The District of Massachusetts seeing rise in patent lawsuits since TC Heartland

According to an article published today by Law360, there have already been more patent cases filed in the District of Massachusetts this year than in all of 2016.  This may be the result of the changes brought about to venue in patent cases by the Supreme Court’s TC Heartland decision, which limited venue in patent cases to districts in which a defendant corporation is incorporated or districts in which the defendant committed acts of infringement and has a regular and established place of business.  According to RPX, filings in the Eastern District of Texas – previously the busiest patent district by far – dropped from 57% of cases filed between January 1 and May 22, 2017 (the date TC Heartland issued) to 28% of all new filings in the nine weeks post-TC Heartland.  While the sample sizes are small, this seems to point to a busier patent litigation practice for Massachusetts.

LovePop, Inc. v. PaperPopCards Inc. (17-cv-11017).

LovePop amended its complaint against PaperPop Cards, adding some new card designs to the allegations. LovePop originally filed suit in June, alleging copyright and trademark infringement relating to 3-D pop-up cards and videos promoting the cards.  PaperPop moved to dismiss the copyright claims, on the basis that the complaint did not identify any allegedly protectable expression that is found in PaperPop’s cards, and fails to separate out the public domain elements that are not protectable under copyright law.  Here is an exemplary comparison of each companies’ Hanukah card found in PaperPop’s motion to dismiss, with LovePop’s on the left and PaperPop’s on the right:

The motion to dismiss was denied as to certain card designs and otherwise taken under advisement.

LovePop was launched out of the Harvard Innovation Lab in 2014. The cards are beautiful – you can see one of the allegedly copied videos of a Christmas sleigh card being opened at LovePop’s website here.

Blackout Merch, LLC v. John Does 1-5 et al. (17-cv-11799).

Judge Zobel is presiding over another pre-emptive concert merchandise case, this one involving the performer Katy Perry. Blackout Merch claims the exclusive right to utilize Ms. Perry’s registered trademarks in connection with concert merchandise in North America, and seeks to prevent the sale of infringing merchandise at or around Boston’s TD Garden when Ms. Perry performs there on the 29th and 30th of September.

Polyzen, Inc. v. Dielectrics, Inc. (17-cv-30128).

Polyzen sued Chicopee, Massachusetts company Dielectrics, Inc., alleging that various Dielectrics’ multi-layer film welded medical balloons infringe U.S. Patent No. 9,737,694. The patent, which issued just last month, claims methods of manufacturing medical balloons.  The case is before Judge Mark Mastroianni in the Springfield division of the District of Massachusetts.

Judge Mastroianni, a Springfield native, received his commission as a judge in June, 2014. Of the five patent cases he has thus far presided over, this is the second involving Polyzen and Dielectrics.  Polyzen previously sued Dielectrics on August 19, 2015, alleging infringement of U.S. Patent Nos. 7,976,497 and 8,740,845, which are also directed to medical balloons.  The dispute centers around Polyzen’s distributor RadiaDyne, who has the exclusive right to use and sell covered medical balloons manufactured by Polyzen.  According to the earlier complaint, RadiaDyne provided confidential and proprietary information of Polyzen to Dielectrics, who used the information to manufacture lower-cost (but infringing) balloons for RadiaDyne to sell. Polyzen sued both companies in North Carolina, but the suit against Dielectrics was dismissed for lack of personal jurisdiction, leading to the Massachusetts suit.  This first case remains stayed pending the outcome of the North Carolina suit, which is currently under appeal.

Leary v. Berkshire Group LLC (17-cv-11723).

Silvia Leary is the owner of a trademark registration on the stylized mark “VIA,” in which the “A” lacks the horizontal line, looking like an upside-down “V.” The identified goods and services are “fashion modelling for entertainment purposes.”  Ms. Leary alleges that she has a pending copyright application on the mark.  She uses the mark at her “Viasworld” website, where (among other things) she sells socks, t-shirts, and other merchandise.  Berkshire developed the “Via Seaport Residences” on Fan Pier in Boston, and apparently created some “VIA” merchandising in connection with the development.  Berkshire’s use has a similar “A” that lacks the horizontal line.  Ms. Leary alleges that Berkshire is using the same VIA mark on hats, glasses, t-shirts and other types of items, causing customer confusion.  She claims trademark and copyright infringement and unfair competition.  The case is before Judge Saris.

Trust Safe Pay, LLC v. Dynamic Diet, LLC (17-cv-10166).

Magistrate Judge Kelley granted defendants’ motion to dismiss the copyright infringement claims, citing the failure of the plaintiff to allege it held any validly registered copyrights and failure to identify any specific content that was alleged to be both original and copied. Trust Safe accuses its former employees of taking a confidential algorithm and using it to create a competing business, of copying Trust Safe’s website, and of tracking the website and changing its own in exactly the same way as Trust Safe’s site.  Applying the Twombly standard, Judge Kelley noted that the complaint asserts that Trust Safe is the assignee of three copyright registrations, but fails to allege that the applications, together with the deposit and fees, had been sent to the Copyright Office, which is required when relying on preregistration of a copyright.  She also found the failure to specify similarities between Trust Safe’s site and that the Defendant “frustrate[s] any effort to compare the parties’ materials” and thus fails to show copying.  Judge Kelley also dismissed the state statutory and common law trade secret counts for failure to adequately identify the trade secrets at issue – the recitation of an “algorithm,” without specifying what the algorithm was or what it did, was not sufficient.  Intentional fraud and M.G.L. 93A claims that depended on the trade secret misappropriation claim were also dismissed.  Because all of the claims were deemed plausible, albeit inadequately pled, all of the dismissals were without prejudice.  The case was before the Magistrate pursuant to 28 U.S.C. 636(c) and with the consent of the parties.

Rothschild Digital Confirmation LLC v. Repsly, Inc. (17-cv-11706).

Rothschild accused Repsly of direct and indirect infringement of U.S. Patent No. 7,456,872, “Devise and Method for Embedding and Retrieving Information in Digital Images.” The plaintiff is a Texas entity with a place of business in Plano, Texas, home to many non-practicing entities, and appears to be exlcusively in the patent infringement business.  Rothschild was registered as a limited liability company in August of 2016 by Leigh Rothschild, the sole named inventor on the patent, however, making this case at least somewhat different than many of the non-practicing entity suits we see.