SAES Getters, SpA v. Materion Corp. et al. (17-cv-12113).

Italian company SAES Getters sued Ohio company Materion Corp. and Massachusetts corporation Materion Precision Optics and Thin Film Coatings, alleging infringement of a pair of patents relating to contaminant-removing materials referred to as “getters.” SAES asserts that the Materion defendants acquired infringing getter technology from Integrated Sensing Systems, with whom SAES had been discussing the asserted patents.  SAES seeks a finding of willful infringement and injunctive and monetary relief.

ASM Assembly Systems Switzerland GmbH et al. v. QTS Engineering, Inc. (16-cv-10919).

Judge Sorokin construed claim terms in a dispute over stencil printing screens for electronics manufacturing. While the particular constructions of the terms is of limited interest to those not involved in the litigation, the process by which the claims were construed is potentially worthwhile for future litigants to know.  Here, Judge Sorokin made a point of not reading limitations from the specification into the claims.  He noted that “the written description part of a specification itself does not delimit the right to exclude,” and that the specification did not expressly limit the terms in dispute.  He further refused to limit a broad claim terms because “the court cannot construe a claim to add a limitation not present in the claim itself” and because such a limitation would render claim language in a related patent superfluous.

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

Following up on Friday’s post, Judge Talwani’s Order enjoined the use of The Atomic Café’s trademarks in written and electronic material, but denied the injunction without prejudice with respect to retail sales of Plaintiff’s prepackaged coffee beans, based on Plaintiff’s assertion at argument that it was not seeking to enjoin this use of the mark.

GN Netcom, Inc. v. Online King LLC d/b/a Amazon Reseller Online King (17-cv-12097).

Headset manufacturer GN Netcom accuses electronics reseller Online King of infringing its JABRA and VXI trademarks. GN’s factual allegations are similar to those of its September lawsuit against TelQuest International; here, GN alleges that Online King buys actual GN products manufactured and sold to the international market that were not intended for sale in the United States and that are materially different than GN products intended to be sold in this country.  As a general rule, the resale of genuine trademarked goods is not infringement, under an “exhaustion” theory; this does not apply, however, when the accused party is selling goods that materially differ from those sold by the trademark owner.  The importation of “gray-market” goods, foreign manufactured goods that bear a valid U.S. trademark but that are imported into the country without the trademark owner’s consent, fall within this exception; it is not immediately clear whether goods actually manufactured in America, and GN’s complaint does not make clear where its goods intended for foreign sale are actually made.

In re: NeuroGrafix (‘360) Patent Litigation (13-md-02432).

Judge Stearns denied plaintiff’s motion to amend the complaint to add a principal-agent theory of direct infringement in a long-running multi-district litigation originally filed in 2012. Discovery in the matter was extended to August 2017, with the judge admonishing the parties that remaining discovery was to focus on new issues; Judge Stearns granted a motion to quash subpoenas directed to defendant BrainLab’s customers in September, noting that NeuroGrafix had been aware of its inducement theory of infringement for years and had no justification for waiting until the close of discovery to pursue that theory.  NeuroGrafix subsequently moved for leave to file an amended complaint, citing newly discovered evidence that BrainLab provided compensation in the form of dinners, drinks and paid consulting opportunities to neurosurgeons.  NeuroGrafix asserts that, as a result of these payments (which range from one hundred to several thousand dollars), a principal-agent relationship was formed whereby BrainLab directed  or controlled the doctors’ performance and the doctors’ actions could thus be imputed to BrainLab pursuant to Akamai Techs. V. Limelight Networks, 797 F.3d 1020 (Fed. Cir. 2015).  Judge Stearns found that the proposed complaint, which asserted that “BrainLab intends for Neurosurgeons to carry out each step” of the asserted claim was asserting induced, not direct, infringement, and NeuroGrafix had already been denied the opportunity to belatedly pursue such a theory.

Atlantis Services, Inc. v. Asigra, Inc. (16-cv-10864).

Asigra hired Atlantis to develop and provide software to Asigra, a project that was initially expected to take about a year. After agreeing to the terms for this work, Asigra sought to accelerate the completion of the project.  Asigra indicated that it could only do so by incorporating code from Atlantis’ own appliance product.  The parties orally agreed to Asigra receiving a limited right to use this code, with the parties disputing the consideration due Atlantis for this right.  After completion of the project, when a dispute arose over payment, Atlantis “unilaterally revoked the nonexclusive license” and sued Asigra for breach of contract, trade secret misappropriation, and copyright infringement, among other things.  Asigra moved for judgment on the pleadings on all counts.  Judge Hennessy granted Asigra’s motion with respect to the copyright claims, while denying it with respect to the other claims.  He determined that Atlantis had granted a nonexclusive license to the code by the parties’ oral agreement, which became irrevocable upon the payment of consideration by Asigra.  The reasoning is that, upon payment of consideration (regardless of whether it was complete consideration under the agreement) a contract has been formed, and the remedy for the aggrieved party is through contract law, not copyright.

Also of interest, Judge Hennessy determined that Asigra waived its argument that the allegedly misappropriated trade secrets were not adequately identified by raising it only in a footnote; First Circuit case law holds that arguments raised perfunctorily or solely by footnote are waived. He also denied judgment on the pleadings with respect to Asigra’s Ch. 93A claim, finding that one party’s breach of contract for the purpose of gaining leverage over the non-breaching party has been deemed an unfair business practice in Massachusetts.