YourFavorite.com et al v. Payment Printer, LLC et al. (20-cv-10791).

Richard Rogers of Yourfavorite.com filed a pro se complaint alleging that Payment Printer, LLC and its sole owner and agent, Christopher Cardi, infringe the copyright in his works titled “Check Writer User Guide” and “Reasons for Return” by copying them verbatim at the paymentprinter.com website.  Rogers alleges that the infringement began on March 18, 2018, although he claims he just discovered the infringement last month.  

There are several problems with this complaint.  First, Rogers makes no assertion that either Payment Printer, a Florida Corporation, or Cardi, a Florida resident, are subject to personal jurisdiction in Massachusetts.  Additionally, it appears from the complaint that, while a copyright registration has been obtained for “Reasons for Return,” registration in “Check Writer User Guide is merely pending, meaning that the complaint with respect to this work is premature.  Moreover, a review of the Copyright Office indicates that the copyright in the one work that has actually issued was not registered in time to permit Rogers to claim statutory damages under 17 U.S.C. 412, leaving Rogers only with actual damages as a potential remedy.  Judge Saris is assigned to the case.

Intellectual Ventures I, LLC et al. v. Netapp, Inc. (16-cv-10860/10868).

Intellectual Ventures accused NettApp’s MetroCluster Fabric Attached systems of infringing U.S. Patent No. 6,516,442, which covers aspects of symmetric multi-processor types of computer architecture by which multiple processors share a common operating system and memory. Each asserted claim required certain components of the system to “perform error correction of the data in the packets exchanged over the channels.” NettApp asserted that the MetroCluster products, which allow for continuous back-up of data to separate locations, do not satisfy this “error correction” limitation, as the term had been construed. Judge Saris granted NettApp’s motion for summary judgment of non-infringement. She had construed the term to mean “correcting errors in data by at least reconstructing erroneous data,” rejecting Intellectual Ventures proposal that the term be construed broadly enough to encompass the correction of errors using a retry request. The MetroCluster systems break down data packets into sub-packets, to which an error detection code is appended. The system discards data in which an error is detected and then retransmits the data. Once the correct data has been received, the system puts the sub-packets back together into a complete packet. Intellectual Ventures asserts that this re-assembly of the sub-packets into full packets satisfies the “reconstruction” aspect of the limitation; Judge Saris disagreed, however, finding that her construction of the “error correction” limitation unambiguously excluded a system that exclusively addressed errors through a retry procedure. She also noted that the reassembly process utilized by the MetroCluster systems was not a part of handling errors, as such reassembly occurs whether an error is detected or not.

SynKloud Technologies, LLC v. Nuance Communications, Inc. (20-cv-10564).

SynKloud accuses Nuance of infringing U.S. Patent No. RE 44,248, directed towards enhanced voice recognition technologies. The ‘248 patent is a reissue of U.S. 7,689,416. SynKloud asserts that certain of Nuance’s Dragon products infringe through allowing users to transfer voice model files between computers, enhancing the speech recognition accuracy in the destination computer. SynKloud first notified Nuance of the ‘248 patent in April of 2015, but Nuance continued to sell the accused Dragon products. SynKloud specifically pleads that neither it nor any predecessors in interest have made, sold or licensed any products covered by the ‘248 patent and thus requiring marking. SynKloud claims direct, induced and contributory infringement. Judge Saris has the case.

Duffy Archive Limited v. 379 Somerville Avenue LLC (20-cv-10202).

Duffy Archive, a British company that owns and manages the photographs of fashion and celebrity photographer Brian Duffy, accuses 379 Somerville, which owns and operates a live music venue called “Thunder Road” at the 379 Somerville Ave. address, of willful copyright infringement. Duffy asserts copyright in a photograph of a shirtless David Bowie with a blue and red lightning bolt running across one eye, which appears to have been taken during the session that led to the album cover for Bowie’s 1973 “Aladdin Sane” album. He says that 379 Somerville used this photograph as the basis for promotions for a “Bowie Celebration” night at the venue. Duffy asserts that a number of cease and desist letters were sent but that “the infringement brazenly continues’” although I note that the date of the event has passed. The case is before Judge Saris.

Trustees of Boston University v. Kingbright Electric Co., Ltd. et al. (13-cv-12335).

In a different part of Boston University’s series of patent infringement suits against LED manufacturers, now consolidated, Judge Saris granted in part and denied in part Kingbright’s motion for judgment on the pleadings. The Kingbright case was stayed pending the resolution of earlier such cases, and following the invalidation of claim 19 for lack of enablement, Kingbright filed its motion to dismiss or, in the alternative, for summary judgment. Kingbright, which sells LED packages that utilize LED’s manufactured by Epistar, Cree, and Tekcore, sought judgment no the pleadings as to the products that incorporated Epistar’s LED chips under the Kessler doctrine. This doctrine bars infringement actions against a customer of a seller who had prevailed in an infringement suit because of invalidity or noninfringement. As Epistar was one of the parties that prevailed in the lack of enablement finding, and because in any event claim preclusion would prohibit B.U. from bringing infringement claims based on different claims against Epistar (who had indemnified Kingbright), Judge Saris granted the motion with respect to these products. She denied the motion with respect to the products incorporating Cree and Tekcore chips, as neither the Kessler Doctrine nor claim preclusion would apply.

Trustees of Boston University v. Everlight Electronics Co., Ltd. et al. (13-cv-12335).

This patent litigation resulted in the overturning of a jury verdict of infringement and invalidation of the sole asserted claim as not enabled. The claim , which covered semiconductors used in LED’s, recited a substrate consisting of a material selected from a group of six different compositions, with a non-single crystalline buffer layer grown thereon and a growth layer grown on the buffer layer. The term “non-single crystalline buffer layer” was construed to cover polycrystalline, amorphous, or mixed polycrystalline and amorphous materials, and the Federal Circuit determined that the specification did not enable growing a growth layer on an amorphous layer. In June, on return to the District Court, Judge Saris allowed in part Defendants’ request for attorneys’ fees, finding that, while the case itself was not exceptional (while Boston University ultimately did not prevail, their argument initially prevailed at trial and in post-trial briefing at the District Court level, demonstrating that it was not without merit), the conduct of Boston University’s counsel in communications with Defendants’ counsel “crossed the line of civility” and found that Defendants should recover the fees and costs associated with the two contempt motions they brought after Boston University’s counsel continued with the objectionable communications in violation of court orders. Judge Saris has now awarded $30,934 in fees, excluding time entries that did not relate or only partially related to the motions for contempt. She denied Defendants’ request for fees associated with briefing and arguing the fee request, however, finding her earlier fee award covered only the contempt motions and not the subsequent fee motion.

Nuance Communications, Inc. v. Omilia Natural Language Solutions, Ltd. (19-cv-11438).

Judge Saris denied Omilia’s motion to dismiss for lack of personal jurisdiction. Omilia, a Cyprus corporation, sought either dismissal or transfer to the Northern District of Illinois, where it concedes it has sufficient contacts to support personal jurisdiction. Looking into Omilia’s contacts with Massachusetts, Judge Saris determined that Omlilia had the necessary contacts to support personal jurisdiction. She noted that Omilia had identified Boston as its “North American Office” on its website and provided Boston contact information from 2015 to the time it received Nuance’s cease and desist letter in October 2018. Judge Saris further did not credit Omilia’s attempts to identify its Boston contact person as an independent contractor, because Omilia’s website had indicated that he was the company’s “employee number 6” in 2012. She further noted the LinkedIn profile of Omilia’s CEO, which indicated that he worked for Omilia in Boston. Finally Judge Saris pointed to Omilia’s having a physical address in Boston (a WeWork location which served primarily as a mailing address) and Omilia’s presentation at a conference in the state. She found each of these supported purposeful availment. She then looked to the relatedness of these contacts with the asserted patent infringement. Noting that Federal Circuit law on this subject was more permissive towards finding relatedness than many of the other Federal Circuit’s law, she determined that Omilia’s attempts to market and sell accused products to customers in Massachusetts (which occurred at least in part through these contacts) was enough. Finally, Judge Saris determined that hailing Omilia into a Massachusetts court was not unreasonable, because Massachusetts has a strong interest in protecting Nuance, a Massachusetts company, from infringement, that Omilia had not overcome. As a result, this case will proceed in Massachusetts.

Emrit v. National Football League et al. (19-cv-12272).

On November 4, 2019, Ronald Satish Emrit filed a pro se lawsuit against the NFL, the Washington Redskins, and Daniel Snyder, the Redskins’ majority owner. Emrit claimed to be both Native American and African American, and sought to institute a class action case for trademark infringement for misappropriating the image of a Native American person as the Redskins’ logo, as well as defamation against Native Americans as a class. The case was assigned to Judge Saris, who has now dismissed the complaint as being essentially duplicative of a number of prior-filed suits. Emrit first filed against the NFL on October 10th in the Eastern District of Virginia, the District of Maryland, and the District Court for the District of Columbia. He subsequently filed the same case in the Southern District of Iowa and the Middle District of Florida before filing the Massachusetts case.

Emrit is a frequent pro se plaintiff, and has been deemed a vexatious litigant in multiple district courts. This practice of filing the same claims in multiple courts no doubt contributes to this characterization.

Intellectual Ventures I, LLC et al. v. Levono Group Ltd. et al. (16-cv-10860/10868).

Judge Saris denied defendant NetApp’s motion for leave to amend and supplement its invalidity contentions for failure to demonstrate good cause as required by the local rules. NetApp, who was sued separately from Lenovo and EMC but whose case was joined, failed to connect its proposed amendment to the claim construction ruling, and waited a year between discovering the new prior art and seeking to amend. Given this, and that fact discovery is now complete and expert disclosures are imminently due, Judge Saris determined that the case “is aging and needs resolution.”

JW Reilly LLC v. Bally Americas Inc. et al. (19-cv-11007).

JW Reilly, a business run by Judith Reilly to sell her sterling silver products, sued Swiss shoemaker Bally, accusing Bally of infringing a design patent on a shoe buckle. The design, set forth in U.S. D667,212, appears to be a clip-on accessory, as opposed to a true buckle, that has a rectangular face and that clips over the front, toe portion of a shoe. JW Reilly sells buckles asserted to be embodiments of the design patent in which the buckle can be engraved with wording, initials or a design. shoebuckles1

Ms. Reilly asserts that she approached the manager of Bally’s Copley Place store in 2013 to discuss hosting a fund-raising event to support the Boston One Fund, a charity to assist families of those killed or injured in the Marathon bombing. In connection with her proposal, she asserts that she provided a description and photograph of her buckles that specifically indicated that they were protected by the ‘212 patent. Bally’s declined to participate in the proposed fund-raiser. bally-pink-purple-heline-pumps-pink-product-0-957859960-normal

Ms. Reilly indicates that she subsequently became aware that Bally was offering three shoe designs that included buckles that she believes to be infringements of her patent. She asserts that Bally copied her design. The case has been assigned to Judge Saris.