Judge Young, tired of discovery disputes this case, put forward a new approach on Wednesday. With five trial days coming up in early September and the parties contending that relevant documents still had not been produced, Judge Young stated that no party would be allowed to introduce into evidence anything that had reasonably been called for but not produced prior to Monday, August 21, and that he would draw an adverse inference at trial against any party found not to have produced relevant and responsive documents. Effectively, he is inviting the parties to either cooperate or to dig their own graves.
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.
Milk Street Cafe, a café and catering business located on Milk Street in Boston, sued CPK Media when the latter opened the “Craig Kimball’s Milk Street Kitchen” (they have since dropped the word “Kitchen”), a cooking school also located on Milk Street. Judge Casper last year denied Milk Street Café’s motion for preliminary injunction, finding it had not shown a reasonable likelihood of success. After a bench trial, the court concluded that the defendant had rebutted the presumption of secondary meaning that came with the registration of the mark “Milk Street Café,” based largely on the fact that only the defendant offered consumer survey evidence on this issue. The court also determined that there was no likelihood of confusion, in part because the only real similarity of the marks was the phrase “Milk Street” in which Milk Street Café had no trademark rights and because the goods and services – breakfast and lunch restaurant and corporate catering by Milk Street Café versus cooking demonstrations and classes by the defendant – were not similar. Judge Casper found no trademark infringement, no false association, and no unfair competition. He did, however, refuse to cancel Milk Street Café’s trademark registration, finding the defendant had not shown that it would be damaged by the continued registration of the mark.
Judge Zobel entered final judgment in accordance with the December 14, 2016 jury verdict and her April 24, 2017 Order. The final judgment included:
- direct and indirect willful infringement of U.S. Patent 5,229,137;
- ‘137 patent valid over the prior art of record;
- Perrigo was not entitled to a laches defense because plaintiffs knew or should have known of infringement only as of August 2008, too recent for laches to apply;
- Damages of $10,210,071;
- Attorneys’ fees were not awarded, as the defense, while not successful, was not frivolous or vexatious, as Perrigo had investigated infringement and invalidity before filing its ANDA application ad Brigham’s corporate witness testified that it did not immediately bring suit for fear of losing royalties should the claims be found invalid; and
- Enhanced damages would not be applied, despite the jury’s finding of willfulness, in part because the awarded damages were at the high end of those sought.
Judge Zobel’s April order was interesting in that she found that final judgment had previously been entered, triggering the timelines of Fed R. 50(b) and 59(e), which could not be expanded by the district court, despite her having granted a joint motion to extend the deadline. Thus, Perrigo’s renewed motion for judgment as a matter of law was not timely filed, and its notice of appeal was also late.
WorldCare Limited Corp. sued NOW Health International (Holdings) Ltd. for breaching a trademark license and co-existence agreement and for trademark infringement. WorldCare and NOW had previously had a dispute over the use of the “WorldCare” name. The parties resolved the dispute by entering into an agreement by which NOW was granted the right to use the mark to sell health insurance, but was prohibited form offering “second opinion” medical advice services in connection with its “WorldCare” policies, as that was the nature of WorldCare’s business. Jurisdiction and venue over NOW, a Bermuda company with no physical presence in the United States, is based on a clause of the 2013 agreement.
Algorithms for Success, Inc. (“AFS”) yesterday sued former employee Michael Fritz for breach of contract, breach of duty of loyalty, misappropriation of legally protected information, violation of M.G.L. 93A, inevitable disclosure, breach of the Computer Fraud and Abuse Act and the Defend Trade Secrets Act, and unfair competition. AFS is a business and career coaching and event management company for whom Fritz was a vice president with access to AFS’ customers and confidential information. Fritz signed non-compete, non-solicitation, non-disclosure and assignment agreements with AFS. AFS’ allegations are that a forensic analysis of Fritz’s work computer revealed that he accessed thousands of confidential records and attached external storage devices such as thumb drives and external hard drives to the computer in the days immediately before his last day of work. AFS seeks the return of its confidential and proprietary information, forensic access to Fritz’s personal computers and other devices, temporary, preliminary and permanent injunctions preventing further use or dissemination of AFS’ confidential and proprietary information and preventing Fritz from working for any employer who performs services for AFS customers with whom he worked or had access to confidential information, and compensatory and punitive dames and attorneys’ fees.
Matthew Chatham sued building company Canterbury Ventures, its owner Daniel Lewis, and real estate agent Patricia Bergevine for infringing his copyright in a house design. Mr. Chatham developed a set of custom plans for the design of a house, and has since registered his “architectural work” with the U.S. Copyright Office. He gave Canterbury permission to use the custom plans for the sole purpose of building the house for him on a lot that Canterbury was to purchase. Canterbury did not complete the house by the contracted closing date, and seven months later still had not completed the house. Mr. Chatham and his wife had earlier sued for breach of contract in state court. He filed this copyright case after learning that Canterbury was showing the partially-constructed house through defendant Bergevine, a real estate agent. The Chathams also obtained a lis pendens order, which in Massachusetts is recorded at the registry of deeds and puts prospective buyers on notice of the lawsuit, effectively clouding title on the real estate. Chatham seeks an order preventing sale of the house, that the house be placed in a constructive trust, and monetary damages and attorneys’ fees. (Full disclosure – Mr. Chatham is represented by Nathan Harris and John Anastasi of my firm, Lando & Anastasi LLP).