PointCare sued Brigham and Women’s Hospital, Mass. General Hospital, the Koch Cancer Institute, and the two named inveontors, both former PointCare employees, accusing them of infringing U.S. Patent No. 7,611,849, which is alleged to cover aspects of “enhanced cellular assays.” The technology, which addresses human cells that have been marked for detection as receptors, can lead to very early detection of conditions such as AIDS, lung cancer, and other diseases. The patent covers the binding of gold to receptor cells to facilitate in their detection and quantification. The complaint alleges that the defendants are preparing to market infringing technology, as evidenced by articles published by the defendants that indicated they had been conducting research to locate markers as to cancer cells which could be addressed through the patented process. In addition to the infringement claim, the defendants are accused of violating Mass G.L. c. 93A, conversion under state law, breach of contract (alleging that infringement of the patent is effectively a breach of the agreement whereby the inventors assigned the patent to PointCare), and interference with a contract (again, the assignment contract).
Judge Stearns denied Global Strategies’ motion for a preliminary injunction for failure to establish a likelihood of success on the merits. Global alleges Interbulk infringes a Global patent and Global’s “DEMO BAGS” family of marks through sale of its “Ox Demolition Clean Up Bag” or “Ox Demo Bag.” Judge Stearns found that Interbulk had raised substantial questions concerning the validity of the asserted patent, because Interbulk had demonstrated that the accused product was on sale more than a year before the filing date of the asserted patent. He also indicated that there was a likelihood that at least some of the claims would be found obvious over the asserted prior art combined with common sense under KSR, which came out after the asserted patent had issued. With respect to the trademark, Judge Stearns found that “DEMO BAG” was an abbreviation for “demolition bag,” which would render the mark generic and unprotectable, which was enough to overcome the weak showing of likelihood of consumer confusion.
Last month, the District of Massachusetts presented for comment proposed amendments to Local Rule 16.6, which governs patent litigation within the district. The proposed changes are fairly substantial. The proposed rule would require disclosure of infringement contentions and claim charts within 21 days of the initial scheduling conference, with an identification of all accused products or methods a part of the analysis. The Markman hearing would be conducted within nine months of the initial scheduling conference and trial would take place within 24 months of the initial scheduling conference. These changes should result in cases moving more quickly to trial, as currently cases take an average of three years to reach a jury. The rules would also require early disclosure of the real parties-in-interest, proof of ownership of the asserted patents, and early production of documents concerning conception and reduction to practice of the claimed inventions. A conference concerning the sufficiency of these disclosures must take place within 21 days, after which the accused infringer would have an additional 21 days to produce documents showing the operation, construction and performance of the accused products or methods, provide samples of the accused products or permit inspection of the products or methods, produce source code, and provide non-infringement and invalidity claim charts and supporting documents. The proposed rule includes a default protective order that allows for early disclosure of confidential information where the parties have not agreed on a protective order. A set of guidelines and a timetable are provided for handling Markman proceedings. The public comment period extends through January 26, 2018.
Veveo filed suit against a variety of Comcast entities alleged to do business in Massachusetts, accusing them of infringing U.S. 7,779,011 and 7,937,394, which relate to network-based searches on cable set-top boxes and other devices using numeric keypads. Veveo alleges that it had provided information on the technology to Comcast under a confidentiality agreement, and Comcast eventually licensed the technology. When Comcast developed its own search technology and terminated the license in 2013, Veveo sued Comcast for patent infringement, which it voluntarily dismissed after Comcast assured Veveo it would reenter business dealings with Veveo. A second suit was filed in 2016 in the Sourthern District of New York, asserting the patents-in-suit as well as others belonging to Rovi, Veveo’s corporate owner; that case is stayed pending inter partes review of the ‘696 patent and the Rovi patents. An ITC complaint was also filed by Rovi, resulting in a ban on importation of Comcast infringing set-top boxes. Veveo asserts that, despite the ITC ruling and the fact that every other major pay-TV provider in the United States licenses the Rovi/Veveo technology, Comcast continues to provide infringing search functionality without taking a license. Veveo seeks preliminary and permanent injunctions and enhanced damages for willfulness.
Following construction of the claims, Judge Capser denied Philips’ motion for summary judgment of validity. WAC had sought inter partes review on several grounds, some of which were denied. Judge Casper, citing to Shaw Industries Group v. Automated Creel Systems, found that the Federal Circuit had determined that the estoppel resulting from an unsuccessful IPR did not apply to grounds that were not instituted by the PTO. Judge Casper denied WAC’s motion to compel the deposition of the named inventor of one of the patents-in-suit for lack of relevance. WAC had asserted that the inventor’s testimony was relevant on patent practices at the time the application was filed, prior art, the problem the patent allegedly solves, the underlying development of the technology claimed in the patent, the alleged contribution of each inventor to the patent, and the facts and circumstances surrounding the alleged invention. The problem was that none of these issues related to any claims or defenses of WAC, thus making these issues irrelevant. The court specifically noted, however, that the inventor was no longer an employee and was a resident of France, suggesting that the relevancy might have been sufficient had the witness been more readily available, but did not outweigh the inconvenience of making the witness appear.
The Green Pet Shop Enterprises (“GPSE”) accuses PetEdge’s Slumber Pet Cool Pup Pad of infringement of U.S. Patent Nos. 8,720,218 and 9,226,474, which relate to cooling platforms for use with pets. GPSE alleges that it notified PetEdge of the patents in July 2017, and additionally that GPSE has been marking its own Cool Pet Pad product with the patent numbers for some time. GPSE alleges that a prior defendant had petitioned for inter partes review, which the Patent Office denied. GPSE seeks a finding of willful infringement, and seeks monetary and injunctive relief. The case is before Judge Young.
Hybrid Audio is the assignee of U.S. Reissue Patent RE40,281, which claims a priority date of September 12, 1992. The patent is alleged to cover certain elements of MP3 technology. As a result of a prior lawsuit involving other defendants, the patent was put into reexamination in 2012. It emerged in December 2015 with all reexamined claims confirmed. Texas Instruments was notified in January 2011 by a prior assignee, Hybrid Audio-Texas, that certain Texas Instruments products were believed to infringe the patent. Hybrid Audio acknowledges that the patent lapsed on September 21, 2012, but states that it was constrained from filing suit or seeking damages during the pendency of the reexamination. Hybrid Audio seeks damages for the period from the January 2011 notice letter to the expiration, all of which it asserts to be with the six-year statute of limitations on damages. It is unclear how this could be, given that the January 2011 letter was sent nearly seven years ago, and Hybrid Audio itself seems to acknowledge that there is a statute of limitations issue – it asserts that it sent a letter in December 2016 to Texas Instruments proposing to toll by agreement the statute of limitations so that settlement could be discussed without necessitating the time and expense of actually filing suit, and that Texas Instruments never responded.