Great Dane Graphics, LLC v. Vovo, Inc. and Jonathan Gosselin (18-cv-10126).

Michigan graphics company Great Dane offers subscription services that provide licenses to an extensive library of original graphic artwork for clothing such as T-shirts. Gosselin, a former employee of one such licensee, is accused of having stolen thousands of copyrighted Great Dane images from his ex-employer and using them to set up a competing screen printing business, Vovo.  Gosselin reportedly used the same selection, arrangement and coordination of the images, and even to have used the same product numbers for the images as had Great Dane.  In addition to the civil suit, it appears that Gosselin is being investigated by the Braintree police, as a police report is included as an exhibit to the complaint.  Great Dane seeks injunctive relief, statutory damages of up to $150,000 per infringement due to the alleged willful nature of the infringement, and attorney’s fees.

Foss v. Marvic d/b/a Brady-Built Sunrooms et al. (18-cv-_____).

Cynthia Foss filed a pro se complaint against Brady-Built for copyright infringement and failure to submit voluntarily to arbitration.  Ms. Foss, a photographer and graphic designer, alleges that she was commissioned to create Brady-Built’s catalog in 2006, but that other than the 2006 catalog, she retained the copyright in her work.  She asserts the continued use of the work, in catalogs and on-line, exceeds the use contemplated by her contract with Brady-Built and thus is copyright infringement.  Ms. Foss further alleges that her contract incorporates certain Articles of the Code of Fair Practice, one of which specifies that commissioned artwork is not to be considered a “work for hire.”  She also alleges that the contract includes an arbitration provision, with which Brady-Built refuses to comply.  This case will be heard by Judge Hillman.

Bokhary v. Southern Foods (17-cv-11096).

Judge Capser denied Bokhary’s motion for a preliminary injunction seeking to prevent Southern Foods from using the mark GODAVARI in connection with its Indian restaurants. Bokhary sells prepackaged rice-based food products under the mark, and has a registration, which serves as prima facie evidence that the mark is valid.  Bohkary admits, however, that the products it sells originate from the Godavari River region of India, which is known as a major source of rice and rice products, which Judge Casper found sufficient to overcome the prima facie evidence based on the registration and to suggest that the mark is merely geographically descriptive.  Bohkary propounded no evidence at this stage of the proceedings to show that the mark has secondary meaning; thus, it is not reasonably likely that Bohkary would succeed in proving that the mark is valid.  Judge Casper also found that a likelihood of confusion had not been established, because restaurant services are sufficiently distinct from retail selling of pre-packaged foods, and that the rest of the evidence thus far put forth failed to overcome the weakness of the mark (assuming it were to be valid at all).  (Full disclosure – Southern Foods is represented by Nate Harris here at my firm – congrats, Nate!).

PTO to remain open during government shutdown

The PTO announced that it will remain fully open and operational, at least during the first few weeks:

While activities across much of the federal government ceased at 12:01 a.m. January 20, 2018, due to a lack of appropriated funding, the USPTO remains operational.

This is possible because the agency has access to prior year fee collections, which enables the USPTO to continue normal operations for a few weeks. Should the USPTO exhaust these funds before a government shutdown comes to an end, the agency would have to shut down at that time, although a very small staff would continue to work to accept new applications and maintain IT infrastructure, among other functions.”

PointCare Technologies, Inc. v. MIT Koch Cancer Institute et al. (18-cv-10091).

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).

Global Strategies, Inc. v. Interbulk USA, LLC d/b/a Interbulk Express (17-cv-12166).

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.

District of Massachusetts Proposes New Local Patent Rules to Streamline Patent Litigation.

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.