Teva sued Eli Lilly, accusing it of infringing five Teva patents covering humanized monoclonal antibodies that can be used to treat migrane sufferers. This month, Teva submitted a Biologics License Application (“BLA”) to the FDA seeking approval to market their product, known as “fremanezumab.” Eli Lilly recently stated that it had filed its own BLA for a monoclonal antibody, to be called “Galcanezumab,” that targets the same peptide that Teva’s product targets. Based on Eli Lilly’s completion of Phase III clinical trial, its filing of the BLA, and its extensive press statements that it intends to make and sell the product upon receiving approval, Teva asserts that its cause of action is ripe for consideration by the courts. Regarding venue (Eli Lilly is not alleged to be a Massachusetts corporation), Teva asserts that Eli Lilly is registered to do business in the Commonwealth, has a registered agent and a Foreign Corporation Certificate of Registration in the Commonwealth, described its business in Massachusetts as “pharmaceutical manufacturing and sales” in 2017 Annual Report filed with the state, and employs consultants and sales people in Massachusetts to work with Massachusetts health care providers. Moreover, Eli Lilly is asserted to have a facility in Cambridge (in a building, coincidentally, that resides directly behind my firm’s office in Kendall Square) at which it does research and development work, including work on delivery of biologics and pain treatment, which Teva suggests meets the “committed acts of infringement” part of the patent venue statute.
RW IP Holdings sued Standard Innovation Corp. for infringement of U.S. Patent No. 6,028,531, “Terminal Units for a Mobile Communications System” by its sales of We-Vibe® adult toys that can be controlled remotely through a smartphone or the like. Direct, contributory and induced infringement are alleged, and damages, enhancement for willfulness, and attorneys’ fees are sought; no injunction is being sought however, as it appears the patent (which has a priority date of October 12, 1996) has expired.
Potentially of interest, Standard Innovation is alleged to be a Canadian corporation located in Ontario. While the complaint alleges advertising and sales into Massachusetts, there are no allegations that Standard Innovation has a regular and established place of business in the state. At present, it is unclear whether the venue requirements of TC Heartland will apply to foreign corporations, which previously could be sued in any venue in which personal jurisdiction could be established – the TC Heartland decision notes that the Court was not expressing an opinion on the subject. It will be interesting to see whether a venue challenge is made in this case.
Microsoft sued Terason and its president, Alice Chiang, for copyright and trademark infringement, false designation of origin, and unfair competition related to allegedly pirated versions of Microsoft software being advertised and distributed by Terason. Microsoft alleges that Terason customers purchase the software without being aware that it is not legally licensed by Microsoft. Terason manufactures color portable ultrasound equipment, and (according to the complaint) thousands of activations and attempted activations of Windows 10 and Windows 7 software occurred over the past six years from an IP address assigned to Terason. The product keys for these activations were either used more times than authorized by the applicable license or were used to activate software outside of the region for which they were authorized. Microsoft alleges that Chiang personally participated in or had the right to direct and control these activities and received a direct financial benefit from these activities, justifying personal liability either directly or under principles of secondary liability such as respondeat superior, vicarious liability and contributory infringement. The case is before Judge Gorton.
Hardware giant True Value Company (“TVC”) sued TrueValue POS (“TV POS”) for federal and common law trademark infringement, dilution and unfair competition. TVC is a member-owned cooperative made up of 4500 independently-owned and operated retail stores, thousands of which are known as TRUE VALUE stores. TVC has registered TRUE VALUE for a variety of goods and services, including certain retail store services, indicia of membership in an association of retail hardware stores, provision of advertising services, wholesale purchasing services, and credit card services. They have been using the TRUE VALUE mark since 1954, and assert that the mark is famous. TVC asserts that TV POS began using the mark in 2013 or 2014 in its domain name (www.truevaluepos.com) in connection with Point Of Sale software and systems for restaurant, retail and credit card services. TVC seeks injunctive, monetary damages and attorneys’ fees, as well as a finding that the case is exceptional pursuant to 15 U.S.C. § 1117, which allows for statutory and treble damages.
Larry Philpot, a professional concert and event photographer from Indiana, sued Encore Unlimited, Inc., Printed Guitar Picks Limited, and numerous individuals for copyright infringement. Philpot alleges the defendants uploaded photographs he had taken of Carlos Santana, Neil Young, and Kid Rock, printing them on guitar picks, and advertising and selling them through their own websites as well as on Ebay. He seeks liability for reproduction and public display, as well as for unfair and deceptive trade practices under M.G.L. Ch. 93A. Philpot further alleges that the copyright infringement was willful, based (solely, it appears) on his allegation that the defendants tried to hide their identities by registering their domains under aliases. A review of one of the defendant’s websites (www.printedguitarpicks.com) reveals that the company allows customers to upload pictures to be printed on guitar picks, while also offering stock pictures of various artists; it is unclear from the complaint whether the former or the latter are the subject of the suit. For the latter, the website indicates that all customers submitting photographs warrant that they obtained permission from the copyright holder; it will be interesting to see whether this clause affects the willfulness decision.
DSI Assignments sued American Road Products, Installernet, Inc., Anthony Frangiosa, Stephen Witt, and unknown Does 1-100 for trademark infringement and dilution, false designation of origin, false advertising, unfair competition, breach of contract and fraud in the inducement. DSI brought suit for the benefit of creditors of Pearl Automation, Inc., which made driver assistance technology, including a rear view camera contained in a license plate frame that broadcast the video to a cell phone mounted in the vehicle. DSI alleges that Pearl entered into a sales/distribution agreement with InstallerNet whereby InstallerNet was to purchase Pearl’s entire remaining inventory. InstallerNet’s president, Frangiosa, directed delivery of these products to American Road Products; when questioned about this by Pearl, Frangiosa represented that the two entities were “the same company” and that he owned both entities. Pearl was never paid for the inventory, and subsequently ceased operations. DSI subsequently learned that, during the time that InstallerNet placed its order for the remaining inventory, its registration in Massachusetts as a foreign corporation had been suspended. DSI contends that Frangiola and InstallerNet’s other shareholders (Witt and Does 1-100) are not shielded by the corporate form and are individually liable. DSI further contends that American Road Products is an unfunded sham corporation that was set up for the sole purpose of shielding InstallerNet and its shareholders from liability, and that no such shielding should be allowed.
Ion Motion Control, alleged to be the trade name for a suspended California corporation known as Basic Micro Products, Inc., was sued by computer hardware manufacturer Performance Motion Devices (“PMD”) for trademark infringement, cybersquatting, dilution and false designation of origin. PMD owns an incontestable registration in ION for computer hardware, and owns and operates the domain name <pmdcorp.com>. PDM alleges that Basic Micro improperly selected the domain names <ionmc.com> and <ionmotioncontrol.com> and further that Basic Micro infringes the ION mark through the use of the logo:
PDM seeks injunctive and monetary relief, as well as forfeiture/cancellation of the <ionmotioncontrol.com> and <ionmc.com> web domains.