The Supreme Court of the United States has affirmed the Federal Circuits’ Decision for the Helsinn Healthcare v. Teva Pharmaceuticals USA case regarding “secret sales” as prior art under the Leahy-Smith America Invents Act (“AIA”). In their Opinion, the Court held that given the pre-AIA precedent that even “secret sales” could invalidate a patent, the same “on sale” language in the AIA provisions should be given the same presumption. Further, the addition of the phrase “or otherwise available to the public” does not allow the Court to conclude that Congress intended to alter the meaning of “on sale,” but instead, means that 35 U.S.C. § 102 could be applied to other non-delineated situations.

us-supreme-court-building-2-300x200Helsinn Healthcare (“Helsinn”) produces a treatment utilizing the chemical palonestron to treat chemotherapy-induced nausea and vomiting. During the development of this product, Helsinn entered into two separate and confidential agreements with MGI Pharma, Inc. (“MGI”) giving MGI the right to distribute, promote, sell, and market a 0.25 g dose of palonosetron in the United States. While the dosage was kept confidential, the agreements were reported to the Securities and Exchange Commission. About two years later, in January 2003, Helsinn filed their provisional patent application covering a 0.25 mg dose of palonestron. Helsinn went on to file four patent applications claiming priority to the January 2003 provisional application, with its fourth patent application being filed in 2013 and being subject to the AIA. This fourth patent application led to the issuance of U.S. Patent No. 8,598,219 (the “‘219 patent”).

Teva Pharmaceutical Industries, Ltd. and Teva Pharmaceuticals USA, Inc. (collectively “Teva”) sought approval to market a generic 0.25 mg palonosetron product. Helsinn, in turn, filed suit against Teva for infringement of the ‘219 patent. Teva claimed that the ‘219 patent was invalid under the AIA because the invention was “in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.” 35 U.S.C. § 102(a)(1).

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Indianapolis, Indiana – Attorneys for Plaintiff, Baby Merlin Company of Uwchland, Pennsylvania originally filed suit in the Eastern District of Pennsylvania alleging that Defendants, CribCulture, LLC of Indianapolis,BlogPhoto-300x78 Indiana and Isaiah Blackburn of Westfield, Indiana infringed its rights in the United States Trademark Registration Nos. 4,271,544, 3,486,179, and 5,006,620 (the “Registered Marks”) for marks including the MAGIC SLEEPSUIT. Since then, the case has been transferred to the Southern District of Indiana. Plaintiff is seeking punitive and monetary damages, attorneys’ fees, and costs.

Baby Merlin’s founder conceived of or invented the MAGIC SLEEPSUIT® (the “Sleepsuit”), a swaddle-transition-sleep-product, in 2002. The Sleepsuit helps babies from three months to nine months sleep better by keeping them cozy and secure while transitioning from a swaddle to traditional sleep clothing. A mother, also a pediatric physical therapist, designed and created the Sleepsuit at issue in this case for her own children. After success with her own babies, the Baby Merlin Company was created, and it began selling the Sleepsuit in 2008.

Plaintiff claims that in 2017, Defendants copied key features of the Sleepsuit and introduced a competing product while unlawfully using the Registered Marks or marks similar to the Registered Marks. In one example of misuse, Defendants used “Baby Merlin Sleep Suit” in a blog post on their website that included a link to Baby Merlin’s website. In another example of confusingly similar uses, Defendants uses the word “SLEEPSUIT” on their packaging using a larger font for that word than any other word on the package. Further, Baby Merlin claims Defendants have used a variety of false and misleading statements about their product and Baby Merlin’s products in their advertising.

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Embassy-BlogPhotoIndianapolis, Indiana – Plaintiff and Attorney, Richard N. Bell of McCordsville, Indiana filed suit in the Southern District of Indiana alleging that Defendant, Embassy Suites Management LLC (“Embassy”) infringed his rights to the “Indianapolis Nighttime Photo” registered on August 4, 2011 with the US Copyright Office, Registration No. VA0001785115. Plaintiff is seeking actual and statutory damages, costs, reasonable attorney’s fees, and other relief deemed just and proper.

Bell, an attorney and professional photographer, has filed many copyright infringement cases to enforce his intellectual property rights. The photograph of the Indianapolis skyline in this case was taken in March 2000 and first published on the internet on August 29, 2000. Plaintiff is and has been the sole owner of the copyright and has published and licensed for publication the photograph in compliance with copyright laws.

Embassy used the Indianapolis Nighttime Photo on its website it created to advertise its Indianapolis business. Bell claims Embassy took the photograph from the internet without his permission. As it did not disclose the source of the photograph, Plaintiff claims Defendant willfully and falsely claimed that it owned the copyrights of all images on its website. Bell is seeking judgment declaring Defendant infringed his rights under the common law and the Federal Copyright Act.

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South Bend, Indiana – Attorneys for Plaintiff, Design Basics, LLC, Inc. of Omaha, Nebraska filed suit in the Northern District of Indiana alleging that Defendant Chrisandy,Sierra-BlogPhoto Inc d/b/a Sierra Homes and Sierra Home Builders, of Porter County, Indiana infringed on its copyrighted Architectural Works. Plaintiff is seeking actual damages, direct and indirect profits, statutory damages, temporary and permanent injunctions, attorneys’ fees, and costs.

A home design company, Design Basics creates, markets, publishes, and licenses single-use home floor plans. Each plan takes between fifty-five and ninety hours to design and draft the necessary construction drawings. Design Basics claims they have fallen victim to mass piracy after making their plans widely available on their own website and on other plan broker websites, and because of that, they have filed many lawsuits in Indiana to protect their intellectual property.

In December 2015, Design Basics discovered multiple houses constructed by Defendant that appeared to be copied from the five floor plans at issue in this case. Those copyrighted plans include Paterson, Bayley, Lancaster, Hancock Ridge, and Hartley (the “Copyrighted Works”). Design Basics currently owns the Copyrighted Works and was the sole owner of all right, title, and interest in the Copyrighted Works at all relevant times. Plaintiff alleges Defendant violated 17 U.S.C. § 1202 by removing Design Basics’ copyright management information. They further allege copyright infringement pursuant to 17 U.S.C. § 106.

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South Bend, Indiana – Attorneys for Plaintiff, Design Basics, LLC, Inc. of Omaha, Blum-BlogPhoto-300x104Nebraska filed suit in the Northern District of Indiana alleging that Defendant, Blum Construction, Inc., of Valparaiso, Indiana infringed its copyrighted Architectural Works. Plaintiff is seeking, actual damages, direct and indirect profits, statutory damages, temporary and permanent injunctions, attorneys’ fees, and costs.

The Plaintiff has been involved in designing, marketing, and licensing architectural works for over twenty years. Design Basics’ licenses include more than just simple floor plans as they are complete sets of construction drawings that the builder and/or crew working on the home can modify to meet customer’s needs. For the two copyrighted plans at issue in this case, Design Basics has earned more than $21,049.00 in the past ten years.

In recent years, Design Basics has filed a large number of lawsuits claiming copyright infringement for its home designs in Indiana. While researching for one of these cases, the Director of Business Development for Design Basics discovered a home in Valparaiso that looked to have been copied from one of Design Basics’ plans. The Plaintiff claims that Defendant’s plans entitled “The Executive,” “The Executive 2,” and “The Annie” infringe on its U.S. Copyright Registration Nos. VA 467-639 and VA 542-680 (the “Copyrighted Works”). Design Basics is seeking damages for removal of copyright management information and copyright infringement pursuant to 17 U.S.C. § 1202 and 17 U.S.C. § 106, respectively.

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Lafayette, Indiana – Attorneys for Plaintiff, Design Basics, LLC, Inc. of Omaha, Nebraska filed suit in theTempest-BlogPhoto Northern District of Indiana alleging that Defendant, Tempest Homes, LLC, of Lafayette, Indiana infringed on its copyrighted Architectural Works. Plaintiff is seeking judgment, actual damages, statutory damages, temporary and permanent injunctions, attorneys’ fees, and costs.

Design Basics offers single-build licenses for their home designs, which include the architectural work and technical drawings. In the last three years, it has sold and issued more than 2,500 licenses for home plans. The copyright at issue in this case is for the Carriage Hills Plan, Registration No. VA 726-342 (the “Copyrighted Work”). For the licensing of the Copyrighted Work, Design Basics has earned more than $2,395.00 of its Six Million Dollars in total revenue since 2009. Plaintiff currently has many pending cases in Indiana against various companies it believes have infringed their copyrighted floor plans.

The alleged infringement in this case was discovered in December 2015 by Design Basics as one of its representatives was searching public building records in the Lafayette, Indiana area. After discovering the similar floor plan, the representative viewed Tempest Homes’ website and found a floor plan, the McAllister, that looked to have been copied from the Copyrighted Work. Plaintiff claims Defendant has designed or sold homes using the infringing floor plan at least thirteen separate times. Design Basics is seeking judgment and damages for copyright infringement and the removal or omission of its copyright management information pursuant to 17 U.S.C. § 106 and 17 U.S.C. § 1202, respectively.

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BlueRibbon-BlogPhotoSouth Bend, Indiana – Attorneys for Plaintiff, Design Basics, LLC, Inc. of Omaha, Nebraska filed suit in the Northern District of Indiana alleging that Defendant, Blue Ribbon Builders, Inc., of South Bend, Indiana infringed on its copyrights of Architectural Works. Plaintiff is seeking judgment, actual damages, statutory damages, temporary and permanent injunctions, attorneys’ fees, and costs.

Design Basics is a company that creates technical drawings and architectural works for home designs. After creation, it markets and licenses the use of these works for $700 to $6,000 each. While the Plaintiff has spent more than $410,000 on capital improvements, including building two websites, in the past ten years, they have seen a decrease in licensing revenue. Design Basics alleges that this decrease in licensing revenue is due to massive piracy of its copyrighted home designs by multiple builders, including Defendant in this case and defendants in many other cases in Indiana.

While researching infringing homes related to another lawsuit, Design Basics discovered Blue Ribbon Builders had constructed several homes that appeared to be copied from Design Basics’ copyrighted designs. These copyrighted designs included Pine Ridge, Mayberry, Lancaster, Stevens Woods, and Linden (the “Copyrighted Works”). Plaintiff has at all relevant times been the owner of the Copyrighted Works and never licensed nor gave permission to Defendant to utilize them. Design Basics claims Defendant had actual knowledge of the Copyrighted Works as they were mailed plan catalogs and had reasonable access to the Copyrighted Works online.

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South Bend, Indiana – Attorneys for Plaintiffs, Design Basics, LLC, Inc. and Plan Pros, Inc. (“PPI”), both of Omaha, Nebraska filed suit in the Northern District of Indiana alleging that Defendant, Lifehouse Homes, LLC, of Lowell, Indiana infringed on their copyrights ofLifehouse-BlogPhoto Architectural Works. Plaintiffs are seeking judgment, actual damages, temporary and permanent injunctions, attorneys’ fees, and costs.

Plaintiffs design architectural works and technical drawings, approximately 350 of which they have registered with the United States Copyright Office since 2009. They offer single-build licenses for their home designs ranging from $700 to $6,000 per license. Plaintiffs have sold and issued more than 9,300 construction licenses for their home designs since 2009. Also listed among the services provided by Plaintiffs are marketing and advertising for other home design firms, and custom home designs.

Prior to the internet becoming a widely popular way to disseminate information and advertise businesses, Plaintiffs distributed catalogs and other publications to advertise their work. Plaintiffs now allege that after spending a large amount of money to build a user-friendly website to showcase their designs, profits have decreased instead of increased as expected because they designs are now being pirated at high rates. They have filed numerous lawsuits in the past few years against companies in Indiana, as it was previously a top-selling state for home plan licenses.

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Indianapolis, Indiana – Attorneys for Plaintiff, Matthew Cunningham of Michigan City, Indiana, filed suit in the Northern District of Indiana alleging that Defendant, Montgomery & Associates, Inc. also of  Michigan City, Indiana, infringed his rights in United States Copyright Registration No. VA 2-126-377 (the “Registered Photo”). Plaintiff is seeking actual damages, court costs, attorneys’ fees, pre and post judgment interest, and any other relief the Court deems just and proper.

Plaintiff is a professional photographer that licenses his photographs to online and print media companies inMontgomery-BlogPhoto exchange for a fee. Defendant owns and operates a magazine entitled The Beacher. The Registered Photo at issue in this case is one that Cunningham took of Jessica and Nick Rosier. Plaintiff is the sole owner of all right, title, and interest to the Registered Photo.

Cunningham claims that Defendant ran an article in The Beacher on or about May 24, 2018 that prominently featured the Registered Photo. Neither the article, nor the Registered Photo, contained any attribution to the Plaintiff. Plaintiff claims he never licensed the Registered Photo to Defendant, did not give consent or permission for its use, and Defendant knew the Plaintiff was the author and owner of it. As such, Plaintiff is seeking judgment and damages for copyright infringement pursuant to 17 U.S.C. §§ 106 and 501, and relief for the Defendant’s actions of knowingly removing the copyright management information from the Registered Photo pursuant to 17 U.S.C. § 1202(b).

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The U.S. Patent Office issued the following 129 patent registrations to persons and businesses in Indiana in December 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 D0836557 Electrical connector housing
2 D0836505 Compression relief brake assembly
3 10164708 Methods for determining receiver coupling efficiency, link margin, and link topology in active optical cables
4 10164394 Direct-attach connector
5 10163367 Refreshable tactile display

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