Stross v. IvyMedia Corporation et al. (18-cv-10240).

After photographer Alexander Stross sued Ivymedia for copyright infringement relating to IvyMedia’s alleged use of a Stross photograph in its on-line advertising, Judge Sorokin denied IvyMedia’s motion to dismiss for failure to state a claim on which relief could be granted. IvyMedia subsequently answered and counterclaimed for extortion and fraud. Stross moved to dismiss the counterclaims as being legally and factually baseless and designed to drive up the costs of litigation. Stross further sought an award of attorneys’ fees as a sanction for IvyMedia’s continued baseless motion practice. Judge Sorokin granted Stross’ motions and awarded Stross $9671.09 in fees and costs in connection with the motion to dismiss.

Xiao Wei Yang Catering Linkage In Inner Mongolia Co., Ltd. et al. v. Inner Mongolia Xiao Wei Yang USA, Inc. et al. (15-cv-10114).

Judge Casper granted Defendants’ renewed motion for attorneys fees, finding the case exceptional under 35 U.S.C. § 1117(a), which allows for the award of fees to the prevailing party in exceptional cases. She had previously granted summary judgment in favor of the Defendants on all issues. Judge Casper, applying the Supreme Court’s 2014 Octane Fitness guidance in the analysis of whether a patent case is “exceptional” pursuant to 35 U.S.C. § 285, found that sanctions had already been imposed on the Plaintiff for their litigation conduct, repeatedly failed to meet court-imposed deadlines, submitted filings that failed to provide sufficient support for their positions, and otherwise engaging in unreasonable conduct. Moreover, she determined that the plaintiffs’ substantive positions following the completion of discovery were weak and that they failed to produce any evidence of damages. Judge Casper found that Defendants need to be compensated for discovery-related motion practice and for prolonging litigation after discovery through summary judgment. She ordered Defendant to submit its request for fees from the denial of their motion to dismiss forward, excluding fees that had already been awarded through discovery sanctions.

Acushnet Company v. Golf Gods Pty ltd. (18-cv-12093).

Acushnet filed an amended complaint, adding a claim that Golf Gods infringes Acushnet’s D763,682 design patent covering the ornamental design of its golf ball packaging. This adds to the trademark and trade dress infringement claims previously filed by Acushnet, which makes Titleist and Footjoy golf products.

CardioNet, LLC et al. v. Infobionic, Inc. (17-cv-10445).

Judge Talwani granted Infobionic’s motion to dismiss, finding the claims in suit were directed to patent-inelligible subject matter. CardioNet accused Infobionic of infringing U.S. Patent 7,941,207, titled “Cardiac Monitoring,” by sales of its MoMe Kardia System. The patent concerns monitoring electrical activity of the heart to identify atrial fibrillation and atrial flutter, two forms of arrhythmia, in ambulatory (i.e., not bed-ridden) patients. Judge Talwani noted that dismissals founded on § 101 invalidity were approved by the Federal Circuit in their 2018 Aatrix Software decision, applying the non-moving party’s proposed claim construction where construction is necessary. Here, Judge Talwani found the claims were directed to the abstract idea of looking at the variability in time between heartbeats and taking into account ventricular beats, a method of diagnosis that had long been used, and that the claims merely applied conventional computer components to that idea. She rejected CardioNet’s argument that the improvement to the field of cardiac telemetry necessarily translated into an improvement in computerized technology that would take the claims out of the Alice analysis. Having determined that the claims are directed to a natural phenomenon under the first step of the Alice, Judge Talwani went on to find that the algorithms used in the analysis would not suffice to result in eligibility, because Alice forceloses eligibility based on the implementation of a mathematical principal on a computer.   The claims themselves used terms like “variability determination logic” and “relevance determination logic;” Judge Talwani noted that CadioNet failed to identify what aspect of these logic systems described in the specification made the claims patent-eligible, and further noted that “determination logic” is not defined or used in the specification. As such, it would cover any form of logic, and provides no meaningful limitation on the claims that would render them eligible. Accordingly, the complaint was dismissed.

Nike, Inc. v. Puma North America, Inc. (18-cv-10876).

Nike sued Puma for infringement of seven Nike patents covering shoes having knitted upper, and alleged that after it notified Puma about the patents prior to filing suit, Puma not only failed to cease making and selling the accused products, Puma also introduced new shoes to the market that infringed the patents. Puma moved to dismiss the claims with respect to two of the patents as directed to non-patentable subject matter, asserting that one was directed to the abstract idea of forming an outline pattern on a textile and does not disclose an inventive step towards achieving the outline pattern, and that the second is directed to the abstract idea of generating a visual pattern on a textile, which is nothing more than a non-patentable work of art. Judge Sorokin disagreed, finding that the claims, which were directed to tangible manufactured items (i.e., shoes) or to physical components thereof or methods of manufacturing the same, they passed muster under the first prong of the Mayo test as being directed to a statutorily provided category of patent-eligible subject matter. He further noted that, even if they did not, Puma had not met its burden of demonstrating by clear and convincing evidence that the claims lacked an inventive step that would meet the second prong of the Mayo test. Judge Sorokin also denied Puma’s motion to dismiss the willfulness charges, finding Puma’s suggestion that more must be pled than knowledge of the patent and continued infringement remained an open question (albeit one that other Massachusetts judges had found incorrect), but that Nike had sufficiently pled additional facts that would support a finding of willfulness.

Boston Heart Diagnostics Corp. v. GeneAlign, LLC (17-cv-11412).

Judge Talwani found GeneAlign in default after it failed to respond to Boston Heart Diagnostic’s patent infringement complaint and entered an injunction barring GeneAlign from making, using, selling or offering for sale any SLCO1B1 test. She further awarded BHD costs and fees totaling $15,641.49 after determining, taking the allegations of the complaint as true, that the case was exceptional under 35 U.S.C. § 285.

Acushnet Company v. Golf Gods Pty ltd. (18-cv-12093).

Acushnet, the maker of Titleist golf equipment, filed suit against Australia’s Golf Gods, accusing them of violating Titleist trademarks through Golf Gods’ sale of apparel bearing a “TITTIES” mark in the Titleist stylized script, “HOE V1” (instead of “PRO V1,” a Titleist golf ball), and a few other racy take-offs on Titleist marks. Titleist also asserts that golf balls sold by Golf Gods infringes the trade dress of Acushnet’s TITLEIST PRO V1 packaging.

Titleist asserts (and is almost certainly correct) that its marks are famous, and accuses Golf Gods of intentionally creating an “unwholesome and undesirable association” in consumers’ minds, thereby tarnishing the Titleist marks. Titleist asserts trademark infringement, false designation of origin, unfair competition, and trademark dilution under both state and federal law. Judge Boal has the case.