Continuing the ASCAP theme, WB Music Corp., Milksongs, and Hunglikeyora Music filed suit against the owners and operators of Louie’s Lakehouse of Southwick Massachusetts, alleging infringement of the songs “Shut Up And Dance,” “And So I Know,” and “Drive” by allowing them to be performed in the restaurant on July 16, 2017. According to the complaint, ASCAP representatives tried on over sixty occasions since 2008 to contact the defendants to offer an ASCAP license, all of which were refused. This is one of six ASCAP-styled suits naming at least one of the same plaintiffs that were filed yesterday in Illinois, Louisiana Maryland, and Wisconsin as well as Massachusetts.
I would note that the performances of the Hendrix songs just referenced took place on July 14, 2017, and that the road from Southwick, located just west of Springfield, MA to Marlborough, home of the Bolton Street Pub, leads directly towards Boston – perhaps more such suits will arise in the coming days based on what appears to be a road trip taken by an ASCAP representative to explore unlicensed performance spots.
Experience Hendrix, which (according to its website) is owned and operated by members of Jimi Hendrix’s family, sued the owners and operators of the Bolton Street Pub of Marlborough, MA for allowing several copyrighted Jimi Hendrix’s songs to be performed without license. The Bolton Street Pub appears to offer entertainment most weekend nights in the form of cover bands. Experience Hendrix asserts that it is a member of ASCAP, an association that licenses performance rights to members’ copyrighted musical compositions, and that despite repeated requests, the Bolton Street pub have refused ASCAP’s license overtures. Experience Hendrix seeks an injunction preventing the Bolton Street Pub from publicly performing, causing, or permitting to be performed three particular Jimi Hendrix songs – “Fire,” “Purple Haze,” and “Stone Free” – and seeks statutory damages and attorneys’ fees.
Caris filed suit asserting that Foundation Medicine’s FoundationOne®, FoundationOne® Heme, and FoundationACT® products infringe five Caris patents covering systems for generating reports identifying therapeutic agents for cancer treatment based on molecular profiles of the tumor. Caris alleges willful infringement, citing to statements in Foundation’s 10-K SEC filings that identify Caris as a direct competitor and that indicates that competitors “may also use their patent portfolios, developed in connection with developing their tests, to allege that [Defendant’s] products infringe their patents, and [Defendant] could face litigation with respect to such allegations and the validity of such patents.”
Caliper, a subsidiary of PerkinElmer, accuses Alere of willfully infringing six patents relating to microfluid analytical systems by sale of its epoc® Blood Analysis System. Four of the patents expired this year, and the other two are to expire in April, 2019 and April, 2020. Caliper asserts that it made Alere aware of the patents in February (as to some patents) or September (as to the rest), and that Alere’s infringement is thus willful. Direct and induced infringement are claimed, and damages, enhanced damages and attorneys’ fees are sought. Caliper does not, however, seek injunctive relief, despite two of the patents having more than two and more than three years of life remaining.
Italian company SAES Getters sued Ohio company Materion Corp. and Massachusetts corporation Materion Precision Optics and Thin Film Coatings, alleging infringement of a pair of patents relating to contaminant-removing materials referred to as “getters.” SAES asserts that the Materion defendants acquired infringing getter technology from Integrated Sensing Systems, with whom SAES had been discussing the asserted patents. SAES seeks a finding of willful infringement and injunctive and monetary relief.
Headset manufacturer GN Netcom accuses electronics reseller Online King of infringing its JABRA and VXI trademarks. GN’s factual allegations are similar to those of its September lawsuit against TelQuest International; here, GN alleges that Online King buys actual GN products manufactured and sold to the international market that were not intended for sale in the United States and that are materially different than GN products intended to be sold in this country. As a general rule, the resale of genuine trademarked goods is not infringement, under an “exhaustion” theory; this does not apply, however, when the accused party is selling goods that materially differ from those sold by the trademark owner. The importation of “gray-market” goods, foreign manufactured goods that bear a valid U.S. trademark but that are imported into the country without the trademark owner’s consent, fall within this exception; it is not immediately clear whether goods actually manufactured in America, and GN’s complaint does not make clear where its goods intended for foreign sale are actually made.
Judge Stearns denied plaintiff’s motion to amend the complaint to add a principal-agent theory of direct infringement in a long-running multi-district litigation originally filed in 2012. Discovery in the matter was extended to August 2017, with the judge admonishing the parties that remaining discovery was to focus on new issues; Judge Stearns granted a motion to quash subpoenas directed to defendant BrainLab’s customers in September, noting that NeuroGrafix had been aware of its inducement theory of infringement for years and had no justification for waiting until the close of discovery to pursue that theory. NeuroGrafix subsequently moved for leave to file an amended complaint, citing newly discovered evidence that BrainLab provided compensation in the form of dinners, drinks and paid consulting opportunities to neurosurgeons. NeuroGrafix asserts that, as a result of these payments (which range from one hundred to several thousand dollars), a principal-agent relationship was formed whereby BrainLab directed or controlled the doctors’ performance and the doctors’ actions could thus be imputed to BrainLab pursuant to Akamai Techs. V. Limelight Networks, 797 F.3d 1020 (Fed. Cir. 2015). Judge Stearns found that the proposed complaint, which asserted that “BrainLab intends for Neurosurgeons to carry out each step” of the asserted claim was asserting induced, not direct, infringement, and NeuroGrafix had already been denied the opportunity to belatedly pursue such a theory.