Purdue Pharma LP et al. v. Collegium Pharmaceutical, Inc. (17-cv-11923).

Purdue Pharma sued Collegium for infringement of U.S. Patent Nos. 9,522,919 and 9,073,933, which relate to oxycodone hydrochloride compositions and formulations. The suit is based on Collegium’s submission of a supplemental New Drug Application seeking approval for revised labeling for Collegium’s Xtampza® oxycodone extended release capsules.  Purdue has been pursuing claims against Xtampza® for some time now, beginning in March 2015, and most recently on September 21, 2017, as discussed here.

Malden Transportation, Inc. et al. v. Uber Technologies, Inc. et al. (16-cv-12538).

Judge Gorton consolidated seven different antitrust actions against Uber for pretrial purposes. Each complaint asserted substantially similar claims and operative facts and involved the same defendants.  The main difference in the lawsuits related to alleged violations of local transportation ordinances, and the different cases generally grouped cab companies from individual cities or towns together – I previously commented on the Boston action here.  Judge Gorton reserved the question of whether to consolidate the cases for trial.  He also set a schedule for Uber’s motion to dismiss, indicating that a decision will issue on the request for dismissal by the end of the year.

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

John Mahoney and the Atomic Café accuse Kyle and Peter Roy and their companies Cold Brew Ventures, LLC, and Lean & Local, LLC, of trademark infringement, trade secret misappropriation, breach of contract, and various other state law claims. The complaint alleges that the defendants, who operate under the names LeanBox (which delivers vending machines and provides vending services) and Grind (which provides coffee products that are offered through LeanBox’s vending services), induced Mahoney to enter into a joint venture to produce and market his cold brew products on  a larger scale.  The joint venture, Cold Brew Ventures, designed and configured a production facility largely at Mahoney’s direction.  The group agreed to the terms by which Mahoney would provide expertise to the venture – he was to receive a 25% equity stake in the facility and a fixed salary; yet once the facility became operational and his trade secret information had become known to them, the defendants refused to sign and unilaterally withdrew from the agreement.  The defendants are accused of using two registered trademarks covering ATOMIC COFFEE ROASTERS, which Mahoney had used in his three retail shops and a manufacturing facility that makes cold brew coffee, latte, and tea.  They are also accused of misappropriating proprietary information relating to Mahoney’s cold brew formulas and processes, as well as business information and contacts.

Avigilon Corporation et al. v. Canon, Inc. (17-cv-11922).

Avigilon filed suit against Canon, seeking declaratory judgment that its cameras and camera software do not infringe various Canon patents. Earlier this summer, Canon had sued Avigilon for patent infringement in the Eastern District of New York.  After Avigilon indicated it would move to transfer the case to Massachusetts, Canon filed a notice of voluntary dismissal.  Avigilon seeks declarations that U.S. Patent Nos. 6,580,451, 6,911,999, 7,0344,864, 7,321,453, and 9,191,630 are not infringed and are invalid and/or unenforceable.

It will be interesting to see whether the sufficiency of the pleading is challenged. The Iqbal/Twombly standard has been found not to apply to affirmative defenses, thus allowing generically pled affirmative defenses of non-infringement and invalidity to stand.  Earlier this summer, however, in the case of PetEdge, Inc. v. Marketfleet Sourcing, Inc. d/b/a Frontpet (16-cv-12562), Judge Saylor dismissed similar bare-bones non-infringement and invalidity pleadings when presented as counterclaims.

Ethicon Endo-Surgery, Inc. at al. v. Covidien LP et al. (16-cv-12556).

Judge Sorokin denied Covidien’s motion for a preliminary injunction that sought to bar sales of Ethicon’s Enseal® X1 Large Jaw Device, a surgical tool that allows a surgeon to grasp a vessel between two jaws, apply energy to the jaws to for a seal, and cut the now-sealed vessel. Prior to the introduction of this device, Covidien was the market leader in such instruments that used bipolar (or radiofrequency) energy to seal the vessel.  Since its introduction in March 2017, the X1 Large Jaw has generated $7.8 million in revenue.  Covidien contends that the X1 Large Jaw infringes U.S. Patent No. 8,241,284, which claims vessel sealing devices having non-conductive stop members that maintain a constant distance between the jaw surfaces along the length of the jaws.

Because Ethicon raised a substantial question of non-infringement, Covidien was unable to demonstrate a likelihood of success on the merits. Of interest, while both parties sought to have the claim terms given their plain and ordinary meaning, the parties disagreed as to what that meaning was, with Ethicon urging a meaning that took its product out of infringement.  Judge Sorokin determined that “Ethicon’s proposed meanings are at least sufficiently persuasive to raise a substantial question regarding the ‘plain and ordinary’ meanings of the relevant terms.”  In addition, Judge Sorokin found that Covidien failed to show a nexus between the claimed elements of the device and the success of the X1 Large Jaw.  Ethicon provided evidence that sales of the X1 device were driven by factors, such as better ergonomics, ease of use, availability of sealing separately from cutting, and price, that were unrelated to the claimed elements.   Accordingly, Covidien did not show irreparable harm “resulting from the alleged infringement.”

The Life Is Good Company v. MyLocker.com, LLC et al. (17-cv-11911).

The Life Is Good Company sued MyLocker.com, Namecheap, Inc., and RamNode LLC for infringing its LIFE IS GOOD trademark, as well as trademark registrations on the “Jake” and “Jackie” symbols that cover the cartoon male and female figures that appear on Life Is Good clothing and merchandise.

LIG alleges that the defendants provide services to the website www.lifeisgoodshirt.com that utilizes LIG’s trademarks and through which counterfeit LIG merchandise can be purchased.  Specifically, LIG alleges that MyLocker provides the software that allowed the LIFEISGOODSHIRT operator to set up the website, process payments, and fulfill orders; Namecheap provides website/server management services; and RamNode hosts the website. (Notably, LIG is not suing the actual operator of the website/maker of the counterfeit goods, and does not identify such entity in its complaint).  LIG further alleges that the latter two defendants failed to respond to complaints from LIG and thus cannot show that they have complaint procedures that meet the requirements of the Digital Millenium Copyright Act’s “safe harbor” provisions.  LIG also brings counts for unfair competition and passing off, contributory trademark infringement, and counterfeiting, the last of which provides for statutory damages.  In addition to the complaint, LIG moved for a preliminary injunction.  Note – as of this morning, the LIFEISGOODSHIRT website appears to have been taken down.

Smart Wearable Technologies Inc. v. Tomtom, Inc. (16-cv-00049, W.D. Virginia).

Judge Glen E. Conrad of the Western District of Virginia granted defendant Tomtom’s motion to transfer venue to the District of Massachusetts.  The complaint, for patent infringement, was filed in July 2016, yet Tomtom’s motion was not filed until after the TC Heartland decision holding that venue is restricted to the state of incorporation or a venue in which the defendant both has a regular place of business and has committed acts of infringement.  Tomtom is not incorporated in Virginia and has no regular place of business there.  In response to the motion, Smart Wearable acknowledged that venue in Virginia is not proper under TC Heartland, but argued that Tomtom waived its venue challenge  by failing to raise it earlier.

When faced with a similar situation, Judge Young of the District of Massachusetts denied the motion to transfer, finding that TC Heartland was not a change in the law that allowed for the late filing of a venue motion.  In Virginia, however, Judge Conrad determined that TC Heartland “significantly changed the law of venue” in patent cases , and that, “as a practical matter,” the motion to transfer was not available to Tomtom prior to that decision.  While these decisions are on their face contradictory, it may be the result of differences in controlling circuit law – Judge Conrad specifically cited to a Second Circuit holding that a defense cannot be waived where it was directly contradictory to then-existing circuit precedence.