Framingham, Massachusetts’ Boston Heart Diagnostics Corp. filed separate patent infringement lawsuits, one against GeneAlign, LLC (17-cv-11412) and the other against Genelex Corp. (17-cv-11416). Both suits allege infringement of U.S. Patent No. 8,455,194, titled “Diagnostic Methods” and directed to methods for detecting the susceptibility of an individual to statin-induced myopathy, and the plaintiff alleges itself to be the exclusive licensee with the “first right” to sue for infringement. Plaintiff alleges direct and induced infringement.
Judge Hillman denied Marshall’s motion for attorneys’ fees. The lawsuit involved a dispute over whether the plaintiff should have been named as a co-author of a PLoS Biology paper, which would have given him the right to retract its publication. Marshall prevailed and moved for fees under 17 U.S.C. § 505, which allows for the discretionary award of costs and fees to a prevailing party in a copyright suit. Using his discretion, Judge Hillman determined that Mallon’s position was not objectively unreasonable and was not brought in bad faith, and that Mallon was unlikely to file more such suits, eliminating the need to impose fees for the purpose of deterrence.
A complaint was filed by David Oppenheimer and his company, Performance Impressions, LLC, against CIEE, Inc., alleging misuse of an aerial photograph of the Isle of Palms in South Carolina taken by Mr. Oppenheimer. CIEE (Council on International Education Exchange) is an organization that runs study abroad programs. CIEE is accused of using one of Mr. Oppenheimer’s photographs on its website without authorization.
Merchant Consulting sells payment processing technology equipment and services. It accuses the defendants of infringing its registered stylized mark, Registration No. 3,556,016, which is a gray “M” in a blue and green circle imposed over a gray arrowhead, with the company’s name to its right. It alleges that it also operates under its initials, MCG. Merchant Consulting alleges that the defendants run fraudulent merchant processing companies that misappropriate its “Merchant Consulting Group” and/or “MCG” marks, resulting in actual confusion. Indeed, one example of confusion cited was that the Consumer Protection Division of Missouri opened a complaint against the plaintiff, mistaking it for the defendant. Merchant Consulting charges trademark infringement, unfair competition, and cyberpiracy under the Lanham Act based on defendants’ use of the domain name “www.choosemcg.com.”
Judge Gorton granted the plaintiffs’ motion in limine to exclude Zoll’s expert from testifying about the invalidity of claims of two patents in defense of charges of willful infringement of a third patent. His reasoning was two-fold; first, the invalidity of claims from a different patent is not probative of whether infringement of a third patent was willful, and second, invalidity was first found on appeal, well after the infringement occurred, and thus the invalidity of the claims of the other patents could not serve as evidence of the state of mind of the infringer under the Supreme Court’s Halo decision of 2016.