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Fort Wayne, Indiana – Design Basics, LLC of Omaha, Nebraska filed a copyright infringement lawsuit in the Northern District of Indiana. Defendants, located in Fort Wayne, are KAM Construction, LLC, KAM Construction, Inc., KAM AKAY Enterprises, LLC and Kamran Mirza, the owner of the three other Defendants.

Plaintiff Design Basics states that it is engaged in the business of creating, marketing, publishing and licensing the use of architectural works and technical drawings depicting those architectural works. At issue in this litigation are the following architectural works, which have been registered with the U.S. Copyright Office:

Title Registration Certificate Nos.
Plan No. 3064 – Eldridge VA 624-107, 624-108 & 1-093-811

Defendants in this lawsuit are Indiana homebuilders. They are accused of having published, distributed, marketed and advertised floor plans that infringe Plaintiff’s copyrighted works. Those accused plans are marketed by Defendants as Monte Carlo and Monte Carlo 3.

Indiana copyright attorneys for Plaintiff list a single cause of action: copyright infringement. The court has been asked to order damages, equitable relief, costs and attorneys’ fees.

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 Northern District of Indiana – Plaintiffs DISH Network LLC, EchoStar Technologies L.L.C. and NagraStar LLC, all of Englewood, Colorado, sued in the Northern District of Indiana contending that Defendants Paulette Kincaide and Linnis Kincaide of Gary, Indiana wrongfully intercepted satellite signals.

Defendants are accused of circumventing DISH Network’s security system and receiving copyrighted satellite programming without having paid the required subscription fee. Plaintiffs contend that this was accomplished by purchasing decryption keys from NFusion Private Server, a pirate television service.

In this Indiana lawsuit, filed by intellectual property lawyers for Plaintiffs, the following causes of action are alleged:

• Count I: Circumventing An Access Control Measure In Violation Of The Digital Millennium Copyright Act, 17 U.S.C. § 1201(a)(l)
• Count II: Receiving Satellite Signals Without Authorization in Violation of the Federal Communications Act, 47 U.S.C. § 605(a)

• Count III: Intercepting Satellite Signals in Violation of the Electronic Communications Privacy Act, 18 U.S.C. §§ 2511(1)(a) and 2520

Plaintiffs claim that Defendants’ actions have caused “actual and imminent irreparable harm for which there is no adequate remedy at law.” They further contend that violations were willful and for the purpose of commercial advantage or private financial gain.

Plaintiffs ask the federal court for an award of damages, including enhanced damages, as well as injunctive relief and reimbursement of costs, investigative expenses and attorneys’ fees.

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Indianapolis, Indiana – Patent attorneys for Plaintiff Interactive Intelligence, Inc. of Indianapolis, Indiana filed a lawsuit for declaratory judgment in the Southern District of Indiana against Defendant Avaya, Inc. of Santa Clara, California. At issue in this litigation is the proper scope of a patent licensing agreement between Plaintiff and Defendant.

In 2002, Interactive and Avaya agreed to license patents covering Avaya’s “call center” products. In exchange for this license, Interactive agreed to pay Avaya a royalty based upon Interactive’s sales. The patents-in-suit, which have been issued by the U.S. Patent and Trademark Office are as follows: U.S. Patent Nos. 5,802,058; 5,982,873; 6,009,386; 6,052,460; 6,173,399; 6,192,050; 6,208,970; 6,389,132; 6,392,666; 6,535,601; 6,560,330; 6,636,598; 6,665,395; 6,754,331; 6,850,602; 6,925,166; 7,023,980; 7,215,760; 7,542,558; 7,685,102; 7,702,083; 7,990,899; 8,107,401; 8,379,819; 8,897,428; 9,049,291; and 9,154,629.

In this federal complaint, filed by Indiana patent lawyers, Interactive states that, since 2002, its revenue has expanded to include many sources other than call center software, including “hardware resales, software maintenance and support, training, [and] subscription services for cloud based hosting.” It also contends that a “sizeable portion” of its revenue now comes from business outside of the United States.

Interactive claims that Avaya has misused its patents and misconstrued the agreement to require Interactive to pay royalties based on Interactive’s “global sales.” It argues that sales that are outside of the scope of Avaya’s patents, as well as at least some of its foreign sales, should not be subject to a royalty under the agreement. Interactive further asserts that Avaya’s “threats of potential patent infringement litigation resulted in Interactive paying significantly more than $1,000,000 in excess payments” under the agreement.

This lawsuit seeks a declaration of patent misuse by Avaya, as well as a declaration that Interactive does not infringe any of the patents asserted by Avaya. Interactive also seeks restitution and/or damages, costs and attorneys’ fees.

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The U.S. Trademark Office issued the following 221 trademark registrations to persons and businesses in Indiana in July 2016 based on applications filed by Indiana trademark attorneys:

Registration No.  Word Mark Click To View
5014973 10TH & MAIN TSDR
5014748 OLD 55 TSDR
5013063 HOT 97 FM TSDR
5014968 POTTY DUCK TSDR
5012989 THE ROCK OF ST. LOUIS TSDR
5014901 HOOSIER CONTRACTORS TSDR

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The U.S. Patent Office issued the following 130 patent registrations to persons and businesses in Indiana in July 2016, based on applications filed by Indiana patent attorneys:

Patent No. Title
1 D762,324 Stylized signature lamp 
2 9,400,256 Thermographic inspection techniques 
3 9,400,051 Cold operation mode control for an IVT 
4 9,400,045 Housing with a direct flow path for hardware lubrication 
5 9,399,889 Animal crate 
6 9,399,859 Magnetic coupling for faucet handle 
7 9,399,807 Acid and alkali resistant Ni–Cr–Mo–Cu alloys with critical contents of chromium and copper 
8 9,399,792 Sterilizable chemistry for test elements 
9 9,399,790 Stable NAD/NADH derivatives 
10 9,399,660 N-substituted indenoisoquinolines and syntheses thereof 

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Indianapolis, Indiana – Trademark attorneys for Eli Lilly and Company of Indianapolis, Indiana and Novartis Tiergesundheit AG of Basel, Switzerland filed a lawsuit in the Southern District of Indiana alleging trademark infringement and unfair competition.

Plaintiffs offer pet medications, such as flea-control and heartworm treatments, for sale in the U.S. and other countries worldwide. Among these medications are the following trademarked products, which have been registered by the U.S. Patent and Trademark Office:

ELANCO, registration number 710,473
COMFORTIS, registration number 3,370,168
INTERCEPTOR, registration number 2,015,850
CAPSTAR, registration number 2,510,863

TRIFEXIS, registration number 3,944,743

Plaintiffs allege that Defendants Scott Martin d/b/a Best Value Pet Supplies of Queensland, Australia and various unknown “Doe” Defendants infringed the trademarks at issue by selling in the U.S. trademarked products that were intended for sale in other countries via their website, www.bestvaluepetsupplies.com.

Plaintiffs contend that these products are materially different from products intended for sale in the U.S., citing differences such as different units of measure as well as non-U.S. addresses and telephone numbers listed on packaging as contact information.

In this Indiana trademark lawsuit, the following counts are alleged:

• Count I: Trademark Infringement in Violation of Section 32 of the Lanham Act
• Count II: Unfair Competition in Violation of Section 43(a) of the Lanham Act
• Count III: Unfair Competition in Violation of Indiana Common Law

Plaintiffs contend that Defendants’ conduct was willful and ask the court to order equitable relief, as well as the payment of compensatory and punitive damages, attorneys’ fees and costs of this litigation.

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The U.S. Supreme Court agreed to review a patent case on the law of laches (SCA Hygiene Products v. First Quality Baby Products, U.S., No. 15-927) and a case on the copyrightability of cheerleader uniforms (Star Athletica, L.L.C. v. Varsity Brands, Inc., U.S., No. 15-866).

Specifically, the question presented in SCA is:

“Whether and to what extent the defense of laches may bar a claim for patent infringement brought within the Patent Act’s six-year statutory limitations period, 35 U.S.C. § 286.” 
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Southern District of Indiana – Copyright lawyers for frequent litigant Design Basics, LLC of Omaha, Nebraska filed two additional intellectual property lawsuits in the Southern District of Indiana alleging copyright infringement.

Plaintiff is engaged in the business of creating, marketing, publishing and licensing the use of architectural works and technical drawings of those works. Defendants are Indiana home designers and homebuilders.

The first lawsuit lists Defendant as T.K. Constructors, Inc. of St. Delaware County, Indiana. In the second lawsuit, two Defendants are listed, Regal Homes of Southern Indiana, L.L.C. of Warrick County, Indiana and The Home Plan Co., LLC of Vanderburgh County, Indiana.

Each Defendant is charged with the violation of a single copyrighted work. Design Basics asserts that T.K. Constructors, Inc. violated the copyright Design Basics’ “Lancaster” plan, which has been registered with the U.S. Copyright Office under Registration Nos. VA 371-204, 694-094 and 756-041.

Defendants in the second lawsuit are accused of violating a copyrighted work titled “Briarwood,” which was registered under Reg. Nos. VA 624-144, VA 726-369 and VA 624-143. This complaint lists eight counts, four asserting “Non-Willful Copyright Infringement” and four alternatively asserting “Willful Copyright Infringement.”

Defendants in each lawsuit are accused of having infringed the copyrighted architectural works by “copying, publishing, distributing, advertising, marketing, selling and/or constructing in the marketplace” various works, such as plans, drawings and houses, that were copied or otherwise derived from Plaintiffs’ copyrighted works.

Plaintiff seeks damages, equitable relief, costs and attorneys’ fees.

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Evansville, Indiana – In the matter of Berry Plastics Corporation v. Intertape Polymer Corporation, Judge Richard L. Young of the Southern District of Indiana ruled on Defendant Intertape’s motion to reconsider the court’s conclusion of patent invalidity on the grounds of obviousness.

This Indiana patent litigation, filed in January 2010, sought a declaratory judgment of non-infringement of U.S. Patent No. 7,476,416 (the “‘416 patent”). Plaintiff Berry Plastics Corp. sued competitor Intertape Polymer Corp., which owns the ‘416 patent.

In the complaint, Berry asked the federal court to rule that it had not infringed the patent-in-suit, titled Process for Preparing Adhesive Using Planetary Extruder. In the alternative, it asked that the court rule that the patent was invalid and unenforceable. Among the reasons cited for this proposed conclusion were assertions that Intertape had engaged in improper conduct before the U.S. Patent and Trademark Office and that the patent was invalid as obvious.

The court held a jury trial in November 2014. The jury found, inter alia, that the ‘416 patent was not obvious. After the trial, the court heard additional argument on the issue of the validity of the patent and ruled for Berry, holding that the patent-in-suit was invalid as obvious.

In this recent entry, the court rules on Intertape’s motion to reconsider on the grounds that the court had ruled too broadly, inadvertently invalidating the entire patent instead of addressing only the asserted claims presented at trial. The court held that it was permitted under Fed. R. Civ. P. 54(b) to modify its previous order (“[A]ny order or other decision … that adjudicates fewer than all the claims …does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims …. “). It also concluded that, under Fed. R. Civ. P. 50, it had the authority to enter judgment against a party after a jury trial as long as “a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.”

The court first held that certain dependent claims had not been challenged as invalid at trial and, consequently, the court had no jurisdiction to rule on the validity of those claims. On these claims, it granted the motion to reconsider.

Regarding those dependent claims that had been asserted at trial, the court evaluated the evidence and testimony presented and concluded that the dependent claims added no patentable subject matter but were instead simply obvious selections of prior art used in an ordinary way. Consequently, the court denied Intertape’s motion to reconsider.

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Washington, D.C. – Reps. Hakeem Jeffries (D-NY), a member of the House Judiciary Committee, and Tom Marino (R-Pa) proposed legislation to create an alternative forum to facilitate the adjudication of “small” copyright claims. 

H.R. 5757, titled the Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2016, would establish a Copyright Claims Board (“CCB”) within the U.S. Copyright Office. Adjudication with the CCB is intended to be simpler and less expensive than proceeding in federal court. These cases would be heard by a CCB panel of three Copyright Claims Officers. Adjudicating in the CCB forum would be voluntary and respondents could opt out. 

The jurisdiction under CASE would be limited to civil claims of copyright infringement of $30,000 or less in damages. The CCB would also be authorized to hear claims of abusive takedown notifications under the Digital Millennium Copyright Act. 
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Contact Information
Indiana Intellectual Property: IP Litigation, Patents, Trademarks, Copyrights
  • Seventh Circuit
  • Northern District of Indiana
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Paul B. Overhauser
Overhauser Law Offices, LLC
Greenfield
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Greenfield, IN 46140
Phone: 317.467.9100
Fax: 866.283.8549
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