Articles Posted in Patent Infringement

This suit is over the design of two bottle caps.

Plaintiff, Closure, claims it designed the bottle cap on the left, and Defendant, Novembal, got a patent on the bottle cap on the right.  But Closure claims that it, not Novembal is the actual “inventor” of the bottle cap design.  Perhaps fearing that Novembal was about to file suit, Closure in its home turf of New Jersey and trying to gain a home court advantage, took the initiative and sued Novembal in Indiana.  Its Complaint sought to “correct the inventorship” of Novembal’s patent and to prevent Novembal from enforcing the patent against Closure. That suit is reported here:  Closure Systems International Sues Novembal USA Seeking Correction of Inventorship.  Not surpisingly, Novembal asserted a counterclaim for patent infringement.

Photo-300x142The twist is that in the infringement counterclaim, Novembal seeks a broad injunction.  So broad, that it would prevent not just Closure, but some of Closure’s customers from infringing the patent.  In its counterclaim, Novembal seeks:

A permanent injunction enjoining CSI and its employees, agents, successors, partners, officers, directors, owners, shareholders, principals, subsidiaries, related companies, affiliates, distributors, dealers, and all persons in active concert or participation with any of them . . . from making, importing, promoting, offering, or exposing for sale, or selling the CSI Production Closures, or any other closures with designs confusingly similar to the claimed design of Novembal’s ‘442 patent.

One company that apparently gets its bottle caps from Closure is Nestle, one of the biggest sellers of bottled water.  So far, no big deal.  Except, Nestle is represented by the blue chip Washington DC patent law firm, Finnegan, Henderson, Farabow, Garrett & Dunner.  Finnegan happens to be the same law firm that represents Novembal in the suit with Closure.  So Finnegan is attempting to get an injunction for one client (Novembal) that would apply to another client, Nestle. Continue reading

South Bend, Indiana – Attorneys for Plaintiff, Tatuyou, L.L.C. (“Tatuyou”) of Hastings, Minnesota, filed suit in the Northern District of Indiana alleging that Defendants, One Ink Seven LLC (“One Ink”) of Goshen, Indiana and Robert F. Smead (“Smead”), infringed its rights in its intellectual property portfolio. Tatuyou is seeking damages,costs, and attorneys’ fees.Blog-Photo-200x300

Tatuyou claims to be in the business of selling products to be used in the tattoo industry with an intellectual property portfolio all relating to its sales business. According to the complaint, Tatuyou is the owner by assignment of U.S. Patent No. 9,546,281 (the “‘281 Patent”) entitled “Tattoo Stencil Composition and Method for Manufacturing.” Tatuyou also claims to be the owner by assignment of U.S. Patent No. 8,545,613 (the “‘613 Patent”) entitled “Tattoo Transfer Pattern Printed by an Ink Jet Printer.”

According to the complaint, One Ink does business as “Electrum Supply” and owns and operates a website with the domain name: http://www.electrumsupply.com. Tatuyou claims that One Ink is infringing, actively inducing infringement, and contributorily infringing both the ‘281 Patent and the ‘613 Patent under 35 U.S.C. § 271 by offering for sale products named “Electrum Premium Tattoo Stencil Primer,” “Electrum Gold Standard Tattoo Stencil Primer,” “NOX Violet,” and “Eco Stencils.” Tatuyou’s attorney allegedly sent One Ink a letter on December 20, 2018 informing One Ink of the alleged infringement of the ‘281 Patent and a subsequent letter on June 12, 2019 to inform One Ink of the alleged infringement of the ‘613 Patent.

Indianapolis, Indiana – Attorneys for Plaintiff, NeurOptics, Inc. (“NeurOptics”) of Laguna Hills, California, filed suit in the Southern District of Indiana alleging that Defendant, Brightlamp, Inc. (“Brightlamp”) of Indianapolis, Indiana, infringed its rights in United States Patent Nos. 6,820,979 (the “‘979 Patent”) and 9,402,542 (the “‘542 Patent” and collectively the “Asserted Patents”). NeurOptics is seeking preliminary and permanent injunctions, treble damages, attorneys’ fees, costs, and any other relief the Court deems proper.


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NeurOptics claims to be an industry leader for the design, manufacture, and sale of pupilometer products. According to the Complaint, NeurOptics owns the Asserted Patents that are both entitled “Pupilometer with pupil irregularity detection, pupil tracking, and pupil response detection capability, glaucoma screening capability, intracranial pressure detection capability, and ocular aberration measurement capability.” Brightlamp is allegedly a manufacturer and distributor of pupilometer products.

As claimed in the Complaint, Brightlamp’s “Reflex” Mobile Pupillometer Application (“Accused Product”) is available for download and use by certified medical professionals and the use of that application results in direct infringement of the Asserted Patents. NeurOptics also stated it believes Brightlamp has infringed various claims from other patents owned by NeurOptics and the Complaint is likely to be amended as it completes its investigation. NeurOptics claims it sent a cease and desist notice in writing to Brightlamp prior to filing the Complaint, but Brightlamp continued the alleged infringement. Therefore, NeurOptics is seeking damages for infringement of the ‘542 and ‘979 Patents pursuant to 35 U.S.C. § 271 with willful damages, fees, and costs pursuant to 35 U.S.C. §§ 284 and 285.

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Hammond, Indiana – Attorneys for Plaintiff, FAM N.V. (“FAM”) of Belgium, filed suit in the Northern District of Indiana alleging that Defendant, Urschel Laboratories, Inc. (“Urschel”) of Chesterton, Indiana, infringed its rights in United States Patent No. D730,703 (the “D‘703 Patent”) entitled “Knife Holder”. FAM is seeking judgment, consequential and compensatory damages, attorneys’ fees and costs, pre-judgment and post-judgment interest, and any other relief the Court deems proper.

Photo-300x162FAM claims to be a world leader in designing, developing, and manufacturing of cutting solutions for the food industry. According to the Complaint, the D’703 Patent was issued to Brent L. Bucks on June 2, 2015 and was later assigned to FAM. FAM alleges the “25883 Urschel® USA” product is an example of a knife holder that has infringed the D’703 Patent. Further, FAM claims Urschel’s alleged infringement of the D’703 Patent is “willful, deliberate, and objectively reckless.” As such, FAM is seeking damages pursuant to 35 U.S.C. § 284 or 35 U.S.C. § 289, and is requesting the case be considered “exceptional” under 35 U.S.C. § 285.

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The United States Court of Appeals for the Federal Circuit issued an opinion as to Summary Judgment in the case of Columbia Sportswear North America, Inc. (“Columbia”), an Oregon Corporation, versus Seirus Innovative Accessories, Inc. (“Seirus”), a Utah Corporation. This appeal by Seirus-logo-300x289 Columbia came after a jury trial in the U.S. District Court for the Southern District of California found that claims 2 and 23 of U.S. Patent 8,453,270 (the “’270 Patent”) are invalid as anticipated and obvious. Seirus cross-appealed from the U.S. District Court for the District of Oregon’s grant of summary judgment that it infringes U.S. Patent D657,093 (the “’093 Patent”) and from the entry of the jury’s damages award. The Court of Appeals found claims 2 and 23 of the ‘270 Patent are invalid and that the Court for the District of Oregon erred in granting summary judgment for infringement of the ‘093 Patent.

Columbia originally filed suit in the District of Oregon on January 12, 2015 claiming that Seirus infringed both the ‘270 and ‘093 Patents. Seirus moved to transfer the case to the Southern District of California, but that motion was denied. The district court then “granted summary judgment that Seirus’s HeatWave products infringe the ‘093 patent” stating that “the difference in wave pattern, orientation, and the presence of Seirus’s logo” were characterized as “minor differences.” Seirus moved to transfer the case to the Southern District of California for a second time, two years after its first motion, in light of the decision in TC Heartland LLC v. Kraft Foods Grp. Brans LLC, 137 S. Ct. 1514 (2017). Due to the intervening case law, the District of Oregon transferred the remainder of the claims to the Southern District of California.

A jury trial wPatent-Design-Logo-274x300as held in the Southern District of California and claims 2 and 3 of the ‘270 Patent were found to be invalid as anticipated and obvious. The jury also awarded Columbia $3,018,174 in damages for non-willful infringement of the ‘093 Patent. Both Parties “filed post-trial motions for judgment as a matter of law and for a new trial, but the court summarily denied them in a two-page opinion.” Subsequently, the Parties each filed notices of appeal.

The court’s denial of the motions for judgment as a matter of law is reviewed by the substantial evidence standard. “A jury’s verdict must be upheld if supported by substantial evidence.” OTR Wheel Eng’g, Inc. v. W. Worldwide Servs. Inc., 897 F.3d 1008, 1015 (9th Cir. 2018) (citing Unicolors, Inc. v. Urban Outfitters, Inc., 853 F.3d 980, 984 (9th Cir. 2017). The court’s denial of a motion for a new trial is reviewed for an abuse of discretion. Molski v. M.J. Cable, Inc., 481 F.3d 724, 728 (9th Cir. 2007). The granting of a new trial may only be done “if the verdict is contrary to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice.” Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 510 n.15 (9th Cir. 2000). Continue reading

IndianapERMI-BlogPhoto-300x224olis, Indiana – Attorneys for Plaintiff, ERMI LLC (“ERMI”) of Atlanta, Georgia, filed suit in the Southern District of Indiana alleging that Defendants, Clyde Peach, Jr., (“Mr. Peach”) d/b/a Indiana Brace Co Inc., d/b/a, Clyde Peach LLC, d/b/a Peach Medical, LLC of Indianapolis, Indiana, willfully infringed its rights in United States Patent No. 6,669,660 (the “‘660 Patent”) for “Orthotic Apparatus and Method for Using Same.” ERMI is seeking damages, costs, attorneys’ fees, pre-judgment and post-judgment interest, and any other relief the Court deems proper.

According to the Complaint, Dr. Thomas P. Branch (“Dr. Branch”) while practicing as a board certified orthopedic surgeon with TREX Orthopedics, P.C., invented the orthotic apparatus claimed in the ‘660 Patent. Dr. Branch allegedly assigned all rights to the continuation patent application that led to the issuance of the ‘660 Patent to ERMI. The ‘660 Patent expired on August 10, 2019. ERMI claims it produces and sells the ERMI Knee Extensionater® device that is covered by the claims of the ‘660 Patent and marked with the ‘660 Patent number.

ERMI claims Mr. Peach filed a provisional followed by a non-provisional patent application (the “Peach ‘028 Application”) for a Knee Extension Therapy Device in July 2010 and July 2011, respectively. The Peach ‘028 Application was allegedly rejected by the United States Patent and Trademark Office on August 2, 2013 citing a number of patent references including the ‘660 Patent. ERMI claims the Peach ‘028 Application became abandoned on September 11, 2014 and that “Mr. Peach had actual notice of the ‘660 Patent no later than August 2, 2013.”

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Hammond, IndianaThe Northern District of Indiana, South Bend Division, issued its Opinion and Order denying a Motion for Preliminary Injunction in the case of Furrion Property Holding Limited, and Furrion Limited (collectively “Furrion”) versus Way Interglobal Network, LLC (“Way Interglobal”). This case was filed by Furrion-BlogPhoto-300x173Furrion in July 2019 alleging Way Interglobal’s oven infringed Furrion’s 2 in 1 Range Oven. Furrion then moved for a preliminary injunction, barring any further sales of the allegedly infringing product until the lawsuit was decided. The Court held Furrion “failed to meet its burden of showing irreparable harm”, and therefore denied the Motion for a Preliminary Injunction.

Furrion, as evidence of intentional copying and infringement, claims the user manual produced by Way Interglobal utilizes identical language to Furrion’s manual. While that could be an exceptional coincidence, Judge Simon found the images included in Way Interglobal’s manual included images of Furrion’s 2 in 1 Range Oven including Furrion’s trademarked logo. Way Interglobal’s CEO and president, Wayne Kaylor, testified that he was unaware of the similarities in the user manuals and speculated that the Chinese manufacturer who writes the user manual may have taken a shortcut when preparing the manual. Kaylor further testified that Way Interglobal had heard rumors that Furrion was alleging Way Interglobal’s range oven infringed Furrion’s patents in or around July 2018 and that “Way Interglobal changed the metal grate of its gas range to distinguish it from Furrion’s” without admitting any infringement.

To find in favor of Furrion’s motion for preliminary injunction, Furrion must show “(1) a likelihood of success on the merits . . . ; (2) a likelihood of irreparable harm if the injunction is not granted; (3) the balance of hardships between the parties favors an injunction; and (4) the public interest likewise favors an injunction.” PHG Techs., LLC v. St. John Companies, Inc., 469 F.3d 1361, 1365 (Fed. Cir. 2006). “[I]f the moving party fails to clear the likelihood of success and irreparable harm hurdles, ‘a court’s inquiry is over and the injunction must be denied” in the Seventh Circuit. Abbott Labs v. Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992). However, if the moving party shows all four elements, the court weighs he factors in deciding whether to grant the injunction.

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The Petitioner, Lippert Components, Inc. (“Lippert”), filed a Petition for inter partes review of claims 12 and 13 of Days Corporation’s (“Days”) United States Patent No. 6,619,693 B1 (the “‘693 Patent”) for “Apparatus andLippert-BlogPhoto-300x214 Method for Automatically Leveling an Object”. In addition to filing its Reply and Sur-Reply to the inter partes review, Days also filed a Motion to Amend the ‘693 Patent. Days also filed a Motion to Exclude Evidence prior to the oral hearing. The United States Patent Trial and Appeal Board (the “PTAB”) determined claims 12 and 13 of the ‘693 Patent are unpatentable, denied Days’ Motion to Amend, and dismissed Days’ Motion to Exclude as moot.

The ‘693 Patent “discloses an apparatus for automatically leveling a vehicle, such as a recreational vehicle, that is located on uneven terrain or an out-of-level surface.” The vehicle to be leveled contains four adjustable legs that can be manually lowered and raised to achieve a feeling of true level relative to horizontal in the interior of the vehicle. The leveling process can also be performed automatically with the use of a controller. The person having ordinary skill in the art for the Court’s analysis was found to be a person having “either a bachelor’s degree in engineering, preferably mechanical or electrical, or at least five years of work experience in the field of vehicle leveling systems and related equipment.”

The PTAB interpreted the claims 12 and 13 of the ‘693 Patent using the “broadest reasonable construction in light of the patent’s specification.” See 37 C.F.R. § 42.100(b) (2018). The term “reference level plane”, when referring to a pre-set vehicle orientation plane, may be construed to be a plane in which the vehicle feels at true level to horizontal. In claims 12 and 13, there are two identical “Sensor Limitations”. Those Sensor Limitations are “a sensor . . . to sense pitch and roll of the vehicle relative to a reference level plane,” and “the sensor produces an orientation signal representing the vehicle pitch and roll.” In this case, the PTAB agreed with Lippert in that when construed “under the broadest reasonable construction in light of the ‘693 patent specification, claims 12 and 13 do not require the sensor to be aligned directly along the vehicle’s longitudinal and lateral axes.” The PTAB further stated that “[c]onstruing claims 12 and 13 to be limited to a sensor that must be aligned directly along the vehicle’s longitudinal and lateral axes would improperly incorporate a limitation into the claims from the specification.”

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BlogPhotoCummins Inc. of Columbus, Indiana has announced success in legal actions against Turbotechsnab LLC and Weifang Yuhang Turbocharger Co. Ltd. for infringement of Cummins’ trademarks and patents.

In a decision reached by the Moscow City Arbitrazh Court, Turbotechsnab was held to have infringed Cummins’ HOLSET trademarks. The court awarded an injunction against Turbotechsnab prohibiting further illegal use of Cummins’ HOLSET trademarks in connection with selling, offering to sell, storing and advertising turbochargers. Additionally, the court ordered Turbotechsnab to pay damages and fees to Cummins.

As part of the settlement with Weifang Yuhang Turbocharger Co. Ltd., that company agreed to cease and desist purchasing, making and selling any nozzle ring product that infringes Cummins’ patents, and agreed to destroy all existing infringing stock.

Indianapolis, Indiana – Attorneys for Plaintiff, Tenstreet, LLC (“Tenstreet”) of Tulsa, Oklahoma, filed suit in DriverReach-BlogPhotothe Southern District of Indiana alleging that Defendant, DriverReach, LLC (“DriverReach”) of Indianapolis, Indiana, infringed its rights in United States Patent No. 8,145,575 (the “‘575 Patent”) for “Peer to Peer Sharing of Job Applicant Information”. Defendant moved to dismiss the Complaint and the Court has now granted that motion.  This case was described on this site here.

Tenstreet develops products for the transportation industry such as its XchangeTM network to help share job applicant verification data between employers, past and present, for commercial truck drivers. The ‘575 Patent, obtained by Tenstreet on March 27, 2012, claims to streamline the verification process between past and prospective employers while giving the drivers a chance to review and correct information before it is sent to the prospective employer. DriverReach allegedly sells its own employment verification product, VOE Plus Solutions. Tenstreet claimed VOE Plus Solutions infringed on the ‘575 Patent. DriverReach moved the Court to dismiss Tenstreet’s claims “on the ground that the ‘575 patent is patent-ineligible subject matter under 35 U.S.C. § 101.”

Pursuant to 35 U.S.C. § 101, patentable subject matter is “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” However, the Supreme Court has held “that this provision contains an important implicit exception[:] Laws of nature, natural phenomena, and abstract ideas are not patentable.” Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013) (quoting Mayo Collaborative Servs. V. Prometheus Labs., Inc., 566 U.S. 66, 70 (2012)). In this case, the Court discusses the abstract idea exception. When determining if a patent claims an abstract idea, the Court first looks to whether the claims are directed to a patent-ineligible concept. Second, the Court looks for an “inventive concept” which transforms the claim into a patent-eligible application.

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