Indiana Intellectual Property Law News

December 19, 2016

Indiana Trademark Litigation: Founding Member of Museum Registers Trademark Under His Own Name, Sues Museum for Use

Evansville, Indiana – Richard Litov of Evansville, Indiana sued Freedom Heritage Museum, Inc., of Evansville, Indiana alleging trademark infringement. Litov asserts claims under both federal and Indiana law.

Litov claims that he conceived the idea for the museum – a collection of exhibits and artifacts from the World War II era – as well as the museum’s name, stating that he served as its founding president and a founding board member. He asserts that the museum used the trademarked name pursuant to permission that he granted “as president and board member” of the museum.

The trademark in question has been registered under Litov’s name as U.S. Trademark Registration No. 4,939,292. Litov states in his complaint that the registration covers the words FREEDOM HERITAGE MUSEUM and an associated design. The word portion of the trademark, as listed by the U.S. Patent and Trademark Office’s website, is FREEDOM HERITAGE MUSEUM, EST. 2012, EVANSVILLE INDIANA. The application for the trademark registration was filed on July 6, 2015 and granted on April 19, 2016.

December 16, 2016

Indiana Patent Litigation: Taiwan Plaintiffs Allege Infringement of Bike Rack

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Plaintiffs King Sheng Co., Ltd., which does business as Seiki, and David Tsai, both of Taiwan, initiated a patent infringement lawsuit in the Southern District of Indiana.

Defendant in this Indiana litigation is Hollywood Engineering, Inc. d/b/a Hollywood Racks of Los Angeles, California. It is accused of having infringed U.S. Patent No. 7,240,816 (“the ‘816 patent”), which relates to a bike rack for use on vehicles. Plaintiffs contend that Defendant“has made, imports, sells, offers to sell, and/or uses” numerous infringing products. The products at issue include items offered under model numbers HR200, HRT220, HR1000, HR1000R, HR1400, HR1450, HR1450E, HR1450R, HR1475, and Sunlite models 45815 and 45816.

Defendant is accused of having infringed the ‘816 patent directly and/or jointly with other entities, with the alleged infringement occuring literally and/or under the doctrine of equivalents. Plaintiff further contends that Defendant is liable under 35 U.S.C. § 271(b) for inducing infringement of the patent-in-suit and under 35 U.S.C. § 271(c) for contributory infringement. Stating that Defendant has had actual notice of the ‘816 patent since no later than 2009, Plaintiff also asserts that infringement of the ‘816 patent has been willful and deliberate.

December 15, 2016

Indiana Copyright Litigation: Allegations of Infringement of Movie Filed in Southern District

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Cook Productions, LLC of Los Angeles, California filed a lawsuit accusing unnamed Doe Defendants of copyright infringement. The lawsuit, filed in the Southern District of Indiana, mirrors another lawsuit filed by Cook Productions in the Northern District of Indiana.

The copyrighted work at issue is the motion picture “Mr. Church,” which features Eddie Murphy and Britt Robertson. The movie has been registered with the U.S. Copyright Office under Registration No. PA 2-002-851.

In this litigation, filed by a copyright lawyer for Plaintiff, the ten unnamed Doe Defendants are accused of having participated in a BitTorrent swarm to disseminate illegal copies of the movie. Plaintiff states that it used geolocation technology to trace Defendants to the Southern District of Indiana.

December 13, 2016

Supreme Court to Decide Whether Roche Exported Enzymes are “Substantial” Component of Product Made in UK

By Overhauser Law Offices, LLC

The Supreme Court on December 6, 2016, heard oral argument on whether the export by Roche, which has an office in Indiana, of an enzyme triggers patent infringement. Roche’s customer Life Technologies imported Roche’s “AmpliGold Plus” enzyme into the United Kingdom, and used it to build genetic testing kits. Life Technologies did not sell the kits in the US. However, Promega Corp. sued it for vicarious patent infringement (inducing or contributing to patent infringement) claiming that by purchasing enzyme in the US, Life Technologies violated 35 U.S.C. § 271(f)(1). This provision of the patent Act makes it an infringement to supply abroad “all or a substantial portion of the components.” The Federal Circuit had earlier held that the AmpliGold Plus enzyme, met the requirement of a “substantial” portion of the components. The Supreme Court seemed to agree that “substantial” may be ambiguous, but some Justices suggested that supply of a single component was more properly considered under Section 271(f)(2), which addresses the supply of a non-staple, specially made component. Promega distinguished (f)(1) and (f)(2) as exporting counterparts to Section 271(b) induced infringement and §271(c) contributory infringement, respectively. The transcript of the hearing is below.

Transcript-Life-v-Promega

December 12, 2016

Patent Office Issues 237 Patents To Indiana Citizens in November 2016

By Overhauser Law Offices, LLC

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.

The U.S. Patent Office issued the following 237 patent registrations to persons and businesses in Indiana in November 2016, based on applications filed by Indiana patent attorneys:

	Patent No.	Title
1	D772,754	Prelock prevention device for use with a web retractor
2	D772,691	Decorative layered rose
3	D772,626	Seat shell
4	9,509,847	System and method for language specific routing
5	9,509,824	Multi-phone programming application
6	9,509,154	Algorithmic battery charging system and method

December 8, 2016

Indiana Copyright Litigation: Unnamed Defendants Accused of Infringement of Eddie Murphy Movie

By Overhauser Law Offices, LLC

South Bend, Indiana – Plaintiff Cook Productions, LLC of Los Angeles, California sued 11 unnamed “Doe” Defendants in the Northern District of Indiana for infringing the copyrighted motion picture “Mr. Church.”

The movie, which features Eddie Murphy and Britt Robertson, tells the story of a lifelong friendship that began when a cook agreed to help a little girl and her dying mother. It was registered with the U.S. Copyright Office on August 29, 2016 under Registration No. PA 2-002-851.

In this Indiana lawsuit, a copyright attorney for Plaintiff contends that Mr. Church was unlawfully released on the internet and shared, potentially worldwide, using the BitTorrent file-sharing protocol. Defendants in this litigation are accused of having participated as part of a BitTorrent “swarm,” in which each Defendant shared portions of the movie with other Defendants, ultimately resulting in each Defendant obtaining a complete copy. Plaintiff asserts that it used geolocation technology to trace the Internet Protocol addresses of each Defendant to a point of origin within the Northern District of Indiana and that, consequently, jurisdiction in Indiana is proper.

December 7, 2016

193 Trademark Registrations Issued to Indiana Companies in November 2016

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 193 trademark registrations to persons and businesses in Indiana in November 2016 based on applications filed by Indiana trademark attorneys:

Registration No.	Word Mark	Click To View
5097638	NEGOTIATOR	TSDR
5095522	WE’VE GOT YOUR BACK	TSDR
5095457	KENRA	TSDR
5095293	PSNOB	TSDR
5095265	LET’S TALK ABOUT THE GORILLA IN THE ROOM	TSDR
5095098	ZYLO	TSDR
5090995	J U	TSDR

December 2, 2016

Supreme Court Will Review Federal Circuit Decision on International Patent Exhaustion

By Overhauser Law Offices, LLC

The Supreme Court on December 2, 2016, agreed to review an en banc Federal Circuit decision that no changes to the Federal Circuit’s law of patent exhaustion are required by the Supreme Court’s decisions in Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351 (2012), and Quanta Computer, Inc. v. LG Electronics, Inc., 553 U.S. 617 (2008). Impression Products, Inc., v. Lexmark International, Inc., U.S., No. 15-1189, cert. granted 12/2/2016.

En Banc Federal Circuit Decision

In a 10-2 decision, the en banc Federal Circuit held that a patentee, when selling a patented article subject to a single-use/no-resale restriction that is lawful and clearly communicated to the purchaser, does not by that sale give the buyer, or downstream buyers, the resale/reuse authority that has been expressly denied. 816 F.3d 721 (2016). It also held that a U.S. patentee, merely by selling or authorizing the sale of a U.S.-patented article abroad, does not authorize the buyer to import the article and sell and use it in the United States, which are infringing acts absent patentee-conferred authority. Judge Dyk filed a dissenting opinion, which was joined by Judge Hughes, generally agreeing with the position argued in the government’s amicus brief.

The Justice Department told the Federal Circuit (and later the Supreme Court in urging review) that foreign sales may exhaust patent rights unless the patentee reserves its rights, and that Mallinckrodt Inc. v. Medipart, Inc., 976 F.2d 700 (Fed. Cir. 1992), should be overruled because it erroneously held that patentees can impose servitudes on chattels with post-sale restrictions.

November 30, 2016

Indiana Patent Litigation: Alcon Alleges Infringement of Eye Drug by Generic Drugmaker

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Alcon Research, Ltd. of Fort Worth, Texas and Alcon Pharmaceuticals Ltd. of Fribourg, Switzerland filed an intellectual property lawsuit in the Southern District of Indiana. They assert infringement of two patents covering Pataday®, an ophthalmic pharmaceutical. Pataday is covered by U.S. Patent Nos. 6,995,186 (the “‘186 patent”) and 7,402,609 (the “‘609 patent”).

Untitled
Defendant Akorn, Inc., a generic drugmaker based in Lake Forest, Illinois, filed an Abbreviated New Drug Application (“ANDA”) with the U.S. Food and Drug Administration seeking approval to manufacture and sell a generic version of Plaintiffs’ drug prior to the expiration of the two patents-in-suit. Plaintiffs contend that the submission of this ANDA is an act of patent infringement.

In this Indiana complaint, patent lawyers for Alcon ask the court to adjudicate the following:

November 29, 2016

Indiana Trademark Litigation: Klipsch Sues Alleged “Gray Market” Seller of Klipsch Products

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Klipsch Group, Inc. of Indianapolis, Indiana filed a trademark infringement lawsuit in the Southern District of Indiana. It alleges infringement of several trademarks protecting the Klipsch® mark.

Listed as sole Defendant in this lawsuit is Robert Pignari of Costa Mesa, California, who does business as Main St. Electronics. Pignari also maintains an Amazon.com presence under the name “Audio Video Sales Guy.”

Klipsch accuses Defendant Pignari, who is not an authorized Klipsch distributor, of selling Klipsch products without its permission. Pignari is further accused of removing the correct serial numbers from the shipping boxes of the Klipsch products he sells and replacing them with fake serial numbers. Because Klipsch voids a product’s warranty in such cases, Pignari’s customers have purchased Klipsch products advertised as “brand new” but which carry no warranty from Klipsch.