Following up on Friday’s post, Judge Talwani’s Order enjoined the use of The Atomic Café’s trademarks in written and electronic material, but denied the injunction without prejudice with respect to retail sales of Plaintiff’s prepackaged coffee beans, based on Plaintiff’s assertion at argument that it was not seeking to enjoin this use of the mark.
I am in San Francisco for the next few days, at the International Network of Boutique and International Law Firms (INBLF) Annual Meeting. This is a vetted network of boutique law firms that together provide a full range of legal services, while providing the focus on client service that comes with a smaller firm that focuses on a particular area of law. My firm, Lando & Anastasi, is the intellectual property firm of the Boston chapter of the INBLF. I will be posting on IP events in D. Mass. while I am here, but the posts may go up later in the day than is typical.
Judge Young is known in this district for keeping his cases moving. He lived up to that reputation last week, issuing an order denying a motion to continue a bench trial regarding claims of patent infringement based on the filing of an Abbreviated New Drug Application (ANDA). Three days of trial had occurred in March, at which point the Abhai discovered that certain of the tests, the results it had produced in discovery, had been incorrectly performed. Abhai moved to amend its pretrial memorandum to include eight additional exhibits related to the faulty nature of the testing; Judge Young granted the motion but suspended the trial to permit discovery on this new evidence. Shire LLC v. Abhai LLC (15-cv-13909). With trial set to resume in early September, Shire moved for a further continuance of the trial to permit the discovery of new evidence that Shire asserted was relevant to the issue of infringement. One week prior to Shire’s motion, the FDA refused to approve Abhai’s ANDA and directed Abhai to redo all bioequivalence testing on newly created batches of product. Shire contended that the prior product, on which all existing evidence at trial was based, might not be representative of the product that ultimately is approved for sale. Judge Young denied the motion, citing the profound public policy reasons favoring expeditious adjudication of claims brought under the Hatch-Waxman Act (although he declined to identify any in his order).
Silkeen LLC filed suit in the District of Massachusetts yesterday, alleging that Zoll infringes U.S. Patent No. 7,944,469, titled “System and Method for Using Self-Learning Rules to Enable Adaptive Security Monitoring. Silkeen identifies itself as a Texas limited liability company with a principal place of business in Plano, Texas, a common location for non-practicing entities, leading me to believe that in years past, this suit would have been filed in the Eastern District of Texas. Silkeen alleges that Zoll infringes the ‘469 patent through its making and selling of monitor defibrillators, specifically Zoll’s “R Series Monitor Defibrillators.” Many of the allegations relating to specific limitations being found in the Zoll product are “on information and belief,” suggesting that Silkeen has not thoroughly analyzed the accused product.
Silkeen appears to be a non-practicing entity whose business consists solely of bringing infringement lawsuits. An internet search turns up no information on the company other than a series of infringement suits involving the same patent against twenty-six other entities. All twenty-two of Silkeen’s filings prior to 2017 (and thus prior to TC Heartland’s limiting of venue in patent lawsuits) were filed in the Eastern District of Texas. I further note that Silkeen is represented by Ferraiuoli LLC, the same Puerto Rican law firm that sued FitnessKeeper on behalf of Venus Locations LLC, another Plano Texas non-practicing entity, on August 17th.
Stellar Records, LLC sued David Pantano for copyright infringement related to the manufacture and sale of music and karaoke recordings. According to the complaint, Stellar Records obtains the rights to a large number of songs, which it then re-records without lead vocals and connects to video files containing the lyrics. Stellar then compiles these karaoke versions of songs into packages, which it sells to karaoke disc jockeys. Stellar alleges that Pantano copied several of these packages and sold them via Craigslist. Both direct and contributory copyright infringement are alleged.
A large number of Boston cab companies filed a second amended complaint against Uber, adding ten new companies as plaintiffs to bring the total number of plaintiffs to one hundred and ninety-six. The cab companies allege that Uber controls 80% of the ride-hail market, which is defined as the “low-cost, on-demand, Ride Hail ground transportation services that originate in Boston and that seat 3-4 passengers.” The complaint is specifically addressed to “UberX,” one of Uber’s lower cost options. There are counts for unfair competition under MGL c. 93A, Section 11 and common law unfair competition for operating a transportation service without complying with the laws of Boston and Massachusetts, thus obtaining customers who would otherwise use cab services and devaluing taxi medallions; attempted monopolization, under the Sherman Antitrust Act and under M.G.L. 93A, Section 5, of the Boston “ride-hail” market (somewhat ironically alleging that the purpose of the Act is to “preserve and advance our system of free and open competition and to secure to everyone an equal opportunity to engage in business, trade and commerce for the purpose of ensuring that the consuming public may receive better goods and services at lower cost”). The original complaint followed three other complaints brought by multiple cab companies from Malden, Braintree and Cambridge, each with similar allegations.
The lawsuit follows legislative action, under which the state will impose a 5-cent fee on every trip taken with Uber and Lyft, and funnel that money as “financial assistance” to their taxi competitors. Prior to the introduction of companies like Uber and Lyft, taxi medallions in Boston were capped at 1,825, and sold for as much as $700,000 as late as 2014. In 2014, taxi medallion sold for as much as $700,000. Since the introduction of ride-hail companies, however, taxi ridership dropped about 25%, and the average price for a Boston taxi medallion dropped about 40 percent.
Venus Locations LLC sued FitnessKeeper, Inc., alleging infringement of U.S. Patent No. 6,442,485, titled “Method and apparatus for an automatic vehicle location, collision notification, and synthetic voice.” The plaintiff appears to be a non-practicing entity residing in Plano, Texas, and has sued at least two other companies (Inrix Inc. and Nextraq, Inc.) on the same patent in the Eastern District of Texas. The plaintiff is represented by Ferraiuoli LLC, a Puerto Rican law firm with attorneys admitted in Massachusetts.
Judge Gorton granted the plaintiffs’ motion in limine to exclude Zoll’s expert from testifying about the invalidity of claims of two patents in defense of charges of willful infringement of a third patent. His reasoning was two-fold; first, the invalidity of claims from a different patent is not probative of whether infringement of a third patent was willful, and second, invalidity was first found on appeal, well after the infringement occurred, and thus the invalidity of the claims of the other patents could not serve as evidence of the state of mind of the infringer under the Supreme Court’s Halo decision of 2016.