Indiana Intellectual Property Law News

May 23, 2019

Indiana Court of Appeals issues Opinion in Neptune Generics, LLC vs. Eli Lilly & Company Case

Judges in the Indiana Court of Appeals issued their Opinion in the case of Neptune Generics, LLC, and Fresenius Kabi USA, LLC (collectively “Petitioners”) versus Eli Lilly and Company. The Patent Trial and Appeals Board (the “Board”) previously held in its inter partes review (“IPR”) that claims 1-22 of Eli Lilly’s U.S. Patent No. 7,772,209 (the “’209 Patent”) were not unpatentable for obviousness. The Court of Appeals held the Board did not err in its analysis, that substantial evidence supported underlying fact findings and therefore the Board’s decision was affirmed.

The ‘209 Patent “relates to administering folic acid and a methylmalonic acid (“MMA”) lowering agent, such as vitamin B12, before administering pemetrexed disodium, a chemotherapy agent, in order to reduce the toxic effects of a pemetrexed, an antifolate.” There were three petitions for IPR relating to the ‘209 Patent for obviousness over various patents, patent applications, and articles. In each IPR, the Board found that the claims were not unpatentable for obviousness.

According to the Opinion, the Board found that it was known that pretreatment with folic acid reduces the toxicity relating to the administration of an antifolate, but there was not a reason to pretreat with Vitamin B12 in addition to folic acid before administering pemetrexed for cancer treatment. Further, the FDA, along with others, were skeptical of the treatment that supported their decision for nonobviousness.

May 17, 2019

Indiana Copyright Litigation: Trade Design Studio Seeks Damages for Alleged Copyright Infringement and Conversion of Architectural Drawings

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Trade Design Studio LLC (“TDS”) of Indianapolis, Indiana filed suit in the Southern District of Indiana alleging that Defendants, 1824 Carrollton LLC of Fishers, Indiana, T.A.K.E 3 Investments LLC of Camby, Indiana, and Tena Allen of Camby, Indiana, infringed its rights in United States Copyright Registration No. VA 2-142-029. Plaintiff is seeking judgment, damages, reasonable attorney’s fees, and any other appropriate relief.

According to the complaint, TDS is a residential architectural design firm that has designed homes for clients primarily in Herron Morton Place, Fall Creek Place, and Kennedy King neighborhoods in downtown Indianapolis since 2006. TDS claims that no two of its homes are exactly alike. TDS alleges it drafted technical drawings (the “Technical Drawings”) for a new home to be built at 2134 N. New Jersey Street, Indianapolis, Indiana in 2017 (the “TDS Home”). According to TDS, the home was completed in April 2018 and sold for $700,000 in May 2018.

After the home sold, TDS applied for Certificates of Copyright Registration for the Technical Drawings, Registration No. VAu 1-350-598, and the Architectural Work, Registration No. VA 2-142-029. TDS claims they were informed of a home being built at 1824 Carrollton Avenue (the “Carrollton Home”) in the Kennedy King Neighborhood that was very similar to the TDS Home around February 28, 2019. Once TDS accessed and reviewed the construction permits and drawings for the Carrollton Home, it claims they were virtually identical to those for the TDS Home.

According to the publicly accessible information TDS found, it believes Tena Allen and T.A.K.E. 3 Investments applied for the construction permits and submitted the technical drawings for the Carrollton Home. Further, TDS believes 1824 Carrollton LLC is the current owner of the property for the Carrollton Home. TDS alleges it sent Defendants a cease and desist letter on March 28, 2019 and after a short suspension of construction to explore negotiations, Defendants resumed construction on or about April 8, 2019.

TDS is seeking damages for copyright infringement, conversion, and criminal conversion pursuant to the Indiana Crime Victims Recovery Act.

May 16, 2019

Indiana Court of Appeals issues Opinion in Heraeus Medical, LLC v. Zimmer Inc.

By Overhauser Law Offices, LLC

Judge Cale J. Bradford of the Indiana Court of Appeals issued the Opinion in the case of Heraeus Medical, LLC, Devin Childers, Robert Kolbe (“Kolbe”), James “Worth” Burns, Paul Cruz, and Kyle Kolbe (collectively “Appellants-Defendants”) versus Zimmer, Inc., d/b/a Zimmer Biomet, and Zimmer US, Inc. (collectively “Appellees-Plaintiffs”). The Appellants-Defendants appealed a preliminary injunction issued by the trial court in which Kolbe was ordered to abide by his non-compete and non-solicitation agreement with Zimmer and Heraeus Medical was ordered to not disclose or use confidential information received from Heraeus GmbH or employ or engage the individual Appellants-Defendants. The Indiana Court of Appeals affirmed in part, reversed in part, and remanded the case with further instructions.

Zimmer Surgical, a subsidiary of Zimmer, Inc. entered into a Distribution Agreement with Heraeus Medical GmbH in January 2012 pursuant to which Heraeus Medical GmbH granted to Zimmer Surgical an exclusive license to distribute, promote, market, and sell specific bone cements (“Palacos”) it manufactured. Zimmer has since allegedly developed its own line of bone cement. On January 3, 2018, within the final year of the initial term of the Distribution Agreement, Heraeus Medical GmbH elected to make the Distribution Agreement non-exclusive for the final year. Heraeus Medical GmbH had, by that point, set up a direct sales force through Heraeus Medical, LLC, which had hired several former Zimmer Biomet employees including the individual Appellants-Defendants in this case.

Appellees-Plaintiffs filed their complaint against the Appellants-Defendants on February 23, 2018 for “(1) breach of contract against the individual defendants; (2) tortious interference with contracts against Heraeus; and (3) and tortious interference with business relationships, civil conspiracy, and unfair competition against all defendants.” Preliminary injunctions to stop violations of the individual non-compete and non-solicitation agreements were also sought at that time.

May 15, 2019

Jury Awards Herff Jones Multi-Million Dollar Verdict Against Jostens for Interfering with Employment Contracts

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Herff Jones, based in Indianapolis, Indiana won a multimillion-dollar case against its largest competitor, Jostens Inc., headquartered in Minneapolis, Minnesota. Herff Jones also won significant judgments against John Wiggins and Chris Urnis, former employees of Herff Jones distributor, Brent Gilbert of GradPro Recognition Products in the same case.

Jostens began negotiating employment agreements with Wiggins and Urnis prior to their leaving GradPro, despite their having strict noncompete agreements with GradPro, according to the lawsuit. The lawsuit further claimed one of Jostens authorized representatives took at least five employees from GradPro in an effort to take away business from Herff Jones.

Jostens lost the suit as the jury found it conspired and stole confidential and trade secret information and interfered with Herff Jones’ employment contracts. The jury awarded nearly $1.9 million in compensatory damages against Jostens, Wiggins, and Urnis to Herff Jones, and another $580,000 to Brent Gilbert of GradPro. Punitive damages in the amounts of $650,000, $25,000, and $10,000 were also assessed against Jostens, Wiggins, and Urnis, respectively.

May 8, 2019

Indiana Copyright Litigation: Cision US, Inc. Sued for Copyright Infringement by Attorney Richard Bell

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorney Richard Bell of McCordsville, Indiana filed suit in the Southern District of Indiana alleging that Cision US, Inc. (“Cision”), conducts business in the district, and infringed his rights in United States Copyright No. VA0001785115, the “Indianapolis Photo”. Bell is seeking actual and statutory damages, costs, attorneys’ fees, and any other relief as is just and proper.

Bell, who has filed numerous copyright infringement lawsuits over the Indianapolis Photo, claims Cision published the Indianapolis Photo on its website without his permission beginning in or around 2018. The Complaint asserts Plaintiff’s claim that Cision took or downloaded the Indianapolis Photo without his permission prior to publishing the photo on its website. The Complaint further alleges Cision falsely represented that it owned the rights to publish the Indianapolis Photo by adding a copyright notice to the bottom of each page of its website.

Per the Complaint, Cision has not agreed to be enjoined from using the Indianapolis Photo. Plaintiff states Cision refuses to pay for the unauthorized use of the Indianapolis Photo and that it has allowed third parties to access its website and the Indianapolis Photo. As such, Bell is seeking damages for copyright infringement and vicarious liability for each copy downloaded by a third-party user.

May 7, 2019

New Northern District of Indiana Judge to be Sworn In

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – Former Attorney Holly Brady has been confirmed by the U.S. Senate to serve as judge in the Northern District of Indiana. Brady is only the second woman to serve as judge in the Northern District and the first judge to join the court in nine years. Brady will take the seat vacated in September 2017 by Judge Joseph Van Bokkelen.

Brady, a native Hoosier, received her undergraduate degree from Indiana University and went on to attend Valparaiso University School of Law. After graduating, Brady has worked in multiple Fort Wayne law firms in the fields of labor and employment law. Brady’s history of a strong federal practice made her a good candidate for the vacancy and she is expected to have a formal swearing-in ceremony in August.

May 6, 2019

Indiana Patent Litigation: Dr. Rick C. Sasso Seeks Royalties from Warsaw Orthopedic, Inc. and its Affiliates

By Overhauser Law Offices, LLC

Kosciusko County, Indiana – Attorneys for Plaintiff, Rick C. Sasso, M.D. (“Dr. Sasso”) of Carmel, Indiana, originally filed suit in the Kosciusko County Superior Court in Indiana alleging that Defendants, Warsaw Orthopedic, Inc., Medtronic, PLC, and Medtronic Sofamor Danek, Inc., have denied him and his accounting firm access to their sales ledger per two separate agreements. Dr. Sasso is seeking an injunction ordering Defendants to provide full access to its sales ledger to determine royalties owed to Dr. Sasso under two separate agreements. As of April 12, 2019, Defendants filed a Notice of Removal to remove the case to the U.S. District Court for the Northern District of Indiana.

Per the complaint, Dr. Sasso is a board-certified orthopedic surgeon specializing in the treatment of the spine. Dr. Sasso claims the Defendants, together, are top manufacturers for spine implants. It is claimed Dr. Sasso entered into two separate agreements with Sofamor Danek Holding, Inc., which was later acquired by Warsaw Orthopedic through a merger. The first alleged agreement, is the 1999 Screw Delivery System Agreement on November 18, 1999 (the “1999 Agreement”). The second alleged agreement is the 2001 Vertex Agreement, entered into on July 26, 2001 (the “2001 Agreement”). Dr. Sasso claims that these agreements have clauses that enable him to “inspect, examine, audit, and copy [Defendants’] records” relating to the agreements once per calendar year.

In August 2013, Dr. Sasso filed a different suit against the Defendants for unpaid royalties under both the 1999 and 2001 Agreements. Dr. Sasso was granted royalties in the amount of $79,794,721.00 for the 1999 Agreement and $32,657,548.00 for the 2001 Agreement, which has been appealed by Defendants. According to the complaint, the 1999 Agreement requires the Defendants to continue paying royalties until the expiration of U.S. Patent No. 6,287,313 and U.S. Patent No. 6,562,046, on or about November 23, 2019. Dr. Sasso also claims the 2001 Agreement requires Defendants to pay royalties to him so long as “the Medical Device is covered by a valid claim of an issued patent arising out of the Intellectual Property Rights.”

May 3, 2019

Patent Office Issues 244 Patents To Indiana Citizens in April 2019

By Overhauser Law Offices, LLC

Overhauser Law Offices, the publisher of this site, assists with US and foreign patent searches, patent applications and assists with enforcing patents via infringement litigation and licensing.

The U.S. Patent Office issued the following 244 patent registrations to persons and businesses in Indiana in April 2019, based on applications filed by Indiana patent attorneys:

	Patent No.	Title
1	D0847440	Blocking member for a door assembly of an animal enclosure
2	D0847342	Spinal implant
3	D0847341	Spinal implant
4	D0847306	Faucet handle
5	10,277,344	System and method for facilitation of a geographically relevant radio station and transmission of related content

May 2, 2019

192 Trademark Registrations Issued to Indiana Companies in April 2019

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 192 trademark registrations to persons and businesses in Indiana in April 2019 based on applications filed by Indiana trademark attorneys:

Registration No.	Word Mark
5734107	MOVE WITH ME
5735891	12 FLAVOR GUMMI BEARS
5734081	GUARDIAN
5735876	FLOOD INSURANCE SOLUTIONS
5733986	GEORGE REMUS
5733985	ROSSVILLE UNION

April 29, 2019

Indiana Copyright Litigation: Attorney Richard Bell Seeks Damages for Copyright Infringement From Marriott, LLC

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorney Richard Bell of McCordsville, Indiana filed suit in the Southern District of Indiana alleging that Marriott, LLC, who conducts business in the district, infringed his rights in United States Copyright No. VA0001785115, the “Indianapolis Photo”. Bell is seeking actual and statutory damages, costs, attorneys’ fees, and any other relief as is just and proper.

Bell claims the Indianapolis Photo is an original work that was registered with the U.S. Copyright Office on August 4, 2011. He further claims that because of his use of the Indianapolis Photo to advertise his photography business, it can be identified by the public as being created by Bell. Since the registration of the Indianapolis Photo, Bell has filed many lawsuits for copyright infringement.

According to the complaint, Marriott used the Indianapolis Photo on its website to draw or attract prospective customers. Bell claims he discovered Marriott’s use of the Indianapolis Photo in March 2018 and that the photo was visible on Marriott’s website on April 6, 2018. Bell is seeking damages for copyright infringement including vicarious liability damages for each downloaded copy of the Indianapolis Photo from Marriott’s website by third-party users.