Indiana Intellectual Property Law News

August 1, 2012

Attorneys’ Fees Awarded to Defendant in Trade Secrets Case

Indianapolis IN. Lawyers representing the defendant, Loparex, LLC were awarded their attorneys’ fees in a trade secret infringement case filed against it by MPI Release, LLC. Loparex had previously filed a trade secret case in Illinois against one defendant, Mr. Kerber. However, when Loparex sought a temporary restraining order in the case, the Illinois judge told Loparex that “I don’t think you have identified protectable trade secrets.This is a very broad list of claimed secrets, supposedly, that I think largely are under the umbrella of skill that he has developed having worked in this industry for such a long time.” Shortly after that hearing, Loparex dismissed the Illinois suit and then filed a new suit in Indiana, which added defendant, MPI Release and another person as a defendant.

When Loparex sought a preliminary injunction in the Indiana case, the Court commented stating, “You brought this lawsuit and have the burden of proof, and you have a particularized burden here with a request for a preliminary injunction to show that specific trade secrets were misappropriated.” Following this comment, Loparex withdrew its motion citing its inability to establish “actual misappropriation”, despite “substantial discovery.” The Court later granted a summary judgment in favor of the defendants, and the defendant MPI sought to recover its attorneys’ fees.

The Court found that MPI was entitled to recover its attorneys’ fees under the Illinois Uniform Trade Secrets Act because the claim had been made “in bad faith.” In addition, the defendants separately sought attorneys’ fees under 28 USC § 1927, which allows an award of attorneys’ fees against an attorney “who so multiplies the proceedings in any case unreasonably and vexatiously.” The Court found the case suitable for an award of attorneys’ fees under 28 USC § 1927. Significantly, the Court held one of Loparex’s attorneys personally liable for MPI’s attorneys’ fees, stating, “He could and should have intervened when MPI sought a take-no-prisoners litigation strategy. As an enabler of the client’s unreasonable litigation desires, he becomes personally liable for them too.” Accordingly, Loparex’s attorney was found liable for MPI defendant’s attorneys’ fees, $475,332.70.

Practice Tip:

This ruling is significant because it is rare for a Court to award sanctions under 28 USC § 1927. It appears the Court found it significant that plaintiff asserted the claims even though it had dismissed the same claim filed previously in an Illinois court. Loparex also sought to avoid sanctions under 28 USC § 1927 by arguing that the defense counsel had alleged unclean hands, namely “unreasonably aggressive litigation from the other side.” The Court did not consider that argument, rejecting “and if you can do it, I can do it too” attitude towards litigation misconduct. The Court instead stated that the plaintiff, Loparex, or its attorney, Mr. Pautsch, should have filed a § 1927 motion against defense counsel when it established unreasonable behavior on defense counsel’s part.

July 31, 2012

CP Productions, Inc. Sues John Doe for copyright Infringement of Video: “GH Hustlers – Maryjane’s Second Visit”

By Overhauser Law Offices, LLC

Indianapolis IN – Copyright lawyers for CP Productions, Inc. of Phoenix, AZ filed a copyright infringement declaratory judgment suit in alleging John Doe, an alleged serial infringer known at this time only by an IP address, infringed the copyrighted work “GH Hustlers – Maryjane’s Second Visit” which has been registered by the US Copyright Office.

In the complaint filed by attorneys for CP Productions, John Doe and other un-named parties are believed to have infringed a copyrighted video belonging to CP Productions. CP Productions is a producer of adult entertainment and seeks judgment against John Doe and others for the alleged serial infringement of the video “GH Hustlers–Maryjane’s Second Visit” to which the Plaintiff owns the copyright. John Doe and the joint tortfeasers are not known by name but rather, through their IP address and attorneys for CP Productions will be filing a Motion for Leave to Take Discovery in order to ascertain the actual identities of the Defendants from their ISPs. CP Productions is seeking judgment from counts including copyright infringement, civil conspiracy, and contributory infringement. CP Productions claims to have observed John Doe’s infringing multiple copyrighted content through agents the Plaintiff has employed using the BitTorrent protocol because the Plaintiff employs P2P netword forensic software to provide real time monitoring of the BitTorrent swarm that distributes the video. This software allowed CP Productions to log John Doe and the joint tortfeasers unlawful activities. CP Productions further alleges that John Doe and the joint tortfeasers intentionally downloaded a torrent file particular to the Plaintiff’s video, purposefully uploaded the torrent into their BitTorrent clients and entered a BitTorrent swarm particular to the Plaintiff’s video and reproduced and distributed the copyrighted video among themselves and third parties thereby becoming both and uploader and downloader of the video. By doing so, CP Productions claims that this “ever growing swarm will jointly contribute to the complete download of the Video for all individuals that enter the swarm at any given moment.” CP Productions believes that this lawsuit is the only practical means by which to combat BitTorrent based infringement. Because the damage claimed by CP Prodcutions includes economic and reputation losses, to which Plaintiff asserts will continue, the Complaint sets out demand for actual or statutory damages allowed under the Copyright Law, compensatory damages for the counts of civil conspiracy and contributory infringement, and an order or impoundment for all copies of Plaintiff’s works, photographs or other materials in the Defendant’s possession or control.

Practice Tip: The BitTorrent protocol is a decentralized method that allows users to distribute data via the Internet, and has become an extremely popular method for unlawful copying, reproducing and distributing files in violation of the copyright laws. Where this market was once consumed by music copyright violations, the adult entertainment industry has seen an increase in litigation against infringers using BitTorrent-based technology. Although no concrete rules govern jurisdiction of the Internet, Indiana’s long arm statute (Indiana Rule of Trial Procedure 4.4) permit personal jurisdiction of Defendants if they either downloaded or uploaded the copyrighted material.

July 30, 2012

SCR Solutions Sues H2O Underpressure, Inc. For Patent Infringement of Manual SCR Catalyst Cleaning Method

By Overhauser Law Offices, LLC

Indianapolis; IN – Patent attorneys for Michael Ware, President of SCR Solutions of Madison, Indiana filed a patent infringement suit in alleging H2O Underpressure, Inc., of Dale, Wisconsin infringed provisional patent application no. 61,633,642, MANUAL SCR CATALYST CLEANING METHOD which has been filed with the US Patent Office.

On May 11, 2012, Michael Ware, President of SCR Solutions, filed the Complaint pro se against H20 Underpressure for willful patent infringement. The Complaint alleges that H2O Underpressure infringed, and continues to do, the Manual SCR Catalyst Cleaning Method by using it and selling it to the Duke Energy East Bend Power Plant in Union, Kentucky. SCR Solutions is also alleging that H20 Underpressure had previous knowledge of the ownership of the patent pending process and “conspired to steal and use so without written agreement or intention to compensate the owner” for the sale and use of the Manual SCR Catalyst Cleaning Method. SCR solutions claims to have complied with the statutory requirement of placing notice of the patent on all Manual SCR Catalyst Cleaning Method sells and also giving H2O Underpressure written notice of the infringement. SCR Solutions is seeking to enjoin H2O underpressure from using and selling the Manual SCR Catalyst Cleaning Method by demanding a preliminary and permanent injunction against the continuing infringement and damages.

July 27, 2012

U.S. Patent Office Publishes Rules Implementing the America Invents Act

By Overhauser Law Offices, LLC

Washington, DC. On Thursday, July 26, 2012, the United States Patent Office published in the Federal Register proposed rules and proposed examination guidelines for the first-inventor-to-file provision of the America Invents Act. The first-inventor-to-file provision converts the United States from a “first-to-invent” to a “first-inventor-to-file” system. The proposed rules and proposed examination guidelines amend the rules of patent practice to implement the conversion and show the Office’s interpretation of how the conversion impacts sections of the Manual of Patent Examining Procedure related to novelty and obviousness. The proposed rules and proposed examination guidelines are accessible here:

First-Inventor-to-File Proposed Rules (77 Fed. Reg. 43742, July 26, 2012)

First-Inventor-to-File Proposed Examination Guidelines (77 Fed. Reg. 43759, July 27, 2012)

July 2, 2012

152 Trademark Registrations Issued to Indiana Companies in June, 2012

By Overhauser Law Offices, LLC

The US Trademark Office issued the following 152 trademark registrations to persons and businesses in Indiana in June, 2012 based on applications filed by Indiana Trademark attorneys:

	Serial Number	Mark	Click to View
1	4,163,724	AUCTIONTRAC	View
2	4,155,354	ICONIC	View
3	4,152,511	C CENTER FOR A SECURE RETIREMENT	View
4	4,164,736	MAMMOGRAM A FRIEND	View
5	4,165,913	TORQUE	View

July 1, 2012

Patent attorneys obtained issuance of 121 patent from the US Patent Office in Indiana in June, 2012

By Overhauser Law Offices, LLC

Indiana patent attorneys obtained issuance of the following 121 patents from the US Patent Office to persons and business in Indiana in June, 2012.

June 27, 2012

194 Trademark Registrations Issued to Indiana Companies in May, 2012

By Overhauser Law Offices, LLC

The US Trademark Office issued the following 194 trademark registrations to persons and businesses in Indiana in May, 2012, based on applications filed by Indiana Trademark Attorneys:

	Registration No.	Mark
1	4149541	ESENSE INCORPORATED IN EVERYTHING WE DO	VIEW
2	4151667	COOL CURE 365	VIEW
3	4150758	PRESS GANEY OUTCOMES DRIVEN. PERFORMANCE STRONG.	VIEW
4	4141938	JOURNEY FORWARD	VIEW
5	4150205	BODY ENVY	VIEW
6	4150167	SLUMBER MAX	VIEW
7	4150109	OA	VIEW
8	4150083	DON’T BE A TOOL – RENT ONE	VIEW
9	4150077	CTEMS	VIEW
10	4150057	WELLFOUNT	VIEW

June 27, 2012

U.S. Supreme Court Will Hear Copyright Case over Gray Market Goods

By Overhauser Law Offices, LLC

Washington, D.C.: The Supreme Court has recently decided to hear a case that could reconcile two competing sections within The Copyright Act–section 602(a)(1) which prohibits the importation of a work without the authority of the owner and section 109(a) which allows copyrighted works to be sold without the copyright owner’s permission–which will determine the applicability of foreign copyright owners’ control of the sale and distribution of their work.

On April 16, 2012 the Supreme Court Granted cert in the case of Kirtsaeng v. John Wiley & Sons in an attempt to resolve the issue of the copyright protections of gray market goods. Reuters.com reports that Kirtsaeng, a graduate student at The University of Southern California, is from Thailand and had his family purchase textbooks cheaply overseas and then shipped to him. He then resold them on eBay for a profit, in order to make money for school. According to Kirtsaeng’s petition for cert, he claims to have researched the Copyright Law including the Doctrine of First Sale, section 109(a), and felt that it was applicable to him. However, John Wiley & Sons, whose Asian subsidiary produced some of the books sold, disagreed with the interpretation and filed an infringement suit in 2008. Although Kirtsaeng profited $37,000 from the Sale of books produced by John Wiley & Sons, a jury found him liable of infringement and imposed damages of $600,000.

According to SCOTUSblog.com, the 2nd Circuit upheld the ruling, stating that the Doctrine of First Sale only applies to U.S. made goods. In their ruling, the 2nd circuit applied the Costco Wholesale Corp. v. Costco case, in which the court split 4-4 in its decision to apply the Doctrine of First Sale to U.S. made goods sold by businesses, and extended its reach to individuals as well. When the Supreme Court hears Kirtsaeng’s case, it will seek to resolve the discrepancy in the Copyright Law and the issue of whether the Copyright Law applies to a copy that was made and legally acquired abroad and then imported into the United States, SCOUTUSblog.com reports. According to supremecourt.gov, the time for the parties to file their briefs on the merits has been extended until August 31, 2012. The case will be heard next term, reports abajournal.com.

June 27, 2012

Patent attorneys obtained issuance of 168 patents from the US Patent Office in Indiana in May, 2012

By Overhauser Law Offices, LLC

Indiana patent attorneys obtained issuance of the following 168 patents from the US Patent Office to persons and business in Indiana in May, 2012.

Patent No. Title

1	D660,961	Varus/valgus resection guide set
2	D660,687	Accessory post
3	D660,631	Soap dispenser
4	8,188,883	Utility meter with communication system displays
5	8,188,292	Insecticidal N-substituted (heteroaryl)alkyl sulfilimines
6	8,188,273	Insecticidal (1,3,5)-triazinyl phenyl hydrazones
7	8,188,069	Azepine derivatives as gamma-secretase inhibitors
8	8,188,038	Osteogenic compositions containing a coloring agent
9	8,187,619	Enhanced compositions containing cells and extracellular matrix materials
10	8,187,543	Electrochemical gas sensor with a hydrophilic membrane coating
11	8,187,537	Diagnostic test unit with a container for test carriers
12	8,187,477	Methods and apparatus for isolating platelets from blood
13	8,187,475	Method and apparatus for producing autologous thrombin
14	8,187,453	Triglyceride and cholesterol sensing method and sensor

June 27, 2012

APP Press Sues Apress Media for Declaration of Non- Infringement of Trademark “App Press”

By Overhauser Law Offices, LLC

Indianapolis; IN – Trademark attorneys for App Press, LLC of Indianapolis, Indiana filed a declaratory judgment suit seeking a declaration that it is not infringing the trademarks of Apress Media, LLC of New York, New York.

App Press, LLC brings action against Apress Media, LLC in order to protect the right to use and continue to conduct business under the registered trademark, and asserts that use of the mark for App Press does not infringe on any trademark held by Apress. App Press is a company that creates, owns, and licenses the use of web-based software that allows consumers to create apps that can be used on mobile devices. According to the Complaint, App Press applied for trademark registration on January 7, 2011 and was registered by the United State Patent and Trademark Office on August 9, 2011. During this period, the trademark was open to opposition on May 24, 2011. Apress Media is a publishing company that edits, publishes and sells books with the focus on technological issues and how-to advice. Apress Media applied for trademark registration on May 7, 2010 and was registered on March 8, 2011. According to App Press, on August 15, 2011, Apress Media sent a cease and desist letter demanding App Press immediately stop the use of their trademark alleging that it infringed on the trademark of Apress and constituted trademark infringement, unfair competition, cyberpiracy and dilution. App Press claims that they forwarded the letter to their counsel who contacted Apress Media’s counsel by phone. Almost two weeks passed that counsel for both parties went back and forth via telephone before they were able to confer regarding the issues set forth in the letter in which App Press agreed and sent a letter describing their product and why it was not infringing on Apress Media’s trademark. Approximately eight months later, on May 8, 2012, Apress again contacted App Press and again asserted that App Press’s use of the App Press trademark was infringing on the Apress trademark. Counsel for App Press has filed the Complaint for declaratory relief and to obtain declaration that App Press’s use of their trademark does not infringe upon any trademarks owned by Apress Media.

Practice Tip: The remedy of declaratory judgment is found in 28 U.S.C.A. § 2201 and allows for any US court to declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.
Continue reading

	PAT. NO.	Title
1	D662,685	Vault
2	D662,681	Aluminum extrusion
3	D662,502	Tablet computer cradle
4	D662,441	Spindle vase
5	8,208,265	Circuit board retainer
6	8,207,494	Laser ablation flowing atmospheric-pressure afterglow for ambient mass spectrometry
7	8,207,362	Bio-fuel and process for making bio-fuel
8	8,207,344	GPR119 agonists
9	8,206,983	In vitro methods for the induction and maintenance of plant cell lines as single suspension cells with intact cell walls
10	8,206,648	Liquid container with an extraction chimney
11	8,206,565	System and method for coding information on a biosensor test strip
12	8,206,455	Hip stem prosthesis