Crane Security Technologies, Inc. et al. v. Rolling Optics AB (14-cv-12428).

Crane sued Rolling Optics, asserting infringement of five patents relating to micro-optics systems that project synthetically magnified images. They accuse Rolling Optics of infringing directly and inducing infringement through sales of micro-optic foils that are formed into 3-D holographic-style labels.  The patents cover planar arrays of image icons and focusing elements, with an optical spacer or substrate therebetween.  Judge Sorokin ruled in Crane’s behalf on a series of summary judgment motions filed by the parties.  He denied Rolling Optics’ argument that two claim terms were indefinite, finding that the claims, specification and prosecution history provided enough specificity to survive.  Instead, he sua sponte granted summary judgment that the terms are definite, despite Crane not having so moved, noting that the briefing provided adequate notice to Rolling Optics, there was ample discovery on the issue, and there were no factual disputes relevant to the issue.  Judge Sorokin denied summary judgment of invalidity over prior art, in part because assumptions of Rolling Optics’ expert regarding spacing of critical elements taken from figures in the prior art were disregarded because the prior art figures were not drawn to scale.  While finding the patents in suit were not entitled to claim priority to a provisional application that was not specifically referenced in the patent applications, Judge Sorokin denied summary judgment of invalidity due to the on-sale bar due to the existence of fact issues relating to whether potentially prior uses were experimental or were on-sale bars.  Summary judgment of infringement was granted as to certain products that Rolling Optics failed to provide evidence of non-infringement due to the low volume of potentially infringing sales, and as to other products on which Rolling Optics’ claim construction arguments did not prevail.  Rolling Optics’ motion for summary judgment was denied with respect to induced infringement, because the evidence laid forth a factual dispute over whether Rolling Optics knew that labels it sold were being applied to products sold in the United States.  Finally, Judge Sorokin found factual issues in dispute regarding the language of an early notice letter regarding the patents and denied Rolling Optics’ motion for summary judgment with respect to notice and damages.

Andover Healthcare, Inc. v. Johnson & Johnson Consumer Inc. (17-cv-10620).

Judge Sorokin denied Johnson & Johnson’s request to extend the time for amending the pleadings. Andover Healthcare accuses Johnson & Johnson of making false statements that certain products did not contain latex, when in fact they did.  The Rule 16 deadline for amending the pleadings having passed, Johnson & Johnson sought additional time to consider bringing claims against some of its suppliers for including latex from products made for Johnson & Johnson in violation of contractual requirements to exclude latex from the products.  Judge Sorkin denied the motion, noting that the contracts with the suppliers required potential violations to be addressed via arbitration rather than in court.

ConnectQuest, LLC v. Swirl Networks, Inc. (18-cv-10154).

ConnectQuest accuses Swirl Networks of infringing several patents relating to proximity-based electronic communications for local marketing and informational purposes such as advertising, loyalty bonuses and discounts to customers in or near a physical store. The patented technology is said to be embodied in ConnectQuest’s “CQ™ Beacon” product and associated “CQ™ App.”  ConnectQuest asserts that Swirl’s “Swirl Beacon” product and associated software development kits and apps infringe ConnectQuest’s patents.  The case has been assigned to Judge O’Toole.

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.”