Oxford Immunotec Ltd. v. Qiagen, Inc. et al. (15-13124).

Judge Gorton denied Oxford’s motion for a preliminary injunction on sales of Qiagen’s QFT-Plus one-tube option for the diagnosis of tuberculosis. According to the opinion, tuberculosis is detected in two ways – through skin tests or through in vitro blood test known as interferon gamma release assay (“IGRA”).  Currently, Oxford and Qiagen offer the only IGRA’s available in the United States.  Oxford’s test utilizes a single, standardized tube, while Qiagen’s test requires multiple specialized tubes.  Qiagen’s next generation product contains a single tube option that Oxford believes would infringe its patents.  Oxford sought to prevent the sale of the next generation product, scheduled for launch in October 2017, until after a trial on the infringement claims.  The asserted claims have already survived an Alice-based motion to dismiss, as well as five different petitions, all rejected, for inter partes review on obviousness grounds, and at Markman, all claims were construed on Oxford’s favor.

In considering the preliminary injunction factors, Judge Gorton determined that the claims were likely to be directed to patentable subject matter, because they included non-naturally-occurring peptides. He found that Oxford was likely to succeed in proving the patents valid over the prior art because, although Qiagen could show that researchers were exploring the use of the specific peptide, this showed only that it was “obvious to try” which does not rise to a finding of obviousness.  He also noted that Qiagen’s arguments to this effect had previously been rejected by the PTO in its denial of the inter partes petitions.  Judge Gorton found that Oxford would also likely prevail on a written description challenge, as well as on infringement by the Qiagen product.  He determined, however, that Oxford had not made a “clear showing” that substantial and immediate harm is likely in the absence of an injunction.  This was due both to the delay between finding out in January that Qiagen was about to apply for FDA approval and its filing the motion for preliminary injunction in August and because Oxford had not shown that money damages would be insufficient – “evidence of potential lost sales alone does not demonstrate irreparable harm.”  This factor also weighed heavily in the balance of hardship consideration, offsetting the hardships that Oxford, a one-product company, would face in allowing Qiagen to continue selling, and ultimately led to denial of the motion.

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.

Live Nation Merchandise v. John Does 1-100 et al. (17-cv-11381).

Judge Zobel issued a preliminary injunction and seizure order preventing bootleg sales of concert merchandise.  The concert promoter for Coldplay filed suit prior to Coldplay’s August 4th concert at Gillette Stadium in an attempt to deter counterfeiting related to merchandise bearing various “COLDPLAY” registered marks.  Judge Zobel noted that numerous defendants had been served with the complaint at the Gillette show but had failed to appear for the hearing on the motion for preliminary injunction.  The order prohibits the defendants from using the band’s trademarks on any merchandise or from aiding or inducing others from using them, and further orders the U.S. Marshal for any district in which the Plaintiff seeks to enforce the order to seize and impound all infringing merchandise being offered for sale in within ten miles of any Coldplay concert for a period of time from six hours prior to the concert to six hours after the show ends.  While the injunction came too late to help the band (and the concert promoter Plaintiff) in Foxboro, it should serve to protect them on the remainder of their shows in America.

It is interesting to note that Coldplay is no stranger to intellectual property lawsuits, having itself been sued by guitarist Joe Satriani for infringing the copyright in his instrumental song “If I Could Fly” through Coldplay’s hit “Viva la Vida” (a comparison of the two songs can be found here).  That case settled out of court in 2009.

Bravado International Group Merchandising Services v. Does 1-100 et al. (17-cv-11590).

Judge Zobel granted a temporary restraining order prohibiting defendants from selling souvenir and concert merchandise bearing counterfeit versions of the licensed marks of the plaintiff. Judge Zobel determined that the defendants were going to sell such merchandise, and that immediate and irreparable injury would result to the Plaintiff before the defendants could be identified and given notice.  The order requires defendants to file responsive papers by August 29 and to appear before the Court on September 6th to show cause why a preliminary injunction should not be granted.  The Plaintiff has the rights to sell concert merchandise bearing trademarks belonging to Lady Gaga, who is performing at Fenway Park in September.