Intellectual Ventures I, LLC et al. v. Netapp, Inc. (16-cv-10860/10868).

Intellectual Ventures accused NettApp’s MetroCluster Fabric Attached systems of infringing U.S. Patent No. 6,516,442, which covers aspects of symmetric multi-processor types of computer architecture by which multiple processors share a common operating system and memory. Each asserted claim required certain components of the system to “perform error correction of the data in the packets exchanged over the channels.” NettApp asserted that the MetroCluster products, which allow for continuous back-up of data to separate locations, do not satisfy this “error correction” limitation, as the term had been construed. Judge Saris granted NettApp’s motion for summary judgment of non-infringement. She had construed the term to mean “correcting errors in data by at least reconstructing erroneous data,” rejecting Intellectual Ventures proposal that the term be construed broadly enough to encompass the correction of errors using a retry request. The MetroCluster systems break down data packets into sub-packets, to which an error detection code is appended. The system discards data in which an error is detected and then retransmits the data. Once the correct data has been received, the system puts the sub-packets back together into a complete packet. Intellectual Ventures asserts that this re-assembly of the sub-packets into full packets satisfies the “reconstruction” aspect of the limitation; Judge Saris disagreed, however, finding that her construction of the “error correction” limitation unambiguously excluded a system that exclusively addressed errors through a retry procedure. She also noted that the reassembly process utilized by the MetroCluster systems was not a part of handling errors, as such reassembly occurs whether an error is detected or not.

Yourfavorite.com et al. v. Federation of Exchange Accommodators et al. (20-cv-10649).

Richard Rogers, who runs Yourfavorite.com., accuses Federation of Exchange Accommodators (FEA) and a number of individuals of having wrongfully taken his copyrighted material for use on its own website. Rogers asserts that FEA’s publication titled “Member Guide to Internal Controls and Procedures for Handling Exchange Funds” contains material duplicated from an article he authored on 2007, titled “Reasons for Return.” He states that the infringement is willful and knowing, and that the Defendants ignored his cease and desist letter. The case is before Judge Casper.

Mugraby v. UndercoverWear, Inc. (20-cv-10641).

Israeli photographer Sam Mugraby, who operates through his business Photos5.com, accuses UndercoverWear of infringing his copyright in a photograph entitled “Heart in the Sky” by placing a copy of the image in its website. Mugraby asserts copyright infringement and removal of copyright management information.

Tawa Supermarket, Inc. d/b/a 99 Ranch Market v. 99 Asian Supermarket (20-cv-10637).

99 Ranch, an Asian supermarket, operates 53 stores in the United States, including their most recent store in Massachusetts (which just opened in January). The store has utilized a red “99” surrounded by green laurel leaves as a mark, as well as the name “99 RANCH MARKET” for thirty years, and has registrations on both. 99 Ranch asserts that 99 Asian Supermarket opened a store in Malden that utilizes a red 99 surrounded by green laurel leaves in an attempt to capture 99 Ranch customers, and that “99 Asian Supermarket” infringes the 99 RANCH MARKET mark. 99Ranch asserts trademark counterfeiting under 15 U.S.C. 1114(a), state and federal trademark infringement, state and federal unfair competition, and state federal trademark dilution.

Sonohm Licensing LLC v. Superlogics, Inc. (20-cv-10642).

Sonohm accuses Superlogics of infringing two patents, U.S. 6,651,207, related to improved voice quality in cordless communications utilizing frequency hopping, and U.S. 7,106,705, which is directed to methods and systems for transmitting data for multiple services via jointly used physical channels. The ‘207 patent is expired, while the ‘705 patent remains in effect only through May 2021. According to the assignment records of the PTO, Sonohm acquired both patents in September 2019, after the ‘207 patent had expired. Since then, Sonohm has filed seventeen infringement suits involving the two patents, nine of which settled within about six months. The case has been assigned to Judge Burroughs.

Larson v. Perry et al. (19-cv-10203).

Sonya Larson sued Dawn Dorland Perry, seeking a declaratory judgment that a story written by Larson did not infringe Perry’s copyright in a similar story, and sued Perry, her attorney and his law firm for defamation and tortious interference with contractual relationships when Larson’s publisher was threatened with a lawsuit if they continued to publish Larson’s story. Perry’s lawyer, Jeffrey Cohen, and his California firm, Cohen Business Law Group, moved to dismiss for lack of personal jurisdiction, which Judge Talwani denied. She noted that Cohen Law had sent letters to BFF in Cambridge, MA, alleging that Larson’s story plagiarized Perry’s letter and that publication would infringe on Perry’s rights, and threatened statutory damages of up to $150,000 should BFF publish. Larson alleges that this letter knowingly misrepresented both the facts and the law such that it constituted an unfair or deceptive trade practice under Massachusetts law and was designed to interfere with her agreement with BFF. As this behavior was targeted to a Massachusetts company for the purpose of affecting BFF’s business decision. This therefore is sufficient to establish specific personal jurisdiction.

Cohen and his firm also moved for dismissal on the grounds that, as a matter of law, their alleged conduct is shielded by Massachusetts’ litigation privilege. An attorney’s statements in the Commonwealth are absolutely privileged where such statements are made by an attorney engaged in his function as an attorney whether in the institution or conduct of litigation or in conferences and other communications preliminary to litigation. Where the communication is to a prospective defendant, however, the anticipated litigation must be contemplated in good faith, and does not allow a lawyer the freedom to act with impunity. While lawyers cannot be held liable for the contents of their speech, that speech can be used as evidence of misconduct, with the line between the two determined on a case by case basis. In this case, the complaint asserts that the Cohen letter was used to effectuate unlawful ends, rather than looking to establish liability based on the content standing alone, and Judge Talwani determined that the good faith of the Cohen firm could not be determined on the pleadings. Accordingly, she refused to dismiss based on litigation privilege.

Judge Talwani denied Perry’s moved to dismiss on the grounds that defamation was not properly pled and that Larson failed to plead actual malice, a requirement under Massachusetts defamation law when the plaintiff is a limited purpose public figure. The complaint identified instances in which Perry is alleged to have told several writing organizations, Larson’s employer, and a writing organization where Larson sought a fellowship that Larson plagarized her work, providing Perry with enough specificity to mount a defense. Regarding the “limited public figure” issue, Judge Talwani noted that while the issue is one of law, it is inherently fact-specific such that it cannot be determined on the pleadings.

Judge Talwani granted Perry’s motion to dismiss the tortious interference counts. The complaint alleged that, as a result of Perry’s conduct, two publishers decided to pull Larson’s story from their website earlier than call for by the contracts between Larson and the two. Ordinarily, this would be sufficient to survive a motion to dismiss. Here, however, the two contracts were included as exhibits to the complaint and could thus be fairly considered in determining the motion. In reviewing the contracts, neither included the promises alleged in the complaint that the story actually be published or remain on available for any particular length of time.

As a note, Judge Talwani denied Perry’s request for a hearing on her motion, finding that the coronavirus crisis combined with the Court’s determination that it could properly adjudicate the issue on the papers weighed against a hearing.

COVID’s Effects on IP – Further Update.

My firm has compiled and summarized the steps that various courts and governmental agencies in the Intellectual Property area have taken to try to minimize the spread of COVID-19.  I have posted about the things the Massachusetts courts have done, but please click here to see what the other New England Federal Courts, the USPTO, Copyright Office, and some of the international IP agencies are doing in light of the epidemic.