Microsoft Corp. v. John Does 1-10 (17-cv-11831).

Judge Martinez of the Western District of Washington, in response to Defendants Charlie’s One Stop Computer Center, Inc. and its president, Michael Aucoin’s motion to dismiss for lack of personal jurisdiction, instead transferred the litigation to Massachusetts. The case was initially filed in June, 2016, against unknown defendants, alleging infringement of Microsoft copyrights and trademarks on software being installed using fraudulent product keys.  Discovery led to the identification of Charlie’s One Stop and Mr. Aucoin, who then moved to dismiss.  Microsoft indicated that, if dismissed, it would simply re-file here.  When the defendants admitted that jurisdiction would exist in Massachusetts, transfer was ordered.  Judge Wolf has been assigned to the case.

Washington’s long-arm statute allows a court to award attorney’s fees for a party served under the statute who prevails in the action. Judge Martinez determined that Microsoft, when first notified about the jurisdictional issue, told Defendants that it would “vigorously defend against any motion to dismiss,” and after Defendants filed the motion, that it would consent to transfer to Massachusetts only if the motion and request for fees were withdrawn.  He determined that such conduct, followed by Microsoft appearing in court and not opposing transfer, warranted the award of fees.

Cengage Learning, Inc. et al. v. Does 1-11 (15-cv-11577).

Judge Wolf entered default judgment in favor of Cengage, finding the well-pled facts of the complaint showed that defendents sold counterfeit versions of Cengage’s copyrighted textbooks bearing Cengage’s trademarks. Most of the defendants failed to answer the complaint, and the one who did file an answer then failed to respond to a motion for preliminary injunction and ceased responding to its counsel.  Judge Wolf went on to determine that the infringement was willful, based on the defendants’ use of false names and addresses to register online storefronts on Amazon.com and on their failure to appear.  Maximum statutory damages for both trademark and copyright infringement totaling $2.9 million were awarded, and a permanent injunction was entered.

Purdue Pharma LP et al. v. Collegium Pharmaceutical, Inc. (17-cv-11814).

Purdue asserts that Collegium infringes U.S. Patent No. 9,693,961, which covers improved oxycodone hydrochloride compositions, both by filing an NDA and by making and selling the now-approved Xtampza® ER oxycodone extended release capsules.  This marks the latest in a series of lawsuits filed by Purdue alleging Xtampza® infringes Purdue patents.

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.