DUSA, a New Jersey company, accuses Biofrontera of infringing U.S. Patent Nos. 8,216,289 and 9,723,991 by making and selling their BF-RhodoLED product, an LED lamp used for treatment of actinic keratosis and other non-melanoma skin cancers. Both patents are directed to “photodynamic therapy” lamps and methods of using the same, which involve combining photosensitizer drugs with light sources in a way that targets only the cancer cells being treated, and not healthy cells. Willful infringement is alleged, based on statements in Biofrontera’s annual reports that identify DUSA as a direct competitor and indicate that Biofrontera regularly reviews “the current patent situation” and that Biofrontera is aware of the DUSA products covered by the two patents. Inducement and contributory infringement are claimed in addition to direct infringement. The two patents claim a priority date of May 1, 1998, putting them near the end of their lifespans; DUSA is nevertheless seeking injunctive relief in addition to damages.
Oomph Hair filed suit against Hair Illusions and its founder, Salvatore Passariello, accusing them of infringing Oomph’s trademark, cybersquatting, falsely disparaging Oomph products, and other forms of unfair competition, as well as seeking declaratory judgment that Hair Illusion’s “hairline enhancement” trademark application is invalid as merely descriptive. Hair Illusions is purported to control 90% of the real hair fiber market (real hair fiber is, as near as I can tell, small hair fibers, that are temporarily adhered to natural hair, making thinning hair look fuller). Oomph claims that Hair Illusions uses unfair and tortious means to maintain this market share, such as threatening Oomph and Oomph customers with patent lawsuits, despite having no patent to assert (Passariello had a pair of application undergoing prosecution at the time; they have since gone abandoned). Oomph also asserts that Hair Illusion registered domain names confusingly similar to Oomph’s registered HAIR FUSION trademark, which disparage Oomph’s product (e.g., alleging that the product contains parasites) and redirect customers to Hair Illusion’s on-line store. Oomph seeks preliminary and permanent injunctive relief, transferal of the offending domain names, and monetary damages. Oomph filed a motion for a preliminary injunction concurrently with the filing of the complaint. Judge Zobel scheduled a hearing on the motion for March 28.
Schneider Electric USA and Keysight Technologies were sued by Great Boston Authentication Solutions, LLC (“GBAS”). In separate filings, GBAS accuses the two of infringing U.S. Patent Nos. 5,982,892, 6,567,793 and 7,346,583, all directed to remote authorization for unlocking electronic data. GBAS asserts that license management and authentication software employed by the two infringe each patent. All of the patents, which are related as family members to one another, expired in December; accordingly, while damages are sought, there is no prayer for injunctive relief. These new cases appear to be a part of a concerted effort to assert the patents that began just after they expired; for example, three additional cases were filed in Massachusetts in February. The Schneider case is before Judge Casper, while the Keysight case has been assigned to Judge Talwani.
Office supply company W. B. Mason filed a declaratory judgment action against Dairy Queen, seeking the right to continue use of the mark BLIZZARD for paper products and spring water. W. B. Mason registered the marks BLINDING WHITE BLIZZARD 78 COPY PAPER and BLIZZARD BLINDING WHITE COPY PAPER, and sought to register the marks BLIZZARD SPRING WATER and WHO BUT W.B. MASON’S BLIZZARD SPRING WATER; the latter two applications were opposed by Dairy Queen. Settlement negotiations ensued. W. B. Mason asserts that recently, after lulling W. B. Mason to hold off on further action while his client was out of town, Dairy Queen’s attorneys filed suit in Minnesota (18-cv-00693) claiming trademark infringement and dilution. In light of this, W. B. Mason asserts that the “first-to-file” rule should not apply or, alternatively, an exception to the rule should control, and the case should proceed in Massachusetts rather than Minnesota. The case has been assigned to Judge Gorton.
The Federal Courts in Boston and Worcester are closed today in light of the storm. The Springfield court will, however, be open, albeit with limited staffing.
Biotechnology company Glycosyn sued German company Jennewein, accusing it of infringing U.S. Patent 9,453,230 by manufacture and sale and/or importation into the United States of human milk oligosaccharide products produced by engineered E. coli bacterial strain. These products, which are believed to treat or prevent infections in infants, are intended to be added to formula strains to provide their benefits to infants not being breast-fed. Jennewein sought and obtained FDA approval to bring its products, sold under the name “Mum’s Sweet Secret,” into the country in November 2015, while the ‘230 patent was still pending.
Judge Sorokin sua sponte bifurcated Rolling Optic’s inequitable conduct defense from the impending jury trial, noting that submitting it to the jury would require consideration of evidence not relevant to anything else before the jury. Judge Sorokin apparently believes the jury will have more than enough on its hands in dealing with the remaining issues in the case, which involves patents covering micro-optic foils that produce a 3-D holographic image, as he also indicated that, while he would not automatically exclude jurors lacking a certain level of education, he would inquire as to potential jurors’ education and interest in learning about the technology. The bifurcation order is Judge Sorokin’s second sua sponte decision in this case; in January, he sua sponte granted summary judgment of definiteness in favor of Crane Security.