Uncategorized

February 11, 2019

Supreme Court Finds Secret Sales are Prior Art Under the AIA

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.

Helsinn 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).

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.

May 9, 2018

Indiana Copyright Litigation: Richard Bell Sues Real Estate Business Owner Over Indianapolis Photo

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorney Richard Bell of McCordsville, Indiana filed suit in the Southern District of Indiana alleging that Defendant, David Brenton infringed its rights to the “Indianapolis Photo” registered on August 4, 2011 with the US Copyright Office, Registration No. VA0001785115. Plaintiff is seeking actual and statutory damages, attorneys’ fees, and any other relief as is just and proper.

Bell is notorious for suing over his copyrighted photo, having filed dozens of previous lawsuits against a variety of defendants across the country. In March 2000, Bell took a photo of the Indianapolis skyline, and has published it or licensed it for publication since that time. He registered the copyright for the photo in 2011.

April 30, 2018

Indiana Trademark Litigation: Indiana ATV Manufacturer ASW, LLC Sues Canada Company Over Trademarks

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – Attorneys for Plaintiff, ASW, LLC of Columbia City, Indiana filed suit in the Northern District of Indiana alleging that Defendant, Frederick Bisson, of Edmonton, Alberta, Canada infringed its rights in United States Trademark Registration Numbers 3,556,429 for “American SportWorks”, and 5,138,550 for “American LandMaster”. Plaintiff is seeking damages, attorneys’ fees, costs and disbursements, pre-judgment and post-judgment interest, and all other relief just and proper.

Plaintiff is an Indiana-based manufacturer of recreational off-road vehicles, ATVs, UTVs, and go-karts. According to the complaint, Defendant is a Canadian citizen and the owner of the website www.americansportworksparts.com.

April 16, 2018

Indiana Copyright Litigation: Nebraska Home Designer Sues Indiana Home Builder Over House Designs

By Overhauser Law Offices, LLC

South Bend, Indiana – Attorneys for Plaintiff, Design Basics, LLC, Inc. of Omaha, Nebraska filed suit in the Northern District of Indiana alleging that Defendant, Miller Brothers Builders, Inc., of Goshen, Indiana infringed their copyrights. Plaintiff is seeking judgment, actual damages, temporary and permanent injunctions, and attorneys’ fees and costs.

Plaintiff is a Nebraska-based architectural firm that focuses on designing and licensing designs of residential homes. Defendant is an Indiana-based homebuilder. According to the complaint, Plaintiff owns copyrights protecting various architectural designs that it has created. One of the Plaintiff’s copyrighted designs is the subject of this litigation, specifically, a design titled “Waverly.”

February 1, 2018

Indiana Copyright Litigation: Pearson Education Sues Indiana Company Over Infringement of Copyrighted Educational Materials

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Pearson Education, Inc. of New York, New York filed suit in the Southern District of Indiana alleging that Defendant, Christopher Deiter d/b/a www.easynotecards.com of Indianapolis, Indiana infringed its rights of Copyright in the United States Copyright Office of Pearson Education, Inc.’s Copyright Registration No. TX0008183299. Plaintiff is seeking relief under Title 17, Title 28, pre-judgment and post-judgment interest, statutory damages and attorneys’ fees.

Plaintiff Pearson produces and distributes educational materials to schools around the world. They publish textbooks, assessments, test banks, and a wide variety of other learning tools for teachers and students.

Defendant owns the company at www.easynotecards.com. The website offers users the ability, at no cost, to create online flash cards that correspond to specific chapters and sections in educational materials. Users who have access to various educational materials will post flash cards replicating the materials on the website.

December 20, 2017

Indiana Patent Litigation: Purdue Trustees Sue Japanese Corporation Over Blood Pressure Monitor Patent

By Overhauser Law Offices, LLC

Lafayette, Indiana – Attorneys for Plaintiff, The Trustees of Purdue University of Lafayette, Indiana filed suit in the Northern District of Indiana alleging that Defendants, Omron Corporation and Omron Healthcare Company, Limited of Japan infringed its rights in United States Patent No. 7,014,611 B1 (“the 611 Patent”) for “Oscillometric Noninvasive Blood Pressure Monitor”. Plaintiff is seeking judgment, compensatory damages, supplemental damages and interest, and such other and further relief and all remedies available at law.

The ‘611 patent describes a small blood pressure monitor to be worn around one’s wrist or other limb. The patented item includes the monitor and a pump to inflate the cuff, among other details. Plaintiff alleges that Defendants have been infringing the patent by offering for sale numerous infringing blood pressure monitors that Plaintiff alleges “embody the apparatuses and practice the methods covered by one or more claims of the ’611 patent.”

December 19, 2017

Indiana Copyright Litigation: Bell Finds Another Defendant To Sue Over Skyline Photo’s Copyright

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorney Richard Bell of McCordsville, Indiana filed suit in the Southern District of Indiana alleging that Defendant, River Pools & Spas Incorporated of Warsaw, Virginia, infringed its rights in the “Indianapolis Photo” registered on August 4, 2011 with the US Copyright Office, Registration No. VA0001785115. Bell seeks injunctive relief along with statutory damages, costs and attorney fees.

Bell has filed many lawsuits on his own behalf asserting copyright infringement in Indiana federal courts. See:

The Defendant in this case is River Pools & Spas Incorporated manufactures and installs pools and spas in residential homes. According to the complaint, the Defendant used the copyrighted photo on their business website, without permission or attribution. Plaintiff also claims that Defendant is vicariously liable for any profits realized by third parties through any third party’s downloading and use of the photo off of Defendant’s website.

December 11, 2017

Arizona-based Manufacturer Sues Indiana Corporation for Alleged Infringement of “Bulletproof” and Bulletproof Diesel” common law and registered Trademarks

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Neal Technologies, Inc. d/b/a Bullet Proof Diesel of Mesa, Arizona filed suit in the Southern District of Indiana alleging that Defendant, Superior Auto and Diesel Repair, Inc., of Shelbyville, Indiana infringed its rights in the following trademarks: U.S. Registration No. 4,235,578, U.S. Registration No. 4,262,825, U.S. Registration No. 5,130,772, U.S. Registration No. 5,220,129, U.S. Registration No. 5,220,128, and U.S. Registration No. 5,220,127.

Plaintiff company is an Arizona-based manufacturer of aftermarket parts for diesel engines, specifically Ford Power Stroke diesel engines. In 2009, the Plaintiff began selling an aftermarket part to improve the cooling system of a 6.0 liter Ford Power Stroke diesel engine, and marketed the part under various trade names such as “Bulletproof” and “Bulletproof Diesel.”

The Plaintiff has both common law and registered trademarks for various “Bulletproof” and “Bulletproof Diesel” marks. According to the complaint, the Defendant has marketed packages of aftermarket parts for the same type of Ford engine under the name “Bulletproof” and “Bulletproofing packages.” Plaintiff’s complaint alleges that Defendant uses theses marks to market aftermarket parts packages on their website, despite not having authorization from Plaintiff, and Defendant does not sell or install genuine Bullet Proof Diesel parts.

The complaint alleges federal trademark infringement under the Lanham Act, Unfair Competition under the Lanham Act, and Unfair Competition under Indiana common law. Plaintiff is seeking compensatory and treble damages, costs incurred, prejudgment interest, attorney’s fees and all other relief the court deems proper.

December 8, 2017

Southern District of Indiana Dismisses College Football Players’ Suit Against FanDuel and DraftKings

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiffs, Akeem Daniels, Cameron Stingily, and Nicholas Stoner, Inc., filed suit in the Southern District of Indiana alleging Defendants, FanDuel, Inc., and DraftKings, Inc. used the likeness of the three Plaintiffs and alleged a Right of Publicity claim.The decision was made by the district court granting the Defendants’ Motion to Dismiss the case.

The Defendants are fantasy sports websites that run collegiate fantasy football games, among other sports. The Plaintiffs were collegiate football players whose names appeared on the websites as players available for selection for a user’s fantasy team.

Plaintiffs filed suit claiming that Defendants violated their rights of publicity under Indiana’s Right of Publicity statute by using their name and likenesses on the websites without first obtaining permission. Defendants moved to dismiss for failure to state a claim. The Defendants put forward three main defenses: that certain statutory exemptions in the Indiana statute removed protection for the Plaintiffs, that First Amendment free speech allowed the use, and that federal copyright law preempted Plaintiff’s claims.

The Court ruled in favor of the Defendants’ motion to dismiss based on the statutory exemptions in the Indiana statute. The Court found that the Defendants’ use of Plaintiff’s names fell into the “newsworthy” and “public interest” exemptions to the state Right of Publicity statute. For the sake of thoroughness, the Court continued their analysis and rejected the other statutory exemptions put forward, as well as the First Amendment and federal preemption defenses.