Algorithms for Success, Inc. (“AFS”) yesterday sued former employee Michael Fritz for breach of contract, breach of duty of loyalty, misappropriation of legally protected information, violation of M.G.L. 93A, inevitable disclosure, breach of the Computer Fraud and Abuse Act and the Defend Trade Secrets Act, and unfair competition. AFS is a business and career coaching and event management company for whom Fritz was a vice president with access to AFS’ customers and confidential information. Fritz signed non-compete, non-solicitation, non-disclosure and assignment agreements with AFS. AFS’ allegations are that a forensic analysis of Fritz’s work computer revealed that he accessed thousands of confidential records and attached external storage devices such as thumb drives and external hard drives to the computer in the days immediately before his last day of work. AFS seeks the return of its confidential and proprietary information, forensic access to Fritz’s personal computers and other devices, temporary, preliminary and permanent injunctions preventing further use or dissemination of AFS’ confidential and proprietary information and preventing Fritz from working for any employer who performs services for AFS customers with whom he worked or had access to confidential information, and compensatory and punitive dames and attorneys’ fees.
Matthew Chatham sued building company Canterbury Ventures, its owner Daniel Lewis, and real estate agent Patricia Bergevine for infringing his copyright in a house design. Mr. Chatham developed a set of custom plans for the design of a house, and has since registered his “architectural work” with the U.S. Copyright Office. He gave Canterbury permission to use the custom plans for the sole purpose of building the house for him on a lot that Canterbury was to purchase. Canterbury did not complete the house by the contracted closing date, and seven months later still had not completed the house. Mr. Chatham and his wife had earlier sued for breach of contract in state court. He filed this copyright case after learning that Canterbury was showing the partially-constructed house through defendant Bergevine, a real estate agent. The Chathams also obtained a lis pendens order, which in Massachusetts is recorded at the registry of deeds and puts prospective buyers on notice of the lawsuit, effectively clouding title on the real estate. Chatham seeks an order preventing sale of the house, that the house be placed in a constructive trust, and monetary damages and attorneys’ fees. (Full disclosure – Mr. Chatham is represented by Nathan Harris and John Anastasi of my firm, Lando & Anastasi LLP).
Capsule Collective filed suit against Tilt Lacrosse, alleging willful infringement of the “TILT” trademark and various stylized “TILT” marks and seeking cancellation of defendant’s Registration No. 4,818,851 for the “TILT” mark on t-shirts, hats, and other clothing. Capsule Collective claims to have first used the mark in commerce on clothing, hats, push scooters, and scooter accessories before Tilt Lacrosse’s first use in commerce. Additionally, Capsule Collective claims trademark and trade dress infringement, false designation of origin, passing off, violation of the Lanham Act and violation of M.G.L. 93A. It further seeks cancellation of Defendant’s “TILT” registration.
Judge Talwani granted Mayo’s motion to dismiss Athena Diagnostics’ complaint, finding the claims of U.S. Patent No. 7,267,820 encompassed unpatentable subject matter. The patent is directed to diagnosing Myasthenia Gravis, an autoimmune disorder by detecting IgG autoantibodies. The inventors had discovered that some sufferers of the disease had IgG antibodies that attack a receptor, known as MuSK, on muscles, resulting in muscular weakness, and developed a diagnosis method whereby a radio-labelled version of the receptor, known as 125I-Musk, is introduced to a sample of bodily fluid to attach to MuSK antibodies. The fluid is immunoprecipitated, and the presence of the radioactive label indicates the person has the disease. In the face of Mayo’s Alice motion, Athena argued that the claims were not directed to a law of nature, but instead utilize the man-made 125I-Musk to form a complex with MuSK antibodies that do not occur in nature. Judge Talwani agreed that the complex was not naturally-occurring, but found that this did not transform the subject matter to a patent eligible concept – the patent was not directed to the 125I-Musk-antibody complex, but to the interaction of the 125I-Musk and antiobodies present in fluid, which is a naturally-occurring interaction. She analogized the facts with those of Mayo, in which while it “took human action (the administration of a thiopurine drug) to trigger the desired reaction, the reaction itself happened apart from any human action.” Judge Talwani determined that in Mayo, a man-made substance was administered to a person and the by-product of the metabolization of that substance was observed, just as here.
Having determined that the patent was directed to a law of nature, Judge Talwani next determined that the claims did not include an inventive concept beyond the law of nature that would nevertheless make them patent-eligible, relying on statements in the patent specification that “iodination and immunoprecipitation are standard techniques in the art.” Athena argued that, while the iodination (radio-labelling) and immunoprecipitation processes were known at the time of invention, they were not well understood or routine when applied to complex molecules like proteins. The Court, citing the written description requirements of 35 US.C. 112, found that the specification lacked any such statements, and that Athena’s argument was contradicted by the specification.
In analyzing both the first and second steps of the Alice test, Judge Talwani relied on language in the specification that the purpose of the patent was for diagnosing neurotransmission or developmental disorders related to MuSK, finding that, on its face, the patent claims a process for detecting antibodies, not for creating the 125I-Musk. Because the antibodies occur naturally, it did not matter that 125I-Musk is not itself naturally occurring.
A jury verdict was reach in the case of Koninklijke Philips Electronics N.V. v. Zoll Medical Corp. The jury awarded Philips $8,900,000 as a reasonable royalty for infringement of the ‘374 patent and $1,500,000 for infringement of the ‘454 and ‘905 patents, but also awarded Zoll $3,300,000 for Philips’ infringement of Zoll’s ‘526 and ‘187 patents. Neither side was found to willfully infringe.
The Life Is Good Company filed another suit against a company allowing users to design and sell t-shirts and the like, this time going after the company behind www.teespring.com. The allegations are virtually identical to the complaint mentioned yesterday against Viral Style.
The Life Is Good Company sued Florida-based Viral Style LLC for trademark infringement, unfair competition, counterfeiting, and passing off. Viral Style operates www.viralstyle.com, which allowing users to design and sell their own t-shirts, hats, mugs and the like. Life Is Good alleges that Viral Style’s users have infringed it incontestable registration to “LIFE IS GOOD” and that Viral Style itself has infringed the mark by making the shirts designed by its users. Life Is Good further contests that Viral Style’s “Intellectual Property Complaint Policy” does not meet the safe harbor requirements of the Digital Millenium Copyright Act (“DCMA”) because it provides no method for screening a design to ensure it does not infringe another’s intellectual property rights and does not bar repeat offenders from the site, and in any event that the DCMA safe harbor provisions apply only to copyright, and not to trademark claims.
Framingham, Massachusetts’ Boston Heart Diagnostics Corp. filed separate patent infringement lawsuits, one against GeneAlign, LLC (17-cv-11412) and the other against Genelex Corp. (17-cv-11416). Both suits allege infringement of U.S. Patent No. 8,455,194, titled “Diagnostic Methods” and directed to methods for detecting the susceptibility of an individual to statin-induced myopathy, and the plaintiff alleges itself to be the exclusive licensee with the “first right” to sue for infringement. Plaintiff alleges direct and induced infringement.
Judge Hillman denied Marshall’s motion for attorneys’ fees. The lawsuit involved a dispute over whether the plaintiff should have been named as a co-author of a PLoS Biology paper, which would have given him the right to retract its publication. Marshall prevailed and moved for fees under 17 U.S.C. § 505, which allows for the discretionary award of costs and fees to a prevailing party in a copyright suit. Using his discretion, Judge Hillman determined that Mallon’s position was not objectively unreasonable and was not brought in bad faith, and that Mallon was unlikely to file more such suits, eliminating the need to impose fees for the purpose of deterrence.
A complaint was filed by David Oppenheimer and his company, Performance Impressions, LLC, against CIEE, Inc., alleging misuse of an aerial photograph of the Isle of Palms in South Carolina taken by Mr. Oppenheimer. CIEE (Council on International Education Exchange) is an organization that runs study abroad programs. CIEE is accused of using one of Mr. Oppenheimer’s photographs on its website without authorization.