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.

Veveo, Inc. v. Comcast Corp. et al. (18-cv-10056).

Veveo filed suit against a variety of Comcast entities alleged to do business in Massachusetts, accusing them of infringing U.S. 7,779,011 and 7,937,394, which relate to network-based searches on cable set-top boxes and other devices using numeric keypads. Veveo alleges that it had provided information on the technology to Comcast under a confidentiality agreement, and Comcast eventually licensed the technology.  When Comcast developed its own search technology and terminated the license in 2013, Veveo sued Comcast for patent infringement, which it voluntarily dismissed after Comcast assured Veveo it would reenter business dealings with Veveo.  A second suit was filed in 2016 in the Sourthern District of New York, asserting the patents-in-suit as well as others belonging to Rovi, Veveo’s corporate owner; that case is stayed pending inter partes review of the ‘696 patent and the Rovi patents.  An ITC complaint was also filed by Rovi, resulting in a ban on importation of Comcast infringing set-top boxes.  Veveo asserts that, despite the ITC ruling and the fact that every other major pay-TV provider in the United States licenses the Rovi/Veveo technology, Comcast continues to provide infringing search functionality without taking a license.  Veveo seeks preliminary and permanent injunctions and enhanced damages for willfulness.

The Atomic Café et al. v. Roy et al. (17-cv-11927).

Judge Talwani allowed in part and denied in part a joint motion for a protective order. The motion was allowed insofar as it governed exchange of documents and information between the parties.  The motion was denied without prejudice, however, insofar as it purported to designate what the court would allow to be filed under seal.  In keeping with past practice, Judge Talwani propounded a strong defense of the presumptive public right of access to judicial documents, whereby only the most compelling reasons would permit the filing of documents.  To that end, a party seeking to impound must show, on a document-by-document basis, a particular factual demonstration of potential harm by making a document or other information public.