Indiana Intellectual Property Law News

August 17, 2015

Introduction to Criminal Copyright Infringement – Third Element: Willfulness

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

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

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

August 14, 2015

Introduction to Criminal Copyright Infringement – Second Element: Infringement

By Overhauser Law Offices, LLC

The second element of a criminal prosecution for copyright infringement requires that the government prove that the defendant infringed upon the holder’s rights in its copyrighted intellectual property. Although the term “infringement” itself is not specifically defined in the copyright statute, 17 U.S.C. § 501(a) provides that: “[a]nyone who violates any of the exclusive rights of the copyright owner as provided by [17 U.S.C. §§ 106 to 118] . . . is an infringer of the copyright.” Thus, the concept of infringement is defined by reference to the exclusive rights conferred on a copyright owner by 17 U.S.C. § 106. Those exclusive rights include the right to display or perform the work publicly, as set forth in 17 U.S.C. § 106(4)-(5), along with the right to reproduce and distribute copies of the work, as set forth in 17 U.S.C. § 106(1) and (3). The unauthorized exercise of these rights will constitute an act of infringement and will give rise to a civil infringement claim by the copyright holder and perhaps prosecution by the government.

Generally, infringement is established by evidence of copying. However, because copying often cannot be directly attributed to the defendant, copying can be established indirectly through evidence that the defendant had access to the original copyrighted work, and that the defendant’s work is substantially similar to it.

With regard to prosecution for alleged infringement of copyrighted computer programs, a court must also decide separately whether or not the copies at issue were lawfully made under 17 U.S.C. § 117, which authorizes such duplication in certain circumstances. Thus, unlike copies of other types of copyrighted works, copies of computer programs are not automatically presumed to be unauthorized.

August 11, 2015

Indiana Copyright Litigation: Sovereign Immunity May Take a Toll on Bell’s Latest Copyright Lawsuit

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Richard N. Bell of McCordsville, Indiana, who is both an Indiana copyright attorney and a professional photographer, filed a lawsuit alleging copyright infringement in the Southern District of Indiana. Bell claims that Indiana Procurement Technical Assistance Center of Indianapolis, Indiana infringed his copyrighted “Indianapolis Skyline” photo, U.S. Copyright Registration No. VA0001785115, which has been registered with the U.S. Copyright Office.

In 2000, Plaintiff Bell photographed the downtown Indianapolis skyline. Indiana Procurement Technical Assistance Center, a governmental unit of the state of Indiana, is accused of creating “a website to promote and advertise its own business” and displaying Bell’s copyrighted photo on that website. Bell further claims that this government entity “willfully and recklessly falsely claimed that it owned the copyrights of all images and photos” contained on its website, http://www.indianaptac.com/, including Bell’s photo of Indianapolis.

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 lawyer 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 Defendants [sic]” 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 #1:

Bell will have to contend with the doctrine of sovereign immunity as an initial hurdle to proceeding with this copyright litigation. Sovereign immunity, as a general rule, bars lawsuits such as this one against states. Sovereign immunity may be waived by a state for a particular type of lawsuit. The federal government may also abrogate states’ sovereign immunity with respect to certain types of claims.

In 1990, Congress passed the Copyright Remedy Clarification Act. Under 17 U.S.C. § 511(a), “[a]ny State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the… doctrine of sovereign immunity, from suit in Federal court…for a violation of any of the exclusive rights of a copyright owner….”

On the surface, this language appears to constitute an abrogation of states’ sovereign immunity regarding copyright infringement. However, the U.S. Supreme Court has held that “Congress may not abrogate state sovereign immunity pursuant to its Article I powers.” Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S 627, 636 (1999).

However, it appears that the Copyright Remedy Clarification Act has attempted to do just that. According to at least one recent decision out of a federal district court in Lexington, Kentucky, Article I is indeed what Congress relied upon to authorize the passage of the Act purporting to abrogate states’ rights with respect to copyright infringement lawsuits. This, the court held, rendered the attempted abrogation invalid. That litigation was consequently dismissed by the court as barred by the doctrine of sovereign immunity.

Practice Tip #2: Richard Bell has sued hundreds of defendants for copyright infringement in Indiana’s federal courts. Previous blog posts regarding his litigation include:

• 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-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

August 10, 2015

Indiana Patent Litigation: Lilly Files New Lawsuit Alleging Patent Infringement of Alimta

By Overhauser Law Offices, LLC

Indianapolis, Indiana – An Indiana patent attorney for Eli Lilly and Company of Indianapolis,

Indiana, in conjunction with Washington, D.C. co-counsel, sued for patent infringement in the Southern District of Indiana. Lilly claims that Emcure Pharmaceuticals Ltd. of Pune, India; Heritage Pharma Labs, Inc. of East Brunswick, New Jersey; and Heritage Pharmaceuticals, Inc. of Eatontown, New Jersey, will infringe and/or have infringed Lilly’s patented “Novel Antifolate Combination Therapies,” U.S. Patent Number 7,772,209 (the “‘209 patent”), which has been issued by the U.S. Patent Office.

Plaintiff Lilly is in the business of, among other things, the manufacture and sale of various pharmaceuticals. Emcure Pharmaceuticals Ltd. is a generic pharmaceutical company engaged in developing, manufacturing and marketing a broad range of pharmaceutical products. Heritage Labs is believed to perform functions relating to Emcure’s active pharmaceutical ingredient as well as formulation research and development. Heritage Pharmaceuticals is thought to be engaged in the acquisition, licensing, development, marketing, sale, and distribution of generic pharmaceutical products for the U.S. prescription drug market on behalf of Emcure.

Alimta®, which is licensed to Lilly, is a chemotherapy agent used for the treatment of various types of cancer. The drug 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 is also indicated as a single-agent treatment for patients with locally advanced or metastatic nonsquamous non-small cell lung cancer after prior chemotherapy. Additionally, Alimta is used 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.

This Indiana lawsuit for patent infringement, submitted to the court by an Indiana patent lawyer, was triggered by the filing by defendant Emcure Pharmaceuticals of an Abbreviated New Drug Application (“ANDA”) with the U.S. Food and Drug Administration. In that ANDA, Emcure Pharmaceuticals seeks approval to manufacture and sell its pemetrexed for injection, 500 mg/vial product prior to the expiration of the ‘209 patent.

This patent litigation asserts a single count: infringement of U.S. Patent No. 7,772,209. Lilly asks for a judgment that Emcure has infringed the ‘209 patent and/or will infringe, actively induce infringement of, and/or contribute to infringement by others of the ‘209 patent; a judgment that use of the intellectual property currently covered by the ‘209 patent shall be protected until its expiration date; injunctive relief; attorneys’ fees and expenses; as well as other relief.

August 7, 2015

Introduction to Criminal Copyright Infringement – First Element: Existence of a Valid Copyright

By Overhauser Law Offices, LLC

The first element of a criminal prosecution for copyright infringement under 17 U.S.C. § 506(a) requires proof that the copyright at issue is a valid copyright. This may be established by demonstrating that the formal requirements of copyright registration have been satisfied. Although registration of a copyrighted work is not necessary to obtain copyright protection, it is usually required before prosecuting a copyright defendant in criminal court.

Registration of a copyright is typically proven by obtaining a certificate of registration from the Register of Copyrights. Under 17 U.S.C. § 410(c), a certificate of registration “made before or within five years after the first publication of the work shall constitute prima facie evidence of the validity of the copyright. . . .” If the defendant contests the validity of the copyright at issue as a defense in a criminal prosecution, the government would need to make an independent evidentiary showing that the copyright is valid. This would involve showing that the copyright was not obtained by fraud and the registration certificate is genuine.

August 6, 2015

Indiana Patent Litigation: Lilly Asks Indiana Court to Rule That It Has Not Infringed Patent

By Overhauser Law Offices, LLC

Indianapolis, Indiana – An Indiana patent attorney for Eli Lilly and Company of Indianapolis, Indiana filed a patent-related lawsuit against Uropep Biotech GbR of Garbsen, Germany in the Southern District of Indiana.

Plaintiff Lilly is in the business of, among other things, the manufacture and sale of various pharmaceuticals including a drug trademarked as Cialis®. At issue in this intellectual property lawsuit is U.S. Patent No. 8,791,124, entitled “Use of Phosphordiesterase Inhibitors in the Treatment of Prostatic Diseases” (“the ‘124 patent”), which has been issued by the U.S. Patent Office.

Lilly states that the ‘124 patent was issued to Defendant Uropep Biotech. Lilly further states in this Indiana lawsuit that an entity related to Uropep Biotech, Erfindergemeinschaft UroPep GbR, sued Lilly last month in the Eastern District of Texas asserting that Lilly had infringed the ‘124 patent by manufacturing and selling Cialis.

Lilly contends that Erfindergemeinschaft does not own the patent-in-suit and that, consequently, the Texas lawsuit was improper. It further asserts that the Texas lawsuit provides evidence of an actual and justiciable controversy between Lilly and Uropep Biotech sufficient to warrant this instant Indiana lawsuit wherein the Indiana patent lawyer for Lilly asks the court for declaratory relief adjudging that it has not infringed the ‘124 patent. Lilly also asks the court for a declaration that the ‘124 patent is invalid as well as attorney’s fees and costs.

August 4, 2015

167 Trademark Registrations Issued to Indiana Companies in July 2015

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 167 trademark registrations to persons and businesses in Indiana in July 2015 based on applications filed by Indiana trademark attorneys:

Registration No.	Word Mark	Click To View
4773612	LIFESTYLE INNOVATIONS	VIEW
4783708	PREMIUM PLANES	VIEW
4781983	LIFELINE DATA CENTERS	VIEW
4781870	TELESCOOP	VIEW
4781696	UPGRADE YOUR BUNS	VIEW
4781694	TAILGATE INVASION	VIEW
4781667	ULTIKIT	VIEW
4781613	T3	VIEW
4781399	TELESTIK	VIEW
4781150	INTELLIGENT COACHING FOR CYCLISTS	VIEW
4781009	2:5 APPAREL	VIEW
4783518	BY THE CUP	VIEW
4783478	SLIDEZILLA	VIEW
4783477	SLIDEZILLA	VIEW
4783476	MORRYDE	VIEW
4783474	MORRYDE	VIEW
4780619	ALLIED MOBILEFI THE TOTAL SOLUTION	VIEW
4783445	STREETCLOUD	VIEW

August 3, 2015

Patent Office Issues 143 Patents To Indiana Citizens in July 2015

By Overhauser Law Offices, LLC

The U.S. Patent Office issued the following 143 patent registrations to persons and businesses in Indiana in July 2015, based on applications filed by Indiana patent attorneys:

PATENT NO.		TITLE
D735,327		Transitional handle
D735,298		Faucet
D735,293		Filter element
D735,287		Golf green divot repair tool
D735,055		Multi-pocket hotdog package
D735,049		Container
D735,015		Pull
D735,014		Wave lever
9,093,190		Synthesis of multinary chalcogenide nanoparticles comprising Cu, Zn, Sn, S, and Se
9,092,553		Method and system for calculating daily weighted averages of glucose measurements (or derived quantities) with time based-weights

July 31, 2015

Criminal Copyright Infringement – 17 U.S.C. § 506(a) and 18 U.S.C. § 2319

By Overhauser Law Offices, LLC

The principal criminal statute protecting copyrighted works is 17 U.S.C. § 506(a), which provides that “[a]ny person who infringes a copyright willfully and for purposes of commercial advantage or private financial gain” shall be punished as provided in 18 U.S.C. § 2319. Section 2319 provides, in pertinent part, that a 5-year felony shall apply if the offense “consists of the reproduction or distribution, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, with a retail value of more than $2,500.” 18 U.S.C. § 2319(b)(1).

The 1992 amendments to section 2319 have made it possible to pursue felony-level sanctions for violations relating to all types of copyrighted works, including computer software and other works written, stored or transmitted in a digital format, if the other elements of the statute are satisfied. Felony penalties attach only to violations of a victim’s rights of reproduction or distribution in the quantity stated. A misdemeanor shall apply if the defendant does not meet the numerical and monetary thresholds, or if the defendant is involved in the infringement of the other rights bestowed upon the copyright holder, including the right to prepare derivative works, or the right to publicly perform a copyrighted work.

There are four essential elements to a charge of criminal copyright infringement: (1) that a valid copyright; (2) was infringed by the defendant; (3) willfully; and (4) for purposes of commercial advantage or private financial gain. Attempts to infringe are prohibited to the same extent as the completed act. Conspiracies to violate the Copyright Act can be prosecuted under 18 U.S.C. § 371. A minority of courts also require that the government prove the absence of a first sale, and refer to this as a fifth element of a section 506(a) offense. However, the majority position is that the absence of a first sale is an affirmative defense.

July 30, 2015

Copyright Law Introduction – Federal Law Preempts State Law

By Overhauser Law Offices, LLC

Historically, copyright protection had been provided through a dual system under which the federal government, by statute, provided limited monopolies for intellectual property concurrently with state statutory and common laws that established roughly equivalent protections. In 1976, Congress fundamentally changed this system by introducing a single, preemptive federal statutory scheme. The federal preemption provision, codified at 17 U.S.C. § 301(a), states that:

On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.

As stated in the legislative history, “[a]s long as a work fits within one of the general subject matter categories [of federal statutory copyrights], the bill prevents the States from protecting it even if it fails to achieve federal statutory copyright because it is too minimal or lacking in originality to qualify, or because it has fallen into the public domain.” H.R. Rep. No. 1476, 94th Cong., 2d Sess. 51, 131 (1976).