Indiana patent attorneys obtained issuance of the following 179 patents from the US Patent Office to persons and businesses in Indiana in January, 2013:
|
PAT No. |
Title |
|
|
1 |
||
|
2 |
||
|
3 |
||
|
4 |
||
|
5 |
||
|
6 |
||
|
7 |
||
|
8 |
||
|
9 |
||
|
10 |
Indianapolis, IN – The Southern District of Indiana has issued an Order concerning claim construction for three of nine patents-in-suit: U.S. Patent Nos. 5,699,038,6,147,592 and 7,538,659.
Patent attorneys for Hill-Rom Services, Inc., Hill-Rom Company, Inc. and Hill-Rom Manufacturing, Inc. (collectively, “Hill-Rom”) filed a patent-infringement action against Stryker Corporation, doing business as Stryker Medical and Stryker Sales Corporation (collectively, “Stryker”), alleging that Stryker had infringed nine of its patents. Stryker countered, alleging non-infringement and invalidity of the patents-in-suit.
The suit, initially filed in the Western District of Wisconsin, was transferred to the Southern District of Indiana. Six of the nine patents-in-suit are currently undergoing reexamination before the United States Patent and Trade Office pursuant to Stryker’s request and the Court considered only the other patents-in-suit.
In this Order, the Court determined the scope and meaning of the asserted patent claims, a necessary step before ruling on the question of infringement. The three patents-in-suit addressed involve data transfer patents that allow hospital personnel to monitor the status of patients’ beds remotely.
Five claim terms from the three patents at issue were presented to be construed by the Court: 1) “datalink”, 2) “interface board including processor”, 3) “message”, 4) “bed condition message” and 5) “message validation information”.
In each case, Hill-Rom proposed no definition other than reiterating the precise wording of each claim term at issue, apparently relying substantially on the heavy, but rebuttable, presumption that claim terms will be afforded their full ordinary and customary meaning. In contrast, Stryker criticized Hill-Rom’s failure to expand on what a plain and ordinary meaning would be when considered in the context of the specification and prosecution history.
The Court agreed with Stryker. 
For each of the five claim terms at issue, the Court exactly or substantially adopted Stryker’s proposed definition.
For “datalink”, which was both the claim term and the proposed construction by Hill-Rom, the Court adopted Stryker’s proposal exactly, construing it to mean “A cable connected to the bed that carries data”.
The Court construed “interface board including processor” to mean “A board that processes an input signal to create bed condition messages and sends those messages to a remote location via the wall interface unit. It can also receive messages through the wall interface unit.” Of all of the claim terms, the Court differed the most from Stryker’s proposal — “A board that includes the electronics that control the sending of messages to, and the receiving of messages from, a remote location.” — on the construction of this term.
The third term, “message”, again proposed to mean only “message” by Hill-Rom, was interpreted to mean “A plurality of data fields of appropriate length assembled into a defined structure. A message is distinct from an input signal.”
“Bed condition message” was construed to mean “A message not generated in response to any user request that contains the status of all conditions the bed is capable of monitoring.”
Finally, “message validation information” was construed to mean “A data field within a message that is used to verify that the message was received exactly the same as it was sent.”
The case was referred to Magistrate Judge LaRue for further proceedings.
Practice Tip #1: Hill-Rom’s interpretation of “plain and ordinary meaning” as requiring merely the repetition of the terms at issue was soundly rejected by this Court, as it has been by other courts. Instead, it is often true that, in those cases that a lawsuit is filed, the parties can expect that there will be disagreements on what constitutes a “plain and ordinary meaning.” Consequently, it is advisable for both parties to consider providing the court with additional language supporting their respective positions. Failure to do so results in the court being presented with only one alternate definition to consider when construing claims, a situation not likely to benefit the party providing no additional language.
Practice Tip #2: It appears that Hill-Rom was trying to use general language in its claims to secure for itself broad protection under its patents. While that goal is understandable, claims cannot enlarge the scope of a patent beyond what has been described in the invention. So, for example, while the use of the broad term “datalink” might seem to protect a wide range of types of data sent over different types of links, without a proper foundation elsewhere in the patent, such a term will be ineffective in providing the desired protection.
Continue reading
Indianapolis, IN – The Southern District of Indiana has denied all summary judgment motions of both plaintiff CleanTech and all defendants in this multi-district litigation involving patents issued by the US Patent Office.
GreenShift Corp. 
and its subsidiary GS CleanTech Corp. (“CleanTech”) have brought a series of suits alleging infringement of their family of patented methods of extracting corn oil from byproducts of ethanol manufacturing. This multi-district litigation, In re Method of Processing Ethanol Byproducts and Related Subsystems (‘858) Patent Litigation, consolidates 11 separate actions in multiple states involving several similar patents in the Southern District of Indiana.
The defendants are: Big River Resources Galva, LLC; Big River Resources West Burlington, LLC; Cardinal Ethanol, LLC; ICM, Inc.; LincolnLand Agri-Energy, LLC; David J. Vander Griend; Iroquois Bio-Energy Co., LLC; Al-Corn Clean Fuel; Blue Flint Ethanol, LLC; ACE Ethanol, LLC; Lincolnway Energy, LLC; United Wisconsin Grain Producers, LLC; Bushmills Ethanol, Inc.; Chippewa Valley Ethanol Co.; Heartland Corn Products and Adkins Energy, LLC.
The initial litigation alleged infringement of one patent, U.S. Patent No. 7,601,858 (the “‘858 patent”), which was issued on October 13, 2009. CleanTech sued GEA Westfalia Separator, Inc. (not a party in this matter) and others alleging infringement of that patent shortly after its issuance.
Allegations of infringement of three additional patents, U.S. Patent Nos., 8,008,516 (the “‘516 patent”), 8,008,517 (the “‘517 patent”) and 8,283,484 (the “‘484 patent”; collectively known, together with the ‘858 patent, as the “‘858 patent family”) were later added. The patents in the ‘858 family share an identical specification and have substantially similar claim terms. As such, the court concluded that the construction of the ‘858 patent applied to all of the asserted claims in the other patents in the ‘858 family.
CleanTech’s patented methods recover corn oil by evaporating, concentrating and mechanically separating thin stillage (“stillage”), a byproduct of ethanol produced from corn, into two components: corn oil and a post-recovery syrup (“syrup”) with most of its corn oil removed. In the patents, the term “substantially oil free” (and the essentially identical term “substantially free of oil”) had been used to describe the syrup after the patented process had removed the corn oil.
The defendants argued that this language required that, to infringe upon the patented processing, a removal process must remove almost all of the corn oil from the syrup. The defendants moved for a finding on summary judgment that they had not infringed, arguing that the patented process did not include one which did not render the processed syrup “substantially oil free.” The court disagreed that this was the proper construction of the term.
Defendants also asked the court to construe “substantially oil free” to require that at least 95% of the oil from the unprocessed stillage be removed by the patented oil-removal process, thus rendering any less efficient process non-infringing. While the court agreed that a comparison between the oil levels in the input stillage and the output syrup was appropriate when considering the term, it declined to limit the protection afforded by the patent to this, or any, specific percentage and held that the term “substantially oil free” was to be interpreted according to its ordinary meaning.
In addressing the issue, the court discussed the language of the various patents and noted that, across the entire ‘858 patent family, the term “substantially oil free” had been found in only two substantially similar claims. Further, the one reference found in the specification had been parenthetical — “[r]ecombining the syrup (which is substantially free of oil) from the centrifuge…” — and, according to the court, “almost an afterthought.”
In sum, on this issue, the court found that none of the claims in the ‘858 patent family required that the post-oil-recovery syrup be substantially free of oil and concluded, instead, that the ‘858 patent family merely disclosed that the post-oil-recovery syrup was “substantially free of oil.” The court held that the primary focus of the invention was not the amount of oil that remained in the syrup but, instead, on the recovery of oil.
Additionally, the defendants (except Adkins) asked the court to revisit an earlier construction of the term “substantially oil,” as applied to the corn oil captured, asking that it be held to mean that the oil must be nearly pure. Defendant Cardinal further argued that the “substantially oil” term should be construed to mean nearly 100% pure, with only trace amounts of contaminants. The court declined to readdress the construction of this term.
The court also denied CleanTech’s motions for summary judgment against various defendants.
Finally, the court acknowledged that, since receiving the parties’ summary judgment motions, it had allowed CleanTech to amend its complaints against each defendant such that nearly all patents in the ‘858 family were asserted against each defendant. Consequently, all summary judgment motions were denied without prejudice and with leave to re-file them to address the amended complaint.
Practice Tip #1: Multi-district litigation affords consistency and judicial economy, as well as allowing plaintiffs and defendants to concentrate their efforts in one forum. However, lawsuits that are not settled before trial must later be remanded to the transferring court and to a judge who has had little opportunity to become familiar with the issues.
Practice Tip #2: In this case, CleanTech filed suit almost immediately after the issuance of the first of the patents in the ‘858 family. Thus, damages are limited to a reasonable royalty upon a showing that an infringer had actual notice of the published patent application and that the patent was subsequently issued on essentially the same claims. As such, if a patent is filed in anticipation of litigation, it is wise to provide such notice immediately upon publication of the patent application.
Geneva, Switzerland – The World Trade Organization (“WTO”) has granted its permission for the twin-island nation of Antigua and Barbuda (“Antigua”) to disregard intellectual property rights granted by the United States (i.e., patents, copyrights and trademarks). The decision follows nearly ten years of negotiations and litigation pursuant to a 2003 complaint to the WTO by Antigua.
In the United States, there are three separate federal laws (the “Wire Act,” the “Travel Act” and the “Illegal Gambling Business Act”) and various state laws promulgated by Louisiana, Massachusetts, South Dakota and Utah that prohibit certain means of delivering gambling services, most particularly the interstate delivery such services. The dispute centered on the conformance of these laws with an international trade agreement when the laws restricted online gambling services offered in the U.S. by Antigua. [NB: Other WTO members participated as complainants but, by 2009, the U.S. had negotiated agreements with each of them.]
Via its attorneys, Antigua alleged that, together, the federal and state restrictions amounted to discrimination against foreign companies and constituted a breach of the United States’ agreement under the WTO’s General Agreement on Trade in Services (“GATS”). Antigua stated that its economy, which had, without the restrictions, included a substantial volume of online gambling services offered to the residents of the U.S., had been significantly damaged.
Indianapolis, IN – The Indiana Court of Appeals has vacated the decision of The Honorable Timothy Oakes, Marion County Superior Court, to seize the truck of a defendant who pled guilty to fraud for having sold pirated movies from the truck.
In December 2009, the State charged Michael Curtis with felony fraud for selling pirated movies out of his truck. The State also sought forfeiture of the truck from which the movies had been sold under 34-24-1-1(a)(1)(B) which allows for the seizure of vehicles that are used to facilitate the transportation of “stolen . . . or converted property” valued at $100 or more.
Curtis pled guilty to one count of fraud and the remaining charges were dismissed. The court granted the State’s motion to seize the truck. Curtis filed a motion in opposition, which was not granted, and later appealed.
Upon appeal, Curtis cited Dowling v. United States, 473 U.S. 207 (1985) as precedent and the Indiana Court of Appeals discussed the case.
The U.S. Supreme Court held that a copyright was “no ordinary chattel,” Dowling, 473 at 216. Theft of a copyrighted work via infringement was held to be distinguishable from theft of tangible property as it “plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.” Id. at 218.
In Dowling, the defendant had engaged in infringement but had been convicted under the portion of the National Stolen Property Act (“NSPA”) which criminalized actions wherein items, subject to other conditions, were “stolen, converted or taken by fraud.” 18 U. S. C. § 2314. The Court ruled that the language of “stolen, converted or taken by fraud” did not include copyright infringement. Under the rule of lenity — a rule which calls for construing ambiguous criminal statutes in favor of criminal defendants — the Court held that the defendant had not violated the NSPA by infringing upon a copyright.
In Dowling, the rule of lenity caused the Court to construe the language of a criminal statute narrowly. Here, the Indiana Court of Appeals was asked to interpret a statute authorizing forfeiture, another type of statute that is strictly construed. As the language “stolen . . . or converted” did not include either fraud or copyright infringement, the order of the trial court to forfeit the truck was vacated.
Practice Tip: While the penalties for copyright infringement can be significant, the rule in Dowling will presumably prevent many statutes prohibiting theft of tangible items from being applicable to copyright infringement unless the legislature makes clear its intent to include copyright infringement in the language of the statute.
South Bend, IN – Patent attorneys for Engineered Solutions, L.P.of Mishawaka, IN has filed suit against AL-KO KOBER, LLC of Elkhart, IN for infringement of 
U.S. Patent No. 6,681,531, issued by the US Patent Office. The plaintiff claims that the AL-KO Kober offers for sale an above-floor, slide-out actuating mechanism for RVs that infringes Plaintiff’s ‘531 patent.
This case has been assigned to Chief Judge Philip P. Simon and Magistrate Judge Christopher A Nuechterlein of the Northern District of Indiana, and assigned Case No. 3:13-cv-00051-PPS-CAN.
Further Information about the case is as follows:
Plaintiff: Engineered Solutions LP
Defendant: Al-Ko Kober LLC
Case Number: 3:2013cv00051
Filed: January 24, 2013
Court: Indiana Northern District Court
Office: South Bend Office
County: St. Joseph
Presiding Judge: Philip P Simon
Referring Judge: Christopher A Nuechterlein
Nature of Suit: Intellectual Property – Patent
Cause: 35:271
Jurisdiction: Federal Question
Jury Demanded By: Plaintiff
Washington, DC
On January 18, 2013, the U.S. Patent and Trademark Office on issued final rules setting revised patent fees under Section 10 of the America Invents Act. (78 Fed. Reg. 4211). Section 10 of the AIA permits the USPTO to set or adjust by rule any fee under Title 35 or Title 15 for any services performed by or materials furnished by the Office. According to the statute, the fees may only recover the aggregate estimated 
costs for patent and trademark processing, activities, services, and materials. In its final rule notice, the Office said the fee-setting authority would permit sustainable funding and reduce the patent application backlog. According to the Federal Register notice:
The fee schedule in this final rule will recover the aggregate estimated costs of the Office while achieving strategic and operational goals, such as implementing a sustainable funding model, reducing the current patent application backlog, decreasing patent application pendency, improving patent quality, and upgrading the patent IT business capability and infrastructure.
For the most part, the fees in the final rules are the same as those in the proposal published last September (77 Fed. Reg. 55028, 9/6/2012). Many of the new front-end fees are reduced, such as the basic filing fee for an original patent application (reduced from $380 to $280), and the new fees include the 50% discount for small entities and 75% discount for micro entities. Among the differences between the proposed and final fees, the following are examples for non-small entity applicants:
• Correction of inventorship after first Office action (§1.17(d))
Proposed: $1,000; Final: $600
• Issue fee paid before January 1, 2014 (§1.18(a)(2))
Proposed: $960; Final: $1,780
• Ex parte reexamination fee (§1.20(c)(1)):
Proposed: $15,000; Final: $12,000
• Ex parte reexamination fee after supplemental examination (§1.20(k)(2))
Proposed: $13,600; Final: $12,000
• Notice of appeal to PTAB (§41.20(b)(1))
Proposed: $1,000; Final: $800
The Patent Public Advisory Council reviewed the September 2012 proposed rules and noted the many of the fees were tied to reducing pendency, using a goal of 10 months to the first Office action by 2015, and a goal of 20 months total pendency by 2016. Under the final rules, achievement of those two goals is pushed back to 2016 and 2017 respectively. In addition, the Office anticipates a reduced backlog and inventory of approximately 335,000 patent applications by 2016. For most of the fees, the effective date is March 19. 2013.
Indianapolis, IN – Attorney and self-proclaimed professional photographer Richard N. Bell, suing on his own behalf, filed two separate complaints alleging copyright infringement and unfair competition under the Copyright Act and conversion under Indiana statutory law as a result of the unauthorized use of a photograph he had taken and which had been registered with the United States Copyright Office. Bell is seeking damages, injunctive relief and a declaratory judgment. Mr. Bell has been disciplined by the Indiana Supreme Court for violating the Rules of Professional Responsibility. (See Disciplinary Action here.)
In the first complaint, filed January 4, 2013, Bell named twenty-five separate Defendants: Greg Bayers, LLC; Leppart Associates; crazy-frankenstein.com; Hometown Rentals; Frank Kirchner; Brent Bythewood; Pixmule.com; InternMatch; Team Champion; Electraproducts; Alex Bruni; Mark Groff; Greatimes Family Fun Park; Peter Brzycki; Tom Kelly; Relociti.net; gerberbabycontest.net; MerchantCircle, Inc; Amber Russell; WSBT, Inc.; Delia Askew; Intercontinental Industries; The Friedman Foundation for Educational Choice; Linen Finder, Inc.; and Radio One of Indiana.
In the second complaint, filed January 8, 2013, Bell named the remaining forty-eight Defendants: Jerry Gordon; Demand Media, Inc.; Bryce Welker; Royal Corniche Travel Ltd.; VRBO.com, Inc.; Experience Credit Unions, LLC; Jaclothing.com; Glacier International; ABNHotels.com; 1&1 Internet, Inc.; Conde Nast Digital; Flixter, Inc.; Financing-USA.com; SodaHead, Inc.; NuMedia Marketing, Inc.; Jynell Berkshire; Tzvetelin Petrov; Los Pentecostales del Area de la Bahia; 10Best, Inc.; Keyes Outdoor Advertising; Zoom Communications Inc.; Christine Nevogt; Zarzar, Inc.; Hydro-Gear; Tam T. Dang; Lon Dunn; William McLaws, Trustee; Natl-electronic Residential Payment History Recording Agency; CVI; Constant Contact, Inc.; Charles Lantz; Schumacher Cargo Logistics; Eventbrite, Inc.; Celebrity Entertainment Corp.; Association of Equipment Manufacturers; Yardi Systems Inc.; DiamondIndyLimo.com; Marcelo Santos; National Rural Recruitment & Retention Network; Anbritt Stengele; Pinnacle Sports Equipment, Inc.; Marygrove College; RunAnyCity.com; Buzzle.com, Inc.; Charles Onuska; University of Indianapolis; and PersephoneMagazine.com.
The US Trademark Office issued the following 130 trademark registrations to persons and businesses in Indiana in December, 2012, based on applications filed by Indiana Trademark Attorneys:
|
Word Mark |
||||
|
1 |
||||
|
2 |
||||
|
3 |
||||
|
4 |
||||
|
5 |
||||
|
6 |
||||
|
7 |
||||
|
8 |
||||
|
9 |
||||
|
10 |
