Indiana Intellectual Property Law News

February 23, 2017

Indiana Patent Litigation: Lilly Sues TWi Pharmaceuticals for Patent Infringement

Indianapolis, Indiana – A patent lawyer for Eli Lilly and Company of Indianapolis, Indiana, Eli Lilly Export S.A. of Geneva, Switzerland and Acrux DDS, Pty Ltd. of West Melbourne, Australia filed an intellectual property lawsuit in the Southern District of Indiana.

Two Defendants are listed, TWi Pharmaceuticals, Inc. of Paramus, New Jersey and TWi Pharmaceuticals USA, Inc. of Taipei, Taiwan. In a 28-count complaint, Defendants are accused of infringing seven patents by filing an Abbreviated New Drug Application with the U.S. Food and Drug Administration for approval of a generic version of the pharmaceutical product Axiron® before the expiration of the patents under which the drug is protected. The patents at issue in this litigation are U.S. Patent Nos. 8,435,944; 8,993,520; 9,180,194; 8,419,307; 8,177,449; 8,807,861 and 9,289,586.

The counts against Defendants include “direct patent infringement,” “inducement to infringe” and “contributory infringement” as well as counts requesting declaratory judgment. Lilly et al. are seeking declaratory relief, injunctive relief, costs and attorney fees.

February 21, 2017

Indiana Trademark Litigation: Vendors of Tanning Products in Dispute over “Beachin’ Life” Trademark

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Australian Gold, LLC of Indianapolis, Indiana sued in the Southern District alleging trademark infringement and unfair competition.

Plaintiff Australian Gold, which manufactures, distributes and sells tanning preparations, claims ownership to U.S. Federal Trademark Registration No. 5,130,366 for BEACHIN’ LIFE. It states that it has used this trademark since “at least 2016”; the trademark was issued by the U.S. Patent and Trademark Office on January 24, 2017.

Defendant in this Indiana lawsuit is Devoted Creations, Inc. d/b/a Ed Hardy Tanning of Oldsmar, Florida. Devoted Creations has introduced and is selling a #BEACHLIFE tanning preparation for the indoor tanning market.

February 17, 2017

Indiana Trademark Litigation: Trademark Dispute Between Two Veterans’ Museums Heads to Federal Court

By Overhauser Law Offices, LLC

Evansville, Indiana – Henager Family Museum, Inc d/b/a National Veterans Memorial of Buckskin, Indiana filed a lawsuit in the Southern District of Indiana alleging trademark infringement.

Plaintiff operates a military memorial in Indiana under the trademark “NATIONAL VETERANS MEMORIAL,” U.S. Trademark Registration No. 3,420,974. That trademark was filed “in connection with promoting public awareness of the need for reconciliation and recognition by all veterans” and was issued on April 29, 2008 by the U.S. Patent and Trademark Office.

In this Indiana litigation, Henager states that Columbus Downtown Development Corp. (“CDDC”) of Columbus, Ohio is currently developing a museum, scheduled to open in 2018, to be operated under the name “NATIONAL VETERANS MEMORIAL & MUSEUM.” Henager states that CDDC’s use of this name in a state adjoining Indiana, and in conjunction with the offering of the same type of services, is likely to cause confusion or deceive consumers. It also contends that CDDC’s use of the purportedly similar name has resulted in CDDC being unjustly enriched at Henager’s expense.

February 16, 2017

An Overview of Copyright Law

By Overhauser Law Offices, LLC

What is copyright?

Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.

What does copyright protect?

February 15, 2017

Seventh Circuit Trade Dress Law: District Court Finds Functionality as a Matter of Law; Seventh Circuit Affirms

By Overhauser Law Offices, LLC

Chicago, Illinois – Arlington Specialties, Inc. of Elk Grove Village, Illinois appealed the summary judgment granted by the U.S. District Court of Northern Illinois, Eastern Division in favor of Urban Aid, Inc. of Los Angeles, California.

The plaintiff’s and defendant’s bags are shown on the last page:

The Seventh Circuit does not issue trade dress opinions very often, but it issued one January 27, 2017. It is especially helpful because it sums up the state of trade dress law in the Circuit.

February 8, 2017

Indiana’s TC Heartland Puts Patent Infringement “Forum Shopping” Issue Before Supreme Court

By Overhauser Law Offices, LLC

The Class Action Fairness Act of 2005, was intended to limit “forum shopping” of class actions lawsuits, or in a court where the law was most favorable to the plaintiff, even if the location was not connected with the underlying facts. However, the Act did not generally apply to patent infringement cases. As a result most patent infringement suits (44% in 2015) are filed in the Eastern District of Texas, which has a reputation for juries that award large verdicts. When a suit is filed there, there is much pressure on a defendant to settle even if the patent owner’s case is weak.

Carmel Indiana’s T.C. Heartland hopes to limit forum shopping. It was sued for patent infringement by Kraft Foods, and the case is now before the U.S. Supreme Court granted certiorari last month on appeal from the Federal Circuit. The dispute revolves around whether the US Court of Appeals for the Federal Circuit opened the floodgates to forum-shopping in 1990 when it adopted an ultra-liberal interpretation of where a defendant business “resides” – and in the proposed solution, which is to interpret Congress’s 2011 amendments to a general venue statute as having implicitly overruled the 1990 ruling.

The American Intellectual Property Law Association has filed an “amicus” brief arguing that the Federal Circuit correctly interpreted the general venue statute at 28 U.S.C. 1391 as providing a definition of “resides” in the patent venue statute at 28 U.S.C. 1400(b) Although the Supreme Court in Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957), found the two statutes worked independently, Congress changed the law in 1988 by adding to the general venue statute “for purposes of venue under this chapter.” According to the brief, the deletion of that phrase in 2011 did not return the law to the Fourco rule because it was replaced with the phrase “for all venue purposes.” Nor does the added phrase “except as otherwise provided by law” adopt the Supreme Court’s Fourco rule, the brief concluded. The AIPLA’s amicus brief is below.

February 3, 2017

217 Trademark Registrations Issued to Indiana Companies in January 2017

By Overhauser Law Offices, LLC

Overhauser Law Offices the publisher of this site, assists with US and foreign trademark searches, trademark applications and assists with enforcing trademarks via infringement litigation and licensing.

The U.S. Trademark Office issued the following 217 trademark registrations to persons and businesses in Indiana in January 2017 based on applications filed by Indiana trademark attorneys:

Registration No.	Word Mark	Click To View
5114184	AKESOCARE	TSDR
5113123	AKESOCARE	TSDR
5133813	BIOSTOP	TSDR
5133682	A STUDENT UNION FOR ADULTS	TSDR
5133485	CLOSET CANDY BOUTIQUE	TSDR
5133340	TRUCONTOUR	TSDR

February 2, 2017

Patent Office Issues 216 Patents To Indiana Citizens in January 2017

By Overhauser Law Offices, LLC

The U.S. Patent Office issued the following 216 patent registrations to persons and businesses in Indiana in January 2017, 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	9,560,215	System, method, and computer-readable medium for rebilling a carrier bill
2	9,558,682	Tamper evident security seal
3	9,557,356	Utility meter with wireless pulse output
4	9,557,325	Method of altering the binding specificity of proteins by oxidation-reduction reactions
5	9,557,274	Analytical devices for detection of low-quality pharmaceuticals

January 23, 2017

U.S. Court of Appeals Rules In Lilly’s Favor on Alimta Vitamin Regimen Patent

By Overhauser Law Offices, LLC

Indianapolis, Indiana – The U.S. Court of Appeals for the Federal Circuit has upheld the district court’s decision and ruled in favor of Eli Lilly regarding validity and infringement of the vitamin regimen patent U.S. Patent No. 7,772,209 for Alimta® (pemetrexed for injection).

In the case of Eli Lilly and Company v. Teva Parenteral Medicines, Inc., et al., the court affirmed the earlier district court’s rulings that the vitamin regimen patent is valid and would be infringed by the generic challengers’ proposed products. If the patent is ultimately upheld through all remaining challenges, Alimta would maintain U.S. exclusivity until May 2022, preventing marketing of generic products for as long as the patent remains in force. The Alimta compound patent remains in force through January 24, 2017.

In March 2014, the U.S. Court for the Southern District of Indiana upheld the validity of the vitamin regimen patent. In August 2015, the same court ruled in Lilly’s favor regarding infringement of the vitamin regimen patent.

January 20, 2017

Indiana Court of Appeals Rules on Irreparable Harm in Breach of Non-Compete/Non-Solicitation Agreements

By Overhauser Law Offices, LLC

Indianapolis, Indiana – The Indiana Court of Appeals affirmed the judgment of the Marion Superior Court in litigation between two civil engineering firms, Plaintiff American Structurepoint Inc. and Defendant HWC Engineering Inc. Three former employees of ASI, also listed as Defendants in the trial court, were listed in this appeal.

This dispute arose in 2014 when ASI employee Martin Knowles left ASI to join HWC as its vice president of operations. Jonathan Day and David Lancet also left ASI to begin employment at HWC.

These former ASI employees had entered into noncompetition and non-solicitation agreements with ASI. Despite these agreements, ASI contended in a lawsuit filed in Indiana state court that its former employees engaged in various acts prohibited by the agreements. ASI claimed that Day had created a list of ASI employees whom he believed might be interested in leaving to join HWC. ASI also asserted that Day subsequently shared that list with Knowles and called various ASI employees regarding employment with HWC. ASI alleged that a total of six job offers were made by HWC to ASI employees. ASI further introduced evidence that Knowles engaged in prohibited business-development activities with ASI clients to ASI’s detriment.