Cobb v. TripAdvisor LLC (20-cv-10111).

Maryland photographer William Cobb accuses TripAdvisor of misusing one of his photographs on its website. The complaint asserts that TripAdvisor stripped copyright management information from a Cobb photograph and then placed the photograph on TripAdvisor’s website in several places. The photograph, an aerial view of St. Petersburg, Florida, appeared on a “things to do” page, identified as https://www.thingstodo.avis.com, that appears to belong to Avis rather than TripAdvisor. No explanation is given as to why TripAdvisor is responsible for the placement of the photograph on this web page.

Big Beings USA Pty. Ltd. Et al. v. Nested Bean, Inc. (20-cv-10101).

Australian companies Big Beings and LB Online & Export Pty. Ltd., which does business as Love to Dream, accuse Massachusetts business Nested Bean of infringing U.S. 9,179,711, directed to infant swaddling suits. Big Beings asserts that Nested Bean’s “Zen One Convertible Swaddle” product infringes at least one claim of the ‘711 patent. Big Beings is the assignee of the ‘711 patent, while Love to Dream is the exclusive licensee of Big Beings “Swaddle” technology, which includes the ‘711 patent, in the United States. In addition to claiming infringement, Big Beings asserts unjust enrichment. Judge Talwani has the case.

Sound United, LLC d/b/a Definitive Technology v. Amazon.com seller audio video sales guy (19-cv-12541).

In December, home theater maker Sound United sued Amazon sellers Amazing Deals Online, and a third, unknown seller identified as “Amazon.com seller audio video sales guy” (“AVSG”), accusing each of infringing Sound United trademarks for such products, including DENON, POLK AUDIO, MARANTZ, DEFINITIVE TECHNOLOGY, HEOS, BOSTON ACOUSTICS, and CLASSE while not being authorized resellers of such products. The resellers are further accused of suggesting that a manufacturer’s warranty. Sound United does not assert that the marks are being placed on non-Sound United products; instead, Sound United asserts that the defendants obtained Sound United product from authorized resellers in knowing violation of the resellers’ agreements with Sound United. Sound United asserted trademark infringement, tortious interference with contractual relations, and violation of Ch. 93A.

Sound United, having been unable to find a physical mailing address or business location for the unknown seller AVSG, sought permission to serve that entity using its Amazon.com electronic mail service. Magistrate Judge Cabell granted the motion, noting that under Massachusetts law, when a process servers reports back that after a diligent search he or she cannot find the defendant, the defendant’s last and usual address, or an agent upon whom process may be served, the court may issue an order of notice. He determined that, under the circumstances, service via Amazon was reasonably calculated to prove requisite notice.

Welch Foods, Inc. v. Healthy Food Brands LLC (119-cv-12556).

Welch Foods, a cooperative corporation owned by more than 750 farmer families, filed suit against its former licensee Healthy Food Brands (“HFB”), accusing it of violating its contract with Welch and of trademark infringement in connection with HFB’s continued marketing and sale of licensed products post-termination. Welch owns a number of federal trademark registrations to marks that include the term “WELCH’S” for a variety of food products and services. In 2014, Welch and HFB entered into a license agreement under which HFB would develop, manufacture and sell products such as dried and freeze-dried fruits and trail mixes under the WELCH’S BRAND. The license granted exclusivity in this area. The agreement provided for the payment of royalties based on sales, with certain minimum royalties established, and also sets forth reporting requirements on HFB sales. Welch asserts that HFB has missed a number of royalty payments and has never provided the required sales information, with the purpose of hiding the actual level of sales. After providing written notice of these breaches and allowing the passage of the required time to cure, Welch terminated the agreement in June, 2019. While the agreement requires the return or destruction of all WELCH’S-branded products upon termination, Welch asserts that HFB has instead continued to sell these products. Welch asserts breach of contract, breach of the covenant of good faith and fair dealing that is inherently applied to Massachusetts contracts, quantum meruit, unjust enrichment, trademark infringement, false association, unfair competition and dilution under the Lanham Act, and violation of Mass. G.L. c. 93A. Judge Stearns has been assigned the case.

Singular Computing LLC v. Google LLC (19-cv-12551).

Singular Computing, founded by Dr. Joseph Bates, designs and develops computers having new architectures that permit greater usage of the computing potential of a given system. This system utilizes “massively parallel processing” to achieve the improved results. After filing a provisional patent application on this technology, Dr. Bates met with Google representatives under a non-disclosure agreement to discuss Google utilizing such a system to support its developments in AI-related applications. Singular asserts that Google nevertheless copied Dr. Bates’ architecture and utilized it in Google’s Cloud Tensor Processing Unit Versions 2 and 3, and that the Google system infringes Singular’s 8,407,273, 9,218,156 and 10,416,961 patents. Singular suggests that, absent the infringement, Google would have been required to at least double the number of data centers it constructed, at an additional cost of at least $10 billion. Singular further asserts that the infringement was willful, at least with respect to the earlier two patents. The case is with Judge Saylor.

Sensitech, Inc. v. Grupo OFAS, SA de CV et al. (19-cv-12554).

Sensitech, a maker of monitoring devices for monitoring and maintaining manufacturing and storage conditions, sued its former Mexican distributor Grupo, accusing Grupo OFAS of trademark infringement and breach of contract. The agreement by which OFAS would distribute certain Sensitech products in Mexico terminated on November 30, 2015; at that point, OFAS was obliged to return all Sensitech IP and make all payments due. Sensitech asserts that OFAS never made the required payments and continues to use Sensitech trademarks and hold itself out as a licensed Sensitech distributor, and was using shell companies to try to obtain additional Sensitech products. Sensitech alleges a 93A violation in addition to the Lanham Act and contract causes of action. The case is before Judge Burroughs.

Bio-Rad Laboratories, Inc. et al. v. 10X Genomics, Inc. (19-cv-12533).

Bio-Rad and Harvard brought an infringement suit against 10X Genomics, accusing the California business of infringing three patents (tow of which Bio-Rad exclusively licenses from Harvard, the third of which Bio-Rad is the owner) relating to partitioning of biological samples into individual droplets formed using emulsion chemistry technology, permitting the ability to perform multiple reactions while minimizing the amount of sample required. Bio-Rad asserts that its Droplet DigitalTM PCR Systems incorporate the patented technology, which it spent years and hundreds of millions of dollars developing. In 2012, Bio-Rad employee Serge Saxonov, the sole inventor on one of the asserted patents, left Bio-Rad and formed 10X, which came out with competing products. 10X was sued at that time for patent infringement by RainDance, and Bio-Rad substituted itself as plaintiff when it acquired RainDance. In that case, 10X was found to have willfully infringed several patents and was permanently enjoined. 10X subsequently came out with the accused “Next GEM” line of products. Bio-Rad asserts that this new product is at the heart of a $362 million IPO launched by 10X in September. Judge Young has the case.

Bio-Rad asserts that 10X is subject to personal jurisdiction through sales of the accused Next GEM Platform in the state, including to co-Plaintiff Harvard University, as well as through promoting the product in the state. Bio-Rad also points to a prior litigation in the District of Delaware involving two of the asserted patents, in which 10X Genomics claimed the patents were implicitly a part of a license it had with Harvard that included a forum selection clause designating Massachusetts as having sole jurisdiction. Bio-Rad asserts that 10X Genomics’ representations in that litigation, which was voluntarily dismissed by Bio-Rad, estop 10X from challenging jurisdiction or venue in Massachusetts. Bio-Rad charges 10X with direct, contributory, and induced infringement. It further alleges willfulness, based on both Saxonov’s knowledge of the portfolio and on a parent patent to the patents-in-suit having been cited in an IDS in one of 10X’s patent applications.

Bio-Rad and 10X Genomics are frequent adversaries. In addition to this case and the Delaware case referenced above, the parties are engaged in patent litigation in the Northern District of California and Delaware.