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Georgia IP Litigation: February 2014

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Tuesday, February 25, 2014, 3:12 PM

Monsanto Files Complaint to Prevent Farmer from Harvesting Patented Seeds for Resale and Planting

On February 5, 2014, Monsanto Company and Monsanto Technology, LLC (“Monsanto”) filed a complaint in the Middle District of Georgia asserting willful patent infringement against a farmer (Christopher Ponder and Chris Ponder Farms, LLC – “Ponder”) for using and planting infringing cotton seed derived from patented cotton seed without authorization from Monsanto.

Monsanto’s complaint relates the company’s investment of hundreds of millions of dollars for more than a decade to develop patented technology for seeds that tolerate the herbicide glyphosate (effective, but environmentally friendly) and to resist leaf and boll-feeding worm species.  The technology has been widely adopted by farmers resulting in decreased production costs and reduced management time.  To monetize its technology, Monsanto uses a license agreement that allows licensees to grow a single commercial crop but not to preserve or later use the seeds produced from that crop.

Monsanto asserts its technologically developed seeds result in cotton that resists the following cotton attacking worms:
The complaint asserts that Ponder never purchased Monsanto seed or agreed to license the Monsanto technology.  Nevertheless, he allegedly collected patented cotton seed without authorization from Monsanto.  Monsanto alleges that Ponder delinted seed for other farmers and traded the delinted seed for chemicals used in the delinting process.  After an 11-month investigation in Tift County, Georgia, spanning 2012 into 2013, Monsanto arranged for meetings with all the farmers implicated by the investigation, except for Ponder who refused to meet or negotiate.

The complaint asserts infringement of U.S. Patent No.6,949,696 (the ‘696 patent) and U.S. Patent No. 7,064,249 (the ‘249 patent).

Monsanto notes in its complaint that “The saving and replanting of patented cotton seed is an involved process requiring active, not accidental, participation and direction by the farmer."  Monsanto explains that the cotton plant produces a cotton boll containing cotton seed that farmers typically take to a cotton gin for processing in modules.  The cotton gin separates the cotton seed from the boll and often keeps the seed as payment for ginning the cotton. While the cotton lint from the boll is the primary product and is used to create fabric, the cotton seed is a secondary product and can be used to produce cotton seed oil.

In order to recover cotton seed for replanting, the farmer must direct the gin operator to capture specific seed from the harvest by identifying the modules from which the seed is desired.  The recovered seed still contains a small amount of lint resulting in the nomenclature “fuzzy seed.”  Before this seed can be used for planting in modern planting equipment, the seed must be delinted.  Monsanto’s complaint alleges that Ponder collected, delinted, and then resold patented seeds for a significantly lower price.  In addition, Monsanto accuses Ponder of delinting the seeds brought to him by other farmers.

For the patent claims, Monsanto seeks an injunction, interest and costs, and damages (for which Monsanto asks trebling).  Monsanto also seeks to recover for conversion and unjust enrichment.

The case is Monsanto Company and Monsanto Technology, LLC v. Christopher Ponder and Chris Ponder Farms, LLC, No. 1:14-cv-00013-HL, in the Middle District of Georgia, Valdosta Division, assigned to U.S. District Judge Hugh Lawson.
[1] Image from www.utcrops.com.
[2] Image from Entomology 402 File Crop Insects at https://insects.tamu.edu/students/undergrad/emto402/Cotton_files/Cotton_pests_key_bollworm.html.
[3] Image from Managing Insects on Cotton, Jack S. Bacheler, Entomology Extension Specialist, https://ipm.ncsu.edu/cotton/insectcorner/photos/images/Beet_armyworm_larvae_feeding.jpg.

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Monday, February 24, 2014, 11:56 AM

Ganz USA and Noelle LLC file copyright complaint against Transpac, Inc.

On January 10, 2014 Ganz USA LLC (“Ganz”) of Marietta, Georgia and Noelle LLC (“Noelle”) of Cannon Falls, Minnesota (collectively, "plaintiffs") filed a complaint against Transpac Imports, Inc. (“Transpac”) of Vacaville, California, alleging copyright infringement and Federal trade dress infringement, unfair competition and false advertising under 15 U.S.C. § 1125(a).
The complaint revolves around the popular “Kissing Krystal” product line which Ganz licenses from Noelle.  The Kissing Krystal products are decorative ornaments that include faux mistletoe, glitter and other floral patterns and decorations on multifaceted clear acrylic shapes to create a pleasing aesthetic, and they are sold throughout thousands of gift retailers including Kirkland’s, Macy’s, and Bed, Bath & Beyond.  According to the complaint, approximately 1.5 million units have been sold since 2009, with an MSRP nearing $20 million. The complaint cites the following 8 registered “Kissing Krystal” copyrights as having been allegedly infringed.
1. Blessing of the Harvest, Reg. No. VA0001743072
2. Christmas Kissing Krystal Angel, Reg. No. VA0001743066
3. Diamond Kissing Krystal, Reg. No. VAu001117953
4. Frosted Sugarplum Winterwonderland, Reg. No. VAu001117956
5. Kissing Krystal, Reg. No. VA0001739705
6. Kissing Krystal Maple Leaf, Reg. No. VA0001841655
7. Kissing Krystalball, Reg. No. VAu001117954
8. Mini Kissing Krystal, Reg. No. VA0001743070
Sometime before January 2009, Transpac and Noelle entered into a licensing agreement allowing Transpac to produce, manufacture, sell, and distribute Kissing Krystal ornaments in accordance with Noelle’s standards.  Transpac also retained sell-off rights for inventory purchased prior to the termination date of the agreement.  According to the complaint Transpac actively showed and sold the “Kissing Krystal Collection” pursuant to the licensing agreement from January 2009 until termination of the agreement on December 28, 2013.
            The complaint goes on to allege that Transpac is now showing and selling its own line of allegedly infringing Kissing Krystal ornaments consisting of suspended sculptures and/or 3-D artwork made of glittered, faux mistletoe and other floral patterns that adorn various multifaceted clear acrylic shapes.  The plaintiffs allege Transpac is now substituting inferior quality knockoffs, is passing them off as a continuation of the Kissing Krystal product line and confusing customers about which product they are purchasing, and is taking orders for their alleged knockoffs without having sold the remainder of the licensed product which they received from Ganz.

           Accordingly, the plaintiffs seek a preliminary injunction restraining any further infringement of the “Kissing Krystal” collection and/or trade dress, a finding of infringement of the collection and the trade dress, and unfair competition and false designation of origin, along with trebled damages for allegedly willful infringement.
The case is Ganz U.S.A. Llc. et al v. Transpac Imports, Inc. Docket no: 1:14-cv-00081-SCJ, filed January 10, 2014 in the United States District Court for the Northern District of Georgia, Atlanta Division, and is assigned to Judge Steve C. Jones.

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Friday, February 21, 2014, 5:48 PM

Dispensing Justice on Dispensing Beverage Patents and Products

After initiating an action in the Southern District of Illinois against The Coca-Cola Company (“Coca-Cola”) for patent infringement of seven patents, Beverage Dispensing Solutions, LLC (“BDS”) stipulated to transfer of the case to the Northern District of Georgia on January 22, 2014, based on the convenience of the parties and witnesses.

 The BDS complaint alleges that the Coke Freestyle beverage dispensing machines infringe seven patents invented by Henry Lee Crisp, III.  In seven separate counts, BDS alleges that the Coke Freestyle product directly infringes each product and either indirectly infringes, contributes to indirect infringement, or induces indirect infringement of each of the following seven patents:

 Selected figures from the patents appear below:
While alleging infringement, the BDS complaint does not elaborate on the specifics of the infringement or point out particular infringing attributes of the accused Coca-Cola dispensers.
The case is Beverage Dispensing Solutions, LLC v. The Coca-Cola Company, No. 1:14-cv-00220-TCB, transferred from the Southern District of Illinois to the U.S. District Court for the Northern District of Georgia, Atlanta Division, assigned to U.S. District Judge Timothy C. Batten, Sr.

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Wednesday, February 19, 2014, 4:08 PM

Jury Left To Decide If Camouflage Patterns Have Specific Protectable Elements

Judge Land denied the summary judgment motion of Digital Concealment Systems, LLC (“Digital”), filed that its “A-TACS FG Camo” pattern does not infringe copyrights belonging to HyperStealth Biotechnology Corp. (“HyperStealth”).[1] In reaching the ruling, the Court did not consider the opinions of HyperStealth’s expert.  Therefore, Digital’s motion to exclude that evidence was moot.

The nine HyperStealth copyrighted patterns in issue were designed by Guy Cramer (“Cramer”), a founder of the company.  Sample of HyperStealth patterns in different colors (obtained on the Internet) are set forth below:

An example of the A-TACS FG Camo pattern (obtained from the Internet) is pictured below:
As to each alleged infringement, the Court set forth the descriptions advanced by Cramer as to the similarities between the HyperStealth pattern and Digital’s A-TACS FG Camo pattern.  In each instance the Cramer description was followed by a description offered by Digital of the differences between its pattern and the copyrighted pattern of HyperStealth.

Judge Land noted “Absent direct proof of copying, HyperStealth may prove copying by demonstrating that (1) Digital had access to HyperStealth’s patterns and (2) Digital’s pattern is substantially similar to HyperStealth’s patterns,” citing Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1223 (11th Cir. 2008).  The Court went on to point out that the “substantial similarity issues often involves subjective determinations” and, therefore, summary judgment is precluded “unless (1) ‘the similarity between two works concerns only non-copyrightable elements’ or (2) ‘no reasonable jury, properly instructed, could find that the two works are substantially similar.’”[2]  Judge Land did note that “copyright protection does not extend to ideas but only to particular expressions of ideas.”  Oravec, 527 F.3d at 1224 (citing 17 U.S.C. § 102(b)).

Digital raised for the first time in its reply brief the issue of independent creation.  However, the Court waived off this issue based on the fact Digital’s IP address had been a top 30 visitor to HyperStealth’s website in the three months before Digital’s A-TACS FG Camo pattern was created.  During this period 61 megabytes of information was downloaded to Digital’s IP address over the course of 124 visits.
While the Court reported its thorough review of the Digital A-TACS FG Camo pattern side by side with each HyperStealth pattern and “separated out the unprotected elements from the protected ones,” no information was provided as to which elements the Court considered unprotected and which elements it considered protected.  The idea of camouflage is for the object not to been seen in the environment.  The challenge in this case is to identify whether specific protectable elements of nine different camouflage designs can be found in one accused infringing design.

At this point, it appears that it may be left to a jury, properly instructed, to determine how much of a camouflage pattern is concept ideas and how much is protectable elements.  Maybe the Court will provide more guidance in its instructions after reviewing the evidence over the course of the trial.

Neither the Court nor the parties had the benefit of the decision by the 11th Circuit on December 16, 2013, of Progressive Lighting, Inc. v. Lowe's Home Centers, Inc., 2013 WL 6570072, *6, in which the Court of Appeals discussed the problems with copyrighting useful articles.  Specifically, the Court of Appeals discussed two ways a utilitarian product might contain copyrightable work.  First,  "[p]hysical separability exists when, 'after removal of those features which are necessary for the utilitarian function of the article, the artistic features ... nevertheless remain intact,'" quoting Norris Indus., Inc. v. Int'l Tel. a& Tel. Corp., 696 F.2d 918, 923 (11th Cir. 1983).  An interesting questions may be posed as to what part of a camouflage design is merely artistic.  Second, 'conceptual separability refers to "'ornamental, superfluous designs contained within useful objects."  Id.  Whether a camouflage design be superfluous is a further point to consider.  Perhaps these points will be addressed at trial.
The case is Digital Concealment Systems, LLC v. HyperStealth Biotechnology Corp., November 19, 2013, in 4:11-cv-195-CDL, in the United States District Court for the Middle District of Georgia, Columbus Division, assigned to Judge Clay D. Land.

[1] The Court noted that HyperStealth abandoned one claim before the ruling and that claim is, therefore, not addressed.
[2] Peter Letterese & Assocs., Inc. v. World Inst. of Scientology Enters., 533 F.3d 1287, 1302 (11th Cir. 2008).

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Friday, February 14, 2014, 3:23 PM

Family of Jack Gibson, founder of the National Association of Radio Announcers for Black Radio DJs, enforces famous mark “Jack the Rapper” against party profiting from unauthorized use of the mark

Judge Thrash issued a ruling granting in part and denying in part the motion for summary judgment of plaintiffs (Jill Gibson Bell, et. al., hereinafter “Gibson Family”) against Billy Darren Foster (“Foster”) for trade mark infringement, trademark dilution, violation of rights of publicity and related claims.

Jack Gibson built a following as a DJ on WERD Radio in Atlanta under the name “Jack the Rapper.”  He became the first National Director of Promotions and Public Relations for Motown Records, opened and operated the first Black radio station in the United States, and founded in 1977 and hosted until his death in 2000 an annual event for radio and music artists known as “Jack the Rapper’s Family Affairs Convention.”
Foster contacted the Gibson Family in 2012 regarding a tribute to Jack Gibson.  Once the Gibson Family learned that the events title would include their trademark “Jack the Rapper,” permission was refused.  Despite objection, Foster held “The New Jack the Rapper Convention” in Atlanta from December 6, 2012 through December 8, 2012.  Foster filed a trademark application for that name and advertised his next convention by the same name for Houston, Texas, in February 2013.  Shortly before that convention, the Gibson Family filed for a temporary restraining order, which was settled for specified compensation and the withdrawal of the trademark application.
Foster failed to make all the payments required by the settlement, failed to withdraw the trademark registration application, and proceeded with another unauthorized use of the trademark for a convention in New York in April 2013.

The Gibson Family filed suit, served requests for admissions (to which no response was made), and then filed a motion for summary judgment.  Foster failed to respond to the motion for summary judgment.   Judge Thrash noted that “The Court ‘cannot base the entry of summary judgment on the mere fact that the motion was unopposed, but, rather, must consider the merits of the motion,” quoting United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1109 (11th Cir. 2004).

The Court observed that the same standard governed trademark infringement and unfair competition under Georgia law as under the Lanham Act, Section 1125(a).  Judge Thrash found that of the four categories of trademark distinctiveness (generic, descriptive, suggestive, and arbitrary or fanciful), the “Jack the Rapper” mark was at least suggestive.  He further reviewed the seven factors used to evaluate infringement:  (1) strength of mark; (2) similarity of marks; (3) similarity of goods and services; (4) similarities between sales methods; (5) similarity of advertising methods; (6) intent; and (7) actual confusion.  Welding Services, Inc. v. Forman, 509 F.3d 1351, 1361 (11th Cir. 2007).  The Court found all factors favored the Gibson Family except actual confusion which was not evidenced.
The Court had more trouble with the damage claims, which were extrapolated the Houston convention or consisted of unsupported opinion.  Although the attorney fees requested were granted, Judge Thrash pointed out the request for punitive damages was without statutory support. 

The Count found that the injunctive relief requested by the Gibson Family was too broad, but he crafted a less-broad easy to understand prohibition into the order.

On the issue of dilution, the Court found the mark to be a distinctive famous mark even though it was not registered, that Foster began use of the mark after it became famous, and Foster’s use was likely to case “dilution by blurring” or “dilution by tarnishment.”

Finally, the Court found as a matter of law that Foster had violated the Gibson Family’s right of publicity under Georgia law, citing Martin Luther King, Jr. Ctr. For Soc. Change v. American Heritage Products, Inc., 250 Ga. 135, 143 (1982) (misappropriation of name and likeness without consent for financial gain); Id. at 145 (right of publicity is inheritable).
The case is Jill Gibson Bell v. Billy Darren Foster, Docket no. 42, decided December 2, 2013, in 1:13-cv-00405-TWT, in the United States District Court for the Northern District of Georgia, Atlanta Division, assigned to Judge Thomas W. Thrash.

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Monday, February 10, 2014, 1:31 PM

Bruder Healthcare files Patent Infringement Complaint against Walgreens and BigWall

On December 13, 2013, Bruder Healthcare Company (“Bruder”) of Alpharetta, Georgia filed a complaint against Walgreen Company (“Walgreens”), an Illinois corporation with offices located in Deerfield, Illinois, and BigWall Enterprises Incorporated (“BigWall”), a Texas corporation with offices located in Dallas, Texas.  The complaint was filed in the United States District Court for the Northern District of Georgia, Atlanta Division, alleging contributory, induced, and direct patent infringement of United States Patent No. 8,420,882 for a “WOUND AND THERAPY COMPRESS AND DRESSING” (the ‘882 patent).
Thermalon Brand Moist Heat Back Wrap
According to the complaint, BigWall sell products under the name “BigWall” as well as under “private label” house brands such as “Walgreens.”  The complaint alleges infringement of the ‘882 patent by at least two products that BigWall is or has been allegedly selling to Walgreens, and that Walgreens is or has been allegedly selling to customers in retail stores.  The allegedly infringing products include Walgreens Item Number 276655 and 276656 “Moist Heat Back Wrap” and “Moist Heat Neck Wrap” products.

Walgreens' Moist Heat Back Wrap
In short, the ‘882 patent discloses an improvement to moist-heat therapy wound dressings and compresses.  The invention uses antimicrobial silver to provide a germ and microbial free wound environment that is moist and warm or heated.  Heat and moisture both aide healing but create a potential for microbial colonization of a wound.  Excessive use of antibiotics can cause allergic reaction and treatment-resistant bacteria.  The invention disclosed in the '882 patent is thus aimed at addressing the need for a moist, warm or heated dressing or compress that maintains its sterility without excessive use of antibiotics.

Fig. 1 of the '882 patent
The complaint alleges Walgreens for a time purchased “Thermalon” brand wound and therapy compresses and dressings from Bruder and sold these products in their retail stores.  Bruder alleges that these products are covered by the ‘882 patent, and that Walgreens willingly infringed the ‘882 patent by choosing to source the similar Moist Heat Wrap products from BigWall.  Accordingly, Bruder is seeking treble damages for the allegedly willful infringement along with an order enjoining future sales of infringing products.

The case is Bruder Healthcare Co. v. BigWall Enterprises, Inc. et al. No. 1:13-cv-04138-SCJ in the United States District Court for the Northern District of Georgia, Atlanta Division, and is assigned to Judge Steve C. Jones.

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Friday, February 7, 2014, 11:44 AM

Court Does Not Require Internal Communications Of Outside Counsel To Be Listed On Privilege Log

Magistrate Judge Alan Baverman issued an order denying a counterclaimant's motion to compel a more complete privilege log, and granting-in-part a motion seeking access to four deposition transcripts filed under seal in a related case. In a patent infringement suit between patentee Catch Curve, Inc. and j2 Global Communications, Inc. (collectively, "j2") and Integrated Global Concepts, Inc. ("IGC"), IGC asserted a counterclaim of "sham litigation" (previously reported here), alleging that j2 knew that IGC's accused MaxEmail product did not and could not infringe the asserted patents.

In an earlier ruling, District Judge Totenberg ruled that at the present time IGC could only seek discovery on the objective prong of the "sham litigation" test set forth in Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60 & n.5 (1993), which held that a lawsuit must be "objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits."  Judge Totenberg restricted that discovery to whether j2 personnel had actual knowledge that the MaxEmail system could not possibly infringe the patents, as well as to the factual and legal bases for j2's infringement contentions.

j2 submitted a privilege log during discovery listing privileged communications between j2 personnel and its general counsel, and between j2's general counsel and j2's outside counsel, Sullivan and Cromwell.  IGC claimed that j2 should also be required to log internal communications between Sullivan and Cromwell attorneys because j2 was relying on its experienced patent counsel for the factual and legal bases of its infringement contentions.  Magistrate Judge Baverman pointed out that whatever Sullivan and Cromwell attorneys discussed or believed internally did not have any bearing on j2 personnel's actual knowledge or on the objective prong of the "sham litigation" test.  Further, the Court held that a litigation counsel privilege log was not reasonably calculated to lead to the discovery of admissible evidence, and that while they may be relevant to the subjective intent either j2 or its counsel possessed at the time of filing, establishment of the objective prong was a prerequisite to reaching discovery on the subjective prong.

The Court did partially grant IGC's motion for access to deposition transcripts filed under seal in a related j2 patent case.  The Court held that two of the four requested transcripts discussed the patents and technology at issue and thus could be viewed by IGC subject to the protective order.

Catch Curve, Inc. v. Integrated Global Concepts, Inc., 1:06-cv-2199-AT, Dkt. No. 224 (January 17, 2014).

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Thursday, February 6, 2014, 1:19 PM

Photographer Alleges Copyright Infringer Used Unauthorized Photo For Road Atlas And, When Caught, Offered $10 As Compensation

On February 11, 2011, Atlanta real estate and architectural photographer, Iran Watson (“Watson”), created a photograph of the Atlanta skyline that he entitled “Atlanta Westin Towers Twilight.”  As alleged and shown in his complaint, Watson took the precaution of adding a digital watermark to the photo containing his name and providing notice of his copyright.  The image of the photo, included in the complaint, is presented below.
According to the complaint, Watson posted the photo soon thereafter with the embedded digital information on his Flickr® photostream noting that it was protected by copyright and all rights were reserved.  Thereafter, Watson registered the work with the US Copyright Office on February 13, 2013, and registration number VA 1-859-387 was assigned to the work.

Four months later, in June 2013, Watson observed an Atlanta road map publication by Kappa Map Group, LLC (“Kappa”), bearing his photo on the cover.  Kappa noted the the embedded information regarding copyright ownership was not included on the image.  That image is reprinted in part below:

Watson alleges that he had not given Kappa permission to use his image and when he contracted them regarding their unauthorized use, they offered to pay him $10 for the use of the photo.  Thereafter, Watson secured counsel and brought his complaint for copyright infringement pursuant to 17 U.S.C. § 501 and removal of copyright management information pursuant to 17 U.S.C. § 1202(b).  For relief, Watson seeks an injunction, a product recall, impounding, actual and statutory damages, attorney fees, and other relief.

The case is Iran Watson v. Kappa Map Group LLC, No. 1:14-cv-00100-WBH, filed 01/13/14 in the U.S. District Court for the Northern District of Georgia, Atlanta Division, and has been assigned to U.S. District Judge Willis B. Hunt, Jr.

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Wednesday, February 5, 2014, 4:00 PM

It’s My Jungle in Here – Owner of Mark ZOO MANIA® Seeks to Exclude Interloper in Games Field

Mark Rice d/b/a Zoomania Games (“Rice”) asserts a complaint against Atico International USA Inc.; Atico International, Inc.; and Caremark PHC, L.L.C. aka CVS Caremark (“Atico”), asserting Lanham Act Trademark Infringement claims under 15 U.S.C. 1114(1) and 15 U.S.C. 1125(a), unfair competition under Georgia law, and seeking an accounting for profits.

Rice filed an application for the mark “ZOO MANIA®” on September 26, 1996, and was granted Registration No. 2,113,925 on November 18, 1997.  The complaint alleges that Zoo Mania products have been sold for more than 15 years at major retailers including FAO Schwartz, Barnes & Noble, CVS, Amazon, and others.  Images of Zoo Mania products and references are attached as exhibits to the complaint.  Samples drawn from those exhibits are presented below:
Rice further alleges expenditure of substantial sums, time, and effort to promote its brand, building up goodwill and brand awareness.  Rice attaches an image of an Atico product alleged to infringe the Rice mark.  That image is presented below:

The complaint sets forth a total of five counts and seeks injunctive relief, attorney fees, costs, interest, treble damages, and other relief the Court deems just and proper.

The case is Mark Rice d/b/a Zoomania Games v. Atico International USA Inc.; Atico International Inc.; and Caremark PHC, L.L.C. aka CVS Caremark, No. 1:14-cv-00067-JEC, filed 01/10/14 in the U.S. District Court for the Northern District of Georgia, Atlanta Division, and has been assigned to U.S. District Chief Judge Julie E. Carnes.

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Tuesday, February 4, 2014, 4:39 PM

Leveling the Culinary Field: Typographical Corrections in Markman Ruling Allow Food Service Equipment Leveling Device Patent to be Construed

Judge Batten examined the parties’ contentions in light of controlling federal law and construed patent claims as plaintiff Kason Industries, Inc. (“Kason”) contended, rejecting reliance by defendant Component Hardware Group, Inc. (“Component”) on indefiniteness and rejecting its efforts to restrict the term “projection” to mean only a “rib.”

By Order dated January 31, 2014 [Dkt#57] (the “Order”), the Court briefly recited the background of United States Patent No. 7,571,887 (the ‘887 Patent) and quoted the three claims in issue (1, 4, and 7).  A figure from the patent, which is directed to a height adjustable support for food service equipment, is reprinted below:

Judge Batten’s Order provides an excellent tutorial on the standard for claim construction and then moves through a well-written synopsis of the current state of the law when an indefiniteness argument is raised.  “A claim is indefinite only when it is ‘not amenable to construction’ or ‘insolubly ambiguous,” quoting Biosig Instruments, Inc. v. Nautilus, Inc., 715 F.3d 891, 898 (Fed. Cir. 2013), cert. granted, 82 U.S.L.W. 3195 (2014).  The Nautilus Petition for Writ of Certiorari, recently granted, seeks elimination of this standard.  (See fellow Womble Carlyle blogger Chris Hall's take on this issue at the The High-Tech Patent Agent Blog.)  The Order notes that “It is well-settled law that, in a patent infringement suit, a district court may correct an obvious error in a patent claim,” quoting CBT Flint Partners, LLC v. Return Path, Inc., 654 F.3d 1353, 1358 (Fed. Cir. 2011).  

Judge Batten noted the errors in the claims language, but held that those errors were easily corrected without broadening the claim.  The first error was clearly a scrivener’s error of substituting “that” for “than” and the second error merely required a word change to achieve the antecedent phrase reference obviously intended.  “No skilled artisan would have difficulty concluding that the ‘said insert first select external diameter’ refers to the ‘said insert having an insert first portion with a first select external diameter.’”  Reaching this decision was, in the Court’s opinion, consistent with the mandate that “Claims should be . . . construed, if possible, to sustain their validity,” quoting Rhine v. Casio, Inc., 183 F.3d 1342, 1345 (Fed. Cir. 1999).

With regard to the other term Component sought to have construed, the Court also agreed with Kason.  In this instance no construction was found necessary.  Nevertheless, the Court took pains to point out that short-shrift had not been given to its obligation to construe disputed claims.  Rejection of an unnecessary proposed construction fulfills the Court’s duty and resolves the dispute.  See Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197, 1207 (Fed. Cir. 2010).
Accordingly, the Court construed the disputed terms of the '887 patent as follows:
The case is Kason Industries, Inc. v. Component Hardware Group, Inc., Docket no. 57, decided January 31, 2014, in 3:13-cv-00012-TCB, in the United States District Court for the Northern District of Georgia, Atlanta Division, assigned to Judge Timothy C. Batten, Sr.

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Monday, February 3, 2014, 12:59 PM

Judge Batten Grants Summary Judgment of Noninfringement to Indiana Mills & Manufacturing

On December 2, 2013, Judge Timothy C. Batten signed an order granting summary judgment to Indiana Mills & Manufacturing, Inc. (“IMM”) of Cincinnati, Ohio and denying relief to Pediatric Medical Devices, Inc. (“PMD”) of Atlanta, Georgia.  This order comes after an August 8, 2011 complaint filed by PMD alleging patent infringement against IMM.
At issue in the complaint is U.S. Patent No. 7,281,285 owned by PMD for a pediatric emergency transport device. One claimed improvement of the invention was eschewing the use of straps or belts as a means for securing a pediatric transportation device to a conventional stretcher.  In the complaint, PMD alleged that IMMI’s “SafeGuard” Transport infringed all four claims of the ′285 patent. On the other hand, IMMI denied infringement and counterclaimed for a declaratory judgment of noninfringement and invalidity.

Fig. 1 of the U.S. patent no. 7,281,285

The focus in the case was on the attachment limitation of claim 1 which reads: “said pediatric emergency transport device being operatively adapted for attachment to and detachment from a conventional stretcher.” The court defined the scope of this limitation after the February 13, 2013 Markman hearing, granting a claim-construction order giving the claim the following reading: “said pediatric emergency transport device designed and configured to attach to and detach from a conventional stretcher without the use of straps or belts.” The construction was then affirmed after PMD moved for reconsideration.
Given the construction above, IMMI moved for summary judgment on May 28, 2013 arguing that the accused device does not infringe the ′285 patent because it attaches to a conventional stretcher with the use of straps (joined together with a hook and bracket mechanism). 
PMD's primary arguments were that the accused product infringes because it “uses a hook and bracket mechanism that merely incorporates a strap component to attach to and detach from a convention stretcher.”  And that that the hook and bracket structure that incorporates a strap element is not a strap because it is “part of the [accused] device’s design” or “its operation,” and it is “‘operatively adapted’ for attachment to and detachment from a conventional stretcher” because it is “particularly sized and positioned for engagement with the rails of a conventional stretcher” and “designed and configured to engage with stretchers of various sizes as part of [their] operation.” IMMI’s device, PMD concludes, literally reads on the attachment limitation.
However, the court was not convinced by that argument, instead stating the following in the December 2, 2013 order granting summary judgment: “[i]n light of the claim-construction order, the accused product infringes the ′285 patent only if it is designed and configured to attach to and detach from a conventional stretcher without the use of straps or belts… how the straps are secured in order to fasten the accused device to the stretcher is irrelevant… Thus, PMD’s attempt to shoehorn the accused product’s straps within the attachment limitation fails because it rests on a meaning of straps that is different from that which a person of ordinary skill in the art at the time of the invention would assign to it.”  In particular, they find summary judgement appropriate because “‘no reasonable jury could find every limitation recited in the properly construed claim . . . is . . . found in the accused device either literally or under the doctrine of equivalents.’” [1] 
The case is Pediatric Medical Devices, Inc. v.  Indiana Mills & Manufacturing, Inc., Docket no. 1:11-cv-02613-TCB in the United States District Court for the Northern District of Georgia, Atlanta Division, and was assigned to Judge Timothy C. Batten, Sr..
[1] Gart v. Logitech, Inc., 254 F.3d 1334, 1339 (Fed. Cir. 2001).

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