Indiana Intellectual Property Law News

October 31, 2016

Indiana Patent Litigation: Lilly Sues Alleging Infringement of Testosterone Product

Indianapolis, Indiana – Patent lawyers for Plaintiffs Eli Lilly and Company of Indianapolis, Indiana, its subsidiary Eli Lilly Export S.A. of Geneva, Switzerland and Acrux DDS Pty Ltd of West Melbourne, Australia filed a lawsuit alleging patent infringement. This federal lawsuit, commenced in the Southern District of Indiana, lists two Defendants, Cipla Limited of Mumbai, India and its wholly owned subsidiary Cipla USA, Inc. of Miami, Florida.

The parties in this litigation are engaged in the development and sale of pharmaceuticals. At issue is Plaintiffs’ transdermal testosterone solution, which is marketed under the trade name “Axiron®.” Lilly holds New Drug Application No. 022504 for this drug, which was approved by the U.S. Food and Drug Administration (“FDA”).

Defendants submitted an Abbreviated New Drug Application (“ANDA”) to the FDA seeking approval to market a generic version of Lilly’s Axiron product. In this ANDA, Defendants certified to the FDA that they believed that the patents-in-suit were invalid, unenforceable and/or would not be infringed by the commercial manufacture, use or sale of the generic version of Axiron described in the ANDA.

According to Plaintiffs, the filing of this ANDA by Defendants constitutes patent infringement. Plaintiffs also contend that other threatened activities, such as commercial manufacture, importation and sale of a generic version of Axiron, would also infringe Plaintiffs’ patents.

Plaintiffs list three disputed patents in this lawsuit: U.S. Patent Nos. 8,435,944; 8,993,520 and 9,180,194. These patents have been issued by the U.S. Patent and Trademark Office. Indiana attorneys for Plaintiffs ask the court for relief with respect to the following claims of patent infringement:

• Count I: Direct Infringement of U.S. Patent No. 8,435,944
• Count II: Inducement To Infringe U.S. Patent No. 8,435,944
• Count III: Contributory Infringement of U.S. Patent No. 8,435,944
• Count IV: Direct Infringement of U.S. Patent No. 8,993,520
• Count V: Inducement To Infringe U.S. Patent No. 8,993,520
• Count VI: Contributory Infringement of U.S. Patent No. 8,993,520
• Count IV [sic]: Direct Infringement of U.S. Patent No. 9,180,194
• Count V [sic]: Inducement To Infringe U.S. Patent No. 9,180,194

• Count VI [sic]: Contributory Infringement of U.S. Patent No. 9,180,194

The complaint also lists three counts seeking declaratory judgment.

Plaintiffs aver that this case is “exceptional” and ask the court for an award of their costs, including attorneys’ fees, pursuant to 35 U.S.C. §§ 285 and 271(e)(4).

October 26, 2016

Indiana Trademark Litigation: AAA Sues AAA Automotive Parts

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Trademark attorneys for Plaintiff The American Automobile Association, Inc. (“AAA”) filed a trademark lawsuit in the Southern District of Indiana. Two Bloomington Defendants are named, AAA Automotive Parts and the company’s owner. Defendants also do business as AAA Automotive & Truck Parts, and d/b/a AAA Automotive Parts.

AAA, a not-for-profit corporation, offers “travel and automobile products and services (including automobile repair services at its AAA Car Care Centers and through AAA Approved automobile repair businesses), financial advice, insurance and warranty coverage, and discounts.”

Defendants own and run a website, TRIPLEAPARTS.COM, on which they advertise automobile-related goods and services. Defendants also have brick-and-mortar shops in Indianapolis and Griffith, Indiana as well as locations in Missouri and Florida.

In this Indiana trademark lawsuit, lawyers for AAA listed the following causes of action:

• Count I: Federal Trademark Infringement in Violation of Section 32 of the Lanham Act
• Count II: Federal False Designation of Origin and Unfair Competition in Violation of Section 43(a) of the Lanham Act
• Count III: Federal Trademark Dilution in Violation of Section 43(c) of the Lanham Act
• Count IV: Cybersquatting Under Section 43(d) of the Lanham Act
• Count V: Trademark Dilution Under Ind. Code § 24-2-1-13.5
• Count VI: Trademark Infringement Under Ind. Code § 24-2-1-13

• Count VII: Unfair Competition and Trademark Infringement Under Common Law

AAA, which claims ownership to over 100 trademarks, contends that the following trademarks are at issue in this lawsuit:

Reg. No. 829,265	AAA Mark, used in connection with a variety of automobile association services and emergency roadside services
Reg. No. 2,158,654	AAA & Design Mark, used in connection with a variety of automobile association services and emergency roadside services
Reg. No. 3,316,227	AAA & Design Mark, used in connection with “[i]ndicating membership in a(n) automobile membership club”
Reg. No. 1,168,790	TRIPLE A Mark, used in connection with a variety of automobile association services
Reg. No. 3,046,904	AAA Mark, used in connection with repair services
Reg. No. 3,046,905	AAA & Design Mark, used in connection with repair services
Reg. No. 3,102,319	AAA & Design Mark, used in connection with vehicle parts
Reg. No. 5,036,379	AAA Mark & Design, used in connection with a variety of automobile association services and emergency roadside services
Reg. No. 1,449,079	AAA APPROVED AUTO REPAIR & Design Mark, used in connection with automobile repair services
Reg. No. 3,604,164	AAA TOTAL REPAIR CARE Mark, used in connection with auto diagnosis and repair services

AAA seeks damages and asks that those damages be trebled pursuant to 15 U.S.C. § 1117 and Indiana law. It also seeks equitable relief, costs and attorneys’ fees.

October 21, 2016

Indiana Intellectual Property Litigation: Defendant in California Patent Lawsuit Sues Plaintiff in Indiana Court Alleging Unfair Competition

By Overhauser Law Offices, LLC

South Bend, Indiana – Patent lawyers for Plaintiff Swagway, LLC of South Bend, Indiana sued Defendants Hangzhou Chic Intelligent Technology Co., Ltd. (“Chic”) of Hangzhou, People’s Republic of China, Jansco Marketing, Inc. of Pembroke, Massachusetts and COKeM International, Ltd. of Shakopee, Minnesota.

Swagway and Chic both sell self-balancing two-wheeled boards, also known as “hoverboards,” in the U.S. market. The two companies had an intellectual property dispute, with Chic alleging that Swagway infringed two of its patents. This dispute allegedly included letters sent by Chic that appeared to threaten Swagway’s business partners with litigation if they sold Swagway products that Chic alleged were infringing. Swagway also contends that Chic delayed Swagway’s goods by falsely alleging infringement to Chinese customs officials. It also states that Chic later issued a press release falsely stating that Swagway’s goods had been seized as infringing. When the dispute persisted, Chic sued Swagway in the Northern District of California on allegations that Swagway had infringed U.S. Patent No. 9,376,155 and U.S. Design Patent No. D737,723.

Swagway responded in part by filing a second federal lawsuit in the Northern District of Indiana. In its Indiana complaint, it accuses Chic and its agents, including Jansco and COKeM, of having made “numerous false and misleading statements” to Swagway’s retailers and customers regarding Swagway, its hoverboards, as well as the patent rights that Chic alleged in the California litigation. Plaintiff contends that “Defendants made these statements for the sole purpose of causing harm to Swagway’s business and preventing fair competition.” Swagway also contends that Chic withheld material information from the U.S. Patent and Trademark Office and that, consequently, the registration of several patents was improper.

In its Indiana lawsuit, patent attorneys for Plaintiff assert the following claims:

• Count I: Unfair Competition under the Lanham Act
• Count II: Unfair Competition under Indiana State Law
• Count III: Tortious Interference with Business Relationships

• Count IV: Defamation

Plaintiff has requested damages of no less than $30 million and also includes a prayer for punitive damages. Plaintiff further seeks equitable relief as well as reimbursement of costs and attorneys’ fees.

October 17, 2016

Indiana Copyright Litigation: Two Lawsuits Allege Illegal Sharing of Movie via Internet

By Overhauser Law Offices, LLC

Indianapolis, Indiana – A copyright lawyer for Plaintiff ME2 Productions, Inc. of Carson City, Nevada filed two new lawsuits in Indiana federal court alleging copyright infringement.

As with two prior Indiana lawsuits, filed by Plaintiff’s copyright lawyer last week in the Northern District of Indiana, these complaints allege infringement by multiple unknown “Doe” Defendants. Specifically, these lawsuits assert that a “screener copy” of the movie “Mechanic: Resurrection” was leaked and distributed illegally using BitTorrent, a file-sharing protocol. These latest lawsuits were filed in the Southern District of Indiana,

Defendants in each of the two lawsuits have been sued as a group, as Plaintiff contends that the Doe Defendants participated “in a collective and interdependent manner with other Defendants via the Internet for the unlawful purpose of reproducing, exchanging, and distributing copyrighted material” that was unique to their BitTorrent swarm.

The movie, which stars Jason Statham, Jessica Alba and Tommy Lee Jones, has been registered with the U.S. Copyright Office under Registration No. PA-1-998-057.

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

October 14, 2016

Indiana Copyright Litigation: Bell Alleges Infringement by Carmel Private Equity Firm

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Copyright lawyer and professional photographer Richard Bell of McCordsville, Indiana filed the latest in a string of lawsuits alleging infringement of a copyrighted photo of the Indianapolis skyline.

This lawsuit, filed by Bell on his own behalf in the Southern District of Indiana, lists Honey Creek Capital, LLC of Carmel, Indiana as Defendant. Bell asserts that Honey Creek infringed a copyrighted work titled “Indianapolis Nighttime Photo” by publishing the photo on Honey Creek’s website without having purchased a license. The photo has been registered with the U.S. Copyright Office under Registration No. VA0001785115.

Bell asks the court for the maximum statutory damages allowable, contending that Honey Creek is willfully infringing “with oppression, fraud, and malice.” In addition to damages, Bell seeks injunctive relief, costs and attorneys’ fees.

Practice Tip: Bell has filed many lawsuits on his own behalf asserting copyright infringement in Indiana federal courts. See:

• Indianapolis Real Estate Agent Sued for Infringing Copyright of Photo

• Limousine Service Sued for Copyright Infringement
• Bell’s Copyright Litigation Expands to Include IU, Purdue and Others
• Copyright Attorney Shifts to Alleging Infringement of Different Photo
• Attorney/Plaintiff Accuses Wisconsin Analytics Firm of Copyright Infringement
• Bell Names Aramark in Latest Copyright Infringement Lawsuit
• Attorney/Photographer Sues North Carolina Hotel Operator
• Attorney/Plaintiff Bell Files Three New Lawsuits Over Photo of Indianapolis Skyline
• Eight New Infringement Lawsuits Filed by Attorney/Plaintiff
• Attorney/Photographer Files Two New Infringement Lawsuits
• Lawsuit by Frequent Copyright Litigant Dismissed for Lack of Jurisdiction
• District Court Terminates Copyright Suit Over Photo; Plaintiff Appeals
• Remaining Copyright Defendants in Bell Lawsuit to be Dismissed
• Attorney/Photographer Sues Georgia Real Estate Company for Infringing Copyrighted Photo
• Sovereign Immunity May Take a Toll on Bell’s Latest Copyright Lawsuit
• Appellate Court Dismisses Copyright Appeal as Premature
• Bell Rings in the Holiday Weekend with a New Copyright Lawsuit
• Bell Files New Copyright Infringement Lawsuit
• Bell Sues Georgia-Based 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

October 13, 2016

Supreme Court Hears Argument on Profit Awards for Design Patent Infringement

By Overhauser Law Offices, LLC

The Supreme Court on October 11, 2016, heard oral argument on whether an award of profits for design patent infringement of Apple’s iPhone should be limited to those profits attributable components bearing the claimed design features or should include profits from the entire iPhone. Samsung Electronics Co. Ltd. v. Apple, Inc., U.S., No. 15-777, oral argument 10/11/2016. The design patent statute provides for liability “to the extent of the [infringer’s] total profit” for applying the patented design “to any article of manufacture.” The parties agreed that the “article of manufacture” may be a component rather than the entire product, and agreed with the government’s proposed factors for determining the profit attributable to the infringing component. Apple maintained, however, that there is no basis for overturning the jury award of nearly $400 million since in this case Samsung never identified any article of manufacture other than the phones themselves.

October 12, 2016

Indiana Copyright Litigation: Advance Copy of Movie Leaked, Shared via BitTorrent

By Overhauser Law Offices, LLC

Northern District of Indiana – A trial attorney for Plaintiff ME2 Productions, Inc. of Carson City, Nevada filed two lawsuits in the Northern District of Indiana alleging copyright infringement of the action thriller “Mechanic: Resurrection.” One lawsuit was filed with the district court in Hammond while the other was filed in Fort Wayne.

Plaintiff contends that a “screener copy” of the movie was leaked and subsequently distributed illegally using BitTorrent, a file-sharing protocol. In each of the lawsuits, multiple unknown “Doe” Defendants are listed. They are accused of committing copyright infringement by participating “in a collective and interdependent manner with other Defendants via the Internet for the unlawful purpose of reproducing, exchanging, and distributing copyrighted material.” Plaintiff states that it has traced these Defendants to Indiana through the use of geolocation technology, which was used to determine the Internet Protocol (“IP”) addresses of each Defendant.

The movie, which is the sequel to the 2011 action film “Resurrection,” stars Jason Statham, Jessica Alba and Tommy Lee Jones. It has been registered with the U.S. Copyright Office under Registration No. PA-1-998-057.

Plaintiff seeks injunctive relief along with damages, costs and attorneys’ fees.

October 10, 2016

Indiana Patent Litigation: Rotating Curling Iron at Center of Patent Infringement Lawsuit

By Overhauser Law Offices, LLC

South Bend, Indiana – Patent lawyers for Plaintiff The Beachwaver Co. of Libertyville, Illinois sued in Indiana federal court on allegations of patent infringement.

Defendant Farouk Systems, Inc. of Houston, Texas has been accused of infringing U.S. Patent No. 9,398,796 (“the ‘796 patent”), which covers claims pertaining to a rotating curling iron. This patent, titled “Hair Styling Device,” was issued by the U.S. Patent and Trademark Office on July 26, 2016.

Plaintiff contends that “Defendant has committed acts of patent infringement, including making, offering for sale, and selling infringing products” and lists the following causes of action in this lawsuit, filed Friday in the Northern District of Indiana:

• Count I: Direct Infringement of the ‘796 Patent

• Count II: Induced Infringement of the ‘796 Patent

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

October 6, 2016

176 Trademark Registrations Issued to Indiana Companies in September 2016

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 176 trademark registrations to persons and businesses in Indiana in September 2016 based on applications filed by Indiana trademark attorneys:

Registration No.	Word Mark	Click To View
5049906	SWEETWATER	TSDR
5049878	100TH RUNNING	TSDR
5051567	THE PRODUCE CHALLENGE	TSDR
5049449	FASTFX	TSDR
5049308		TSDR
5049297	VAPORSWEEP	TSDR

October 4, 2016

Patent Office Issues 165 Patents To Indiana Citizens in September 2016

By Overhauser Law Offices, LLC

The U.S. Patent Office issued the following 165 patent registrations to persons and businesses in Indiana in September 2016, based on applications filed by Indiana patent attorneys:

	Patent No.	Title
1	D767,730	Faucet handle
2	D767,727	Faucet
3	D767,725	Faucet
4	9,455,561	Movable wall panel system with electrical connections
5	9,454,888	Advanced battery early warning and monitoring system
6	9,454,745	System and method of tracking vehicles within a parking lot using RFID tags
7	9,453,754	Multi-conductor water in fuel sensor for fill rate detection
8	9,453,468	System and method for estimating turbocharger operating speed
9	9,453,455	System for regulating coolant flow in an engine
10	9,453,446	Constant mass flow injection system