Indiana Intellectual Property Law News

July 17, 2018

Indiana Attorney Nominated to Fill Vacancy in the Northern District of Indiana

South Bend, Indiana – Damon R. Leichty, a partner of Barnes & Thornburg LLC has been nominated to serve as a judge in the United States District Court for the Northern District of Indiana. The vacancy to be filled was previously held by Judge Robert L. Miller, Jr. Leichty is the fourth Indiana attorney to be nominated by President Trump to fill vacancies in both Indiana’s Northern and Southern District Courts.

Leichty graduated from Indiana University Maurer School of Law and went on to serve as a law clerk for Miller for two years. He also served on the Federal Local Rules Advisory Committee for the Northern District of Indiana. During his career as a private practice attorney, he has represented clients in complex civil litigation throughout the United States. Leichty also counsels manufacturers on product liability, contracts warranties, and various product development and marketing strategies.

July 16, 2018

Indiana Copyright Litigation: Lafayette Based Company Sues California College for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, National Federation of Professional Trainers, Inc. (“NFPT”) of Lafayette, Indiana, filed suit in the Northern District of Indiana alleging that Defendant, Carrington College, Inc. (“Carrington”) of Sacramento, California, infringed its rights in United States Copyright Registration No. TX 8-515-798 (“NFPT 0241 Exam”). Plaintiff further alleges misappropriation of trade secrets, breach of contract, and fraud. Plaintiff is seeking damages, profits received from unauthorized copying and distribution of the copyrighted work, attorney’s fees, costs, and injunctive relief.

NFPT creates and administers examinations for the certification of personal trainers. Their certification programs have been accredited by the National Commission for Certifying Agencies since 2005. Carrington has utilized NFPT’s examinations and educational materials as a part of its Physical Therapy Technology Program. At the end of the course, students were able to sit for the NFPT certification exam for the opportunity to become a certified personal trainer upon obtaining a “passing” score.

Carrington administered an NFPT examination December 10, 2015 via their proctor, Mr. Phillip Schauer (“Schauer”). As proctor, Schauer had to sign a confidential disclosure agreement, which included maintaining the confidentiality of the exams and not duplicating any of the testing materials. The December 10, 2015 exam produced extremely abnormal results for the students’ test scores. Of the twenty-six candidates, fifteen had identical or similar response strings while the remaining candidates response strings differed by a maximum of four responses out of 120. All of the candidates obtained a “passing” score. Due to the abnormalities in the results, NFPT voided the results and required all candidates to retake the examination with new questions on August 26, 2016. Only six candidates chose to retake the exam and of those, only two obtained a passing score.

July 12, 2018

Indiana Copyright Litigation: Indiana Company Sued for Copyright Infringement for Unauthorized Reproduction and Use of Photograph Online

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, FOTOHAUS, LLC (“Fotohaus”) of Tallahassee, Florida filed suit in the Southern District of Indiana alleging that Defendant, OFS BRANDS, INC (“OFS”) of Huntingburg, Indiana infringed its rights in United States Copyright Registration No. VA 1-832-736 photograph titled “Light Collector” (“Photograph”). Plaintiff is seeking statutory damages, actual damages, Plaintiff’s costs, and attorneys’ fees.

The Photograph in question was first captured by Daniel Foster, Manager of Fotohaus, in Shanghai, China on July 1, 2010. Foster posted the Photograph to his Flickr account on July 13, 2010 and later registered the Photograph with the United States Copyright Office on July 17, 2012. Fotohaus was assigned the copyright to the Photograph on March 8, 2017. On or about June 2, 2016, OFS copied the Photograph and posted it to their commercial website accompanying a post advertising the design of a product they offered. Defendant also posted a copy of the Photograph on their Twitter page on June 6, 2016.

Fotohaus mailed their first letter identifying the infringement of the Photograph to OFS on September 5, 2017 demanding among other things that OFS remove the infringing material. At least ten communications between the Plaintiff and Defendant occurred between October 17, 2017 and February 19, 2018. The offending Twitter post was not removed by OFS until February 19, 2018. Plaintiff claims the Defendant not only violated their exclusive rights of reproduction and distribution, but the act of infringement was willful, intentional, and without regard to the rights of the Plaintiff. For this, Plaintiff is requesting a declaration that Defendant’s unauthorized conduct violated Plaintiff’s rights under the Federal Copyright Act, maximum allowable statutory damages, and actual damages.

July 11, 2018

Indiana Trademark Litigation: Indiana Based Moving Company Sues Florida Company for Trademark Infringement and Cybersquatting

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – Attorneys for Plaintiff, North American Van Lines, Inc. (“NAVL”) of Fort Wayne, Indiana filed suit in the Northern District of Indiana alleging that Defendant, North America Moving & Storage, Inc. of Miami Beach, Florida infringed its rights in United States Trademark Registration No. 917,431 for the mark “NORTHAMERICAN”. Plaintiff is seeking damages, exemplary damages, punitive damages, attorney’s fees, pre-judgment and post-judgment interest.

Counts one and two of the Plaintiff’s Complaint allege Federal Trademark Infringement and Federal Unfair Competition, both under the Lanham Act. Plaintiffs allege that the Defendant’s use of “NORTH AMERICA” and “NORTH AMERICA MOVING SYSTEMS” (“Infringing Marks”) has caused and will continue to cause confusion, deception, and mistake by giving the impression that the Defendant’s services originate from the Plaintiff or are associated with the Plaintiff. Further, Plaintiffs claim there has been actual consumer confusion as to the source of transportation services sold and advertised by the Defendant. NAVL also asserts that Defendant has taken part in multiple deceptive acts including making false representations, false descriptions, and false designations of origin of its services, providing for unfair competition.

Count three claims that Defendant registered and is using the northamericamoving.com domain name in bad faith under the Anticybersquatting Consumer Protection Act. NAVL alleges that Defendant is using the name without their permission and that Defendant’s intent in registering and using the domain name was and is to divert consumers from NAVL’s own websites. Count four of the Complaint alleges Indiana Trademark Infringement for Defendant’s use of a reproduction, colorable imitation, or copy of NAVL’s marks in connection with the sale, or offer of, distribution, and advertising of goods and services. Finally, Count five alleges Common Law Unfair Competition for consumer confusion and deception by Defendant’s use of the Infringing Marks.

July 6, 2018

Indiana Patent Litigation: Patent Infringement for a System for Transmitting Video Images over a Computer Network to a Remote Receiver Alleged in New Lawsuit

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Secure Cam, LLC of Sheridan, Wyoming originally filed suit in the Northern District of California alleging that Defendant, Project Nursery, LLC of San Francisco, California infringed its rights in United States Patent No. 7,257,158, (“the ‘158 Patent”) for “System for Transmitting Video Images over a Computer Network to a Remote Receiver”. As of June 21, 2018 this case has been transferred to the Southern District of Indiana. Plaintiff is seeking damages, costs, expenses, pre-judgment and post-judgment interest.

Plaintiffs allege that the Defendant’s face recognition readers and license plate recognition cameras that they manufacture, import into the United States, or offer for sale, and/or sell infringe at least Claim 12 of the ‘158 Patent. Other products alleged to infringe the ‘158 Patent include: Project Nursery 5” HD Dual Connect Wi-Fi Baby Monitor System, Project Nursery 4.3 Baby Monitor System with 2 Digital Zoom Cameras, Project Nursery Video Baby Monitor System with Digital Zoom Camera, Project Nursery 5” High Definition Baby Monitor System with 1.5” Mini Monitor, Project Nursery 4.3” Baby Monitor System with 1.5” Mini Monitor, and Project Nursery 4.3” Baby Monitor System. In the Complaint, plaintiffs point out seven separate elements included in the allegedly infringing products that are all elements in Claim 12 of the ‘158 Patent.

July 5, 2018

Indiana Patent Litigation: U.S. District Court Rules in Favor of Eli Lilly in Alitma Patent Infringement Case

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Eli Lilly and Company of Indianapolis, Indiana filed suit in the Southern District of Indiana alleging that Defendants, Dr. Reddy’s Laboratories, LTD. of Hyderabad, Telagana, India, and Dr. Reddy’s Laboratories, Inc,. a New Jersey corporation, infringed its rights in U.S. Patent No. 7,772,209 (“the ‘209 Patent”).

The ‘209 Patent at issue here is a method patent for administering pemetrexed disodium, a chemotherapy drug, with vitamins, the combination of which is marketed as ALITMA® by Lilly. This invention helps to solve the toxicity issue in chemotherapy patients being treated with pemetrexed. The particular regimen of vitamin and folic acid are important for the pretreatment of these patients. As of December 2015, Dr. Reddy’s informed Lilly that it had submitted a FDA New Drug Application for a product that would be marketed as a competing product to ALITMA®.

The first issue the Court had to decide was whether Lilly was barred from asserting the doctrine of equivalents under prosecution history estoppel. The Court held that Lilly had not surrendered the equivalent in question because their decision to use the choice pemetrexed salt was tangential to the reasons for the amendment. The choice to narrow was simply to overcome a rejection in view of a prior art article about a different antifolate, methotrexate.

July 3, 2018

Patent Office Issues 151 Patents To Indiana Citizens in June 2018

By Overhauser Law Offices, LLC

The U.S. Patent Office issued the following 151 patent registrations to persons and businesses in Indiana in June 2018, based on applications filed by Indiana patent attorneys:

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.

	Patent No.	Title
1	D0821294	Tire
2	10008830	High-voltage extender for connecting a spark plug to a high-voltage source
3	10008375	Systems and methods for analyzing an extracted sample
4	10008374	Systems and methods for transfer of ions for analysis
5	10007592	Debugging non-deterministic embedded systems

July 2, 2018

203 Trademark Registrations Issued to Indiana Companies in June 2018

By Overhauser Law Offices, LLC

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

Registration No.	Word Mark	Click To View
5492269	M	TSDR
5503233	NEED TO PARK	TSDR
5504962	NEMACOAT	TSDR
5502752	MAKING ORDINARY EXTRAORDINARY	TSDR
5502668	MARBLE-RITA	TSDR
5502660	ONE STEP MUD MAT STOPS DIRT AND WATER IN ITS TRACKS!	TSDR

June 21, 2018

Seventh Circuit Upholds Preliminary Injunction Issued in Favor of Elanco US, Inc. Against Arla Foods

By Overhauser Law Offices, LLC

Eli Lilly & Company and its subsidiary, Elanco US Inc., both of Greenfield, Indiana, filed suit in the Eastern District of Wisconsin alleging that Arla Foods, Inc. USA of Denmark, and Arla Foods Production LLC a Delaware Corporation used false advertising and unfair business practices in regards to Arla brand cheeses.

In 2017, Arla Foods launched a $30 million advertising campaign focused on expanding its cheese sales in the U.S. These advertisements included ads featuring a seven-year-old girl describing recombinant bovine somatotropin (“rbST”), an artificial growth hormone used to treat cows, as a type of monster. The ads implied that milk from cows that were treated with rbST was unwholesome and unnatural, therefore not good for your family.

Elanco makes the only FDA-approved rbST supplement, marketed under the name Posilac®. After the Arla campaign launched, Elanco filed suit alleging that Arla was in violation of the Lanham Act and simultaneously moved for a preliminary injunction with supporting copies of ads, evidence that a major cheese distributor decreased its purchasing of rbST in response to the ad campaign, and scientific literature pertaining to rbST’s safety. The district judge issued the requested injunction and later modified the injunction to cure technical deficiencies.

June 15, 2018

Federal Circuit Court of Appeals Affirms Ruling by Indiana Southern District Declining Award of Attorney Fees

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Stone Basket Innovations, LLC of Austin, Texas, filed a patent infringement lawsuit in the Eastern District of Texas which was transferred to the Southern District of Indiana alleging that Cook Medical, LLC of Bloomington, Indiana, infringed Patent No. 6,551,327 (“‘327 Patent”), Endoscopic Stone Extraction Device with Improved Basket, issued by the US Patent Office.

The initial Complaint for this case was filed on April 8, 2015. Defendant served their invalidity contentions in October 2015 and deposed the ‘327 patent’s inventor in January of 2016. During the deposition, the inventor stated in regards to an addition to overcome an examiner’s rejection, “I realize there is nothing novel about it.” Defendant then petitioned the U.S. Patent and Trademark Office for inter partes review (IPR) of all the claims. The District Court case was stayed pending the outcome of the petition for an IPR based off a joint motion.

After the IPR was instituted in September 2016, Plaintiff offered to license the ‘327 patent to Defendant for $150,000.00. Negotiations fell through and the settlement did not occur. Plaintiff then filed a motion requesting an adverse judgment in the IPR proceeding in December 2016 and moved to dismiss the District Court case with prejudice, both of which were granted.