appropriate permissions, to obtain electronic copies of priority documents filed with the other office from its electronic records management system at no cost to the applicant. With this new service, applicants will no longer need to obtain and file paper copies of the priority documents; however, they are still responsible for ensuring that priority documents are provided in a timely manner.

"The USPTO is committed to building a better patent system both at home and abroad," said Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the USPTO Michelle K. Lee. "By expediting the processing of patent applications between the USPTO and SIPO, we can provide greater cost savings to applicants and advance our goals toward stronger global intellectual property promotion and protection."

Under the Paris Convention for the Protection of Industrial Property, a treaty that provides a number of important rights for innovators, a patent applicant may file an application in one Paris Convention member country (the priority document), and within 12 months, file corresponding applications in other member countries, while obtaining priority to the first application's filing date. This 12-month period allows applicants to make important decisions about where to file subsequent applications to seek protection for their inventions. In order to perfect the claim of priority to an earlier foreign filing, however, applicants are generally required to file paper copies of the priority document in each of the later-filing offices at their own expense.

The USPTO exchanges priority documents through secure, electronic connections using the Trilateral Document Access (TDA) Web Services at no cost to the applicant. This secure electronic exchange of copies of priority documents promotes sharing of information between the USPTO and the SIPO, and reduces the administrative costs associated with handling paper copies of priority documents and scanning them into the offices' electronic image record management systems. All users will benefit from the simplified process and cost reduction that the new service provides.

Practice Tip: Forms and instructions for using this free service are available on the USPTO's website: www.uspto.gov/patents/process/file/pdx/pdx_index.jsp. For further information, see the Official Gazette Notice: www.uspto.gov/patents/law/notices/2014.jsp.

October 23, 2014

Indiana Patent Litigation: Lilly Sues Alleging Infringement of ALIMTA

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Indianapolis, Indiana - An Indiana patent attorney for Eli Lilly and Company of Indianapolis, Indiana ("Lilly") and The Trustees of Princeton University of Princeton, New Jersey ("Princeton") filed a patent infringement complaint in the Southern District of Indiana alleging that Nang Kuang Pharmaceutical Co., Ltd. of Tainan City, Taiwan and CANDA NK-2, LLC of Waco, Texas infringed and/or will infringe ALIMTA®, U.S. Patent Nos. 5,344,932 ("the '932 patent") and 7,772,209 ("the '209 patent"; collectively, "the patents-in-suit"), which have been issued by the U.S. Patent Office.

ALIMTA, which is licensed to Lilly, is a chemotherapy agent used for the treatment of various types of cancer. ALIMTA is composed of the pharmaceutical chemical pemetrexed disodium. It is indicated, in combination with cisplatin, (a) for the treatment of patients with malignant pleural mesothelioma, or (b) for the initial treatment of locally advanced or metastatic nonsquamous non-small cell lung cancer. ALIMTA also is indicated as a single agent for the treatment of patients with locally advanced or metastatic nonsquamous non-small cell lung cancer after prior chemotherapy. Additionally, ALIMTA is indicated for maintenance treatment of patients with locally advanced or metastatic nonsquamous non-small cell lung cancer whose disease has not progressed after four cycles of platinum-based first-line chemotherapy. One or more claims of the '209 patent cover a method of administering pemetrexed disodium to a patient in need thereof that also involves administration of folic acid and vitamin B12. The '932 patent, titled "N-(pyrrolo(2,3-d)pyrimidin-3-ylacyl)-Glutamic Acid Derivatives," along with the '209 patent, have been listed in connection with ALIMTA in the FDA's publication Approved Drug Products with Therapeutic Equivalence Evaluations.

This Indiana patent infringement lawsuit arises out of the filing by Defendant Nang Kuang of an Abbreviated New Drug Application ("ANDA") with the U.S. Food and Drug Administration ("FDA") seeking approval to manufacture and sell generic versions of ALIMTA prior to the expiration of the '932 and '209 patents. Nang Kuang filed as a part of that ANDA a certification of the type described in Section 505(j)(2)(A)(vii)(IV) of the Food, Drug and Cosmetic Act, 21 U.S.C. § 55(j)(2)(A)(vii)(IV), with respect to the patents-in-suit, asserting that the claims of the patents-in-suit are invalid, unenforceable, and/or not infringed by the manufacture, use, offer for sale, or sale of Defendants' ANDA products.

In their complaint, filed by an Indiana patent lawyer, Lilly and Princeton state that Defendants intend to engage in the manufacture, use, offer for sale, sale, marketing, distribution, and/or importation of Defendants' ANDA products and the proposed labeling therefor immediately and imminently upon approval of the ANDA i.e., prior to the expiration of the patents-in-suit. Plaintiffs asserts that Defendants' actions constitute and/or will constitute infringement of the patents-in-suit, active inducement of infringement of the patents-in-suit, and contribution to the infringement by others of the patents-in-suit.

The complaint, filed by an Indiana patent lawyer, lists the following claims:

  • Count I: Infringement of U.S. Patent No. 5,344,932
  • Count II: Infringement of U.S. Patent No. 7,772,209

Lilly and Princeton ask the court for:

(a) A judgment that Defendants have infringed the '932 patent and/or will infringe and/or actively induce infringement of the '932 patent;

(b) A judgment ordering that the effective date of any FDA approval for Defendants to make, use, offer for sale, sell, market, distribute, or import Defendants' ANDA Products, or any product the use of which infringes the '932 patent, be not earlier than the expiration date of the '932 patent, inclusive of any extension(s) and additional period(s) of exclusivity;

(c) A preliminary and permanent injunction enjoining Defendants, and all persons acting in concert with Defendants, from making, using, selling, offering for sale, marketing, distributing, or importing Defendants' ANDA Products, or any product the use of which infringes the '932 patent, or the inducement of any of the foregoing, prior to the expiration date of the '932 patent, inclusive of any extension(s) and additional period(s) of exclusivity;

(d) A judgment declaring that making, using, selling, offering for sale, marketing, distributing, or importing of Defendants' ANDA Products, or any product the use of which infringes the '932 patent, prior to the expiration date of the '932 patent, infringes, will infringe and/or will actively induce infringement of the '932 patent;

(e) A judgment that Defendants have infringed the '209 patent and/or will infringe, actively induce infringement of, and/or contribute to infringement by others of the '209 patent;

(f) A judgment ordering that the effective date of any FDA approval for Defendants to make, use, offer for sale, sell, market, distribute, or import Defendants' ANDA Products, or any product the use of which infringes the '209 patent, be not earlier than the expiration date of the '209 patent, inclusive of any extension(s) and additional period(s) of exclusivity;

(g) A preliminary and permanent injunction enjoining Defendants, and all persons acting in concert with Defendants, from making, using, selling, offering for sale, marketing, distributing, or importing Defendants' ANDA Products, or any product the use of which infringes the '209 patent, or the inducement of or contribution to any of the foregoing, prior to the expiration date of the '209 patent, inclusive of any extension(s) and additional period(s) of exclusivity;

(h) A judgment declaring that making, using, selling, offering for sale, marketing, distributing, or importing of Defendants' ANDA Products, or any product the use of which infringes the '209 patent, prior to the expiration date of the '209 patent, infringes, will infringe, will actively induce infringement of, and/or will contribute to the infringement by others of the '209 patent;

(i) A declaration that this is an exceptional case and an award of attorneys' fees pursuant to 35 U.S.C. § 285; and

(j) An award of Plaintiffs' costs and expenses in the action.

Practice Tip #1: This summer, Lilly succeeded in defending the '209 method-of-use patent in before District Judge Tanya Walton Pratt in the Southern District of Indiana. The court found, inter alia, that the patent did not fail for "obviousness."

Practice Tip #2: Obviousness is a legal conclusion based on underlying factual findings. Such findings include: 1) the scope and content of the prior art; 2) the differences between the claims and the prior art; 3) the level of ordinary skill in the art; and 4) objective considerations of non-obviousness such as commercial success and satisfaction of a long-felt need. Moreover, it is insufficient that prior art merely includes separate references to the subject matter of a subsequent patent claim. Instead, obviousness requires the additional showing that a person of ordinary skill in the art of the subject matter would have combined those elements of the prior art.

Continue reading "Indiana Patent Litigation: Lilly Sues Alleging Infringement of ALIMTA" »

October 22, 2014

Indiana Patent Litigation: PHD Sues DE-STA-CO for Patent Infringement

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Fort Wayne, Indiana - Indiana patent attorneys for PHD, Inc. of Fort Wayne, Indiana filed an intellectual property complaint in the Northern District of Indiana alleging that DE-STA-CO of Auburn Hills, Michigan infringed its patent on the "Long Travel Gripper," Patent No. 7,490,881, which has been registered by the U.S. Patent Office.

Plaintiff asserts rights acquired via assignment to a patented product called "Long Travel Gripper," U.S. Patent No. 7,490,881 (the "'881 Patent"). On April 29, 2014, Defendant was notified that its product "RPR Gladiator Series Gripper" appeared to infringe the '881 Patent.

In this Indiana patent litigation, Defendant is accused of infringing the '881 Patent as well as inducing infringement by others. Plaintiff contends that the infringing activities have been willful and that this case is exceptional, entitling it to an award of attorneys' fees.

Plaintiff asks the court for a judgment of infringement; damages, including treble damages; a declaration that the case is exceptional and an award of attorneys' fees pursuant to such a finding; and injunctive relief.

Practice Tip: The U.S. Supreme Court expanded upon existing jurisprudence regarding "exceptional" patent lawsuits this year. In two related cases, it held that a trial court may as a matter of its discretion award attorneys' fees in cases of patent infringement litigation that it deems "exceptional." These Supreme Court rulings revisiting how "exceptional" is defined may benefit any company that is the target of a questionable patent infringement lawsuit, as trial judges will now have greater latitude to award attorneys' fees - including awarding attorneys' fees to prevailing defendants - in those cases in which they determine that the conduct of the losing party "stands out from others."

Continue reading "Indiana Patent Litigation: PHD Sues DE-STA-CO for Patent Infringement" »