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Georgia IP Litigation: July 2014

BLOGS: Georgia IP Litigation

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Thursday, July 31, 2014, 3:06 PM

GDC Seeks to Dock Alumadock for Going Off the Deep End and Committing Patent Infringement

GDC Enterprises, Inc. (“GDC”), a corporation with a place of business in Gainesville, Georgia, filed a patent infringement action on June 3, 2014 against Robco Manufacturing, Inc, d/b/a Alumadock (“Alumadock”), a North Carolina corporation, relating to United States Patent No. 8,668,407 (the ‘407 Patent) entitled “Docking System with Joint Supports,” which issued on March 11, 2014.

The ‘407 Patent begins its section on the Background of the Invention in unconventional fashion, as follows:
Just three days before he died in a plane crash outside of Madison, Wis., Otis Redding recorded the number one hit “The Dock of the Bay” about a person that was fed up with a hectic life in Georgia and traveled to the San Francisco Bay to just sit on a dock.  There is something alluring about docks, some element that captivates our attention, draws us in, and triggers some distant emotion that is embedded deeply within.  The allure may be tied to the merging aspect of a dock that allows us to move from land to sea, to experience the water from a more intimate perspective.

Thus begins a patent that contains two independent claims to a unique and innovative combination of elements that, according to the complaint, captured the imagination and imitation of a competitor.  Below is Figure 1C from the patent.
In this instance the words may be worth a thousand pictures.

After its eloquent beginning, the patent diverges to the more lawyerly, technical claim language that seems to hold allure and fascination for a much more limited body of citizens – patent lawyers.  It was with some difficulty that the author came to accept that the following claim language was written by the same person who penned the introductory prose quoted above.
A dock construction system comprising:
a fascia component defining an interior channel having a particular cross-sectional shape and further comprising one or more integral lips along its length that extend away from the interior channel, wherein an integral lip is configured to receive and support an end of one or more cross beams;
a corner connector component including a first side and a second side joined at a desired angle, wherein at least one of the first side and the second side includes a support insert having a cross-sectional shape that corresponds to the particular cross-sectional shape of the fascia component interior channel, wherein when the support insert of the corner connector is inserted into the channel of the fascia component, the fascia component provides structural support for the corner connector; and
one or more cross beams supported by one of the one or more integral lips of the fascia component.

Upon closer reading, the intimate prose to which the patentee initially ascribed comes through with an unusual sprinkling of claim terms, such as “integral lips along its length,” “desired angle,” and a “fascia component interior channel.”  Perhaps the introductory prose inspires the reader to imagine elements that are not really there.  In any event, the author looks forward to a Markman ruling that will set the record straight as to what the terms mean and how they are appropriately applied.
Alumadock is accused of intentional infringement by selling the infringing aluminum docking products.  GDC seeks an injunction, the surrender or destruction of all infringing products, a report on compliance with the injunction, damages, trebled damages as a result of the intentional infringement, attorney’s fees, and costs.
The case is GDC Enterprises, Inc. v. Robco Manufacturing, Inc. d/b/a Alumadock, No. 1:14-cv-01708-SCJ, filed in the U.S. District Court for the Northern District of Georgia, Atlanta Division, on June 3, 2014, and assigned to U.S. District Judge Steve C. Jones.

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Wednesday, July 30, 2014, 9:53 AM

Bushwacker Accused of Serial Patent Infringement of Hood Protectors

Lund, Inc. (“Lund”), a Delaware corporation with headquarters in Buford, Georgia, initiated a patent infringement action against Bushwacker, Inc., and Bushwacker Automotive Group, LLC (“Bushwacker), Oregon entities, relating to United States Patent No. 5,755,483 (the ‘483 Patent) entitled “Vehicle Shield Device.”

Lund alleged that Bushwacker acquired molds used to make infringing products from Kalot Industries, Inc. d/b/a Stampede Products, Inc. (“Stampede”).  Although Stampede was licensed to manufacture and sell patented products, the license was not assignable without Lund’s consent, which was neither sought nor obtained by Bushwacker.  Lund asserts that Bushwacker “manufactured, used, sold, and/or offered for sale” infringing vehicle shields, including the Stampede VP (Vigilante Premium) Series Hood Protectors and Stampede LP (Low Profile) Hood Protectors.  Images of the VP and LP Hood Protectectors appear below:
Bushwacker is accused of willful infringement and induced infringement by selling the allegedly infringing hood shield products along with installation instructions.  Lund seeks an injunction, damages, trebled damages, attorney’s fees, and costs.

The case is Lund, Inc. v. Bushwacker, Inc., and Bushwacker Automotive Group, LLC, No. 1:14-cv-01720-TWT, filed in the U.S. District Court for the Northern District of Georgia, Atlanta Division, on May 22, 2014, and is assigned to U.S. District Judge Thomas W. Thrash.

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Monday, July 7, 2014, 7:14 AM

EZ Products Seeks to Scrub Scrub Buddies Over Cleaning Cloth Design Patent

On May 8, 2014, EZ Products of South Florida, LLC (“EZP”), filed a patent infringement lawsuit against Dollar Tree Stores, Inc. (“Dollar Tree”), a Virginia corporation.  EZP asserts patent infringement of United States Design Patent No. D674,566 (the ‘566 Patent) for a cleaning cloth, which was issued on January 15, 2013.   The ‘566 Patent covers the following design:

According to the complaint, Dollar Tree sells a product identified as Scrub Buddies, UPC #3937710913, pictured below.

EZ Products asserts one count of patent infringement and seeks an injunction, Dollar Tree’s profits, attorney's fees for willful infringement and under 35 U.S.C. 285, the surrender of destruction of infringing products, a report of compliance within 30 days of the injunction, and costs.

The case is EZ Products of South Florida, LLC v. Dollar Tree Stores, Inc., No. 1:14-cv-01398-TWT, filed in the U.S. District Court for the Northern District of Georgia, Atlanta Division, and is assigned to U.S. District Thomas W. Thrash, Jr.

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Wednesday, July 2, 2014, 5:37 PM

Supreme Court Issues Landmark Rulings in Two Patent Cases, Further Admonishes Federal Circuit and Lowers the Bar for Patent Challenges

This post, authored by Kirk Watkins and Christy Dupriest, was first published here on June 3 as a Womble Carlyle Case Alert.

In two decisions with immediate and potentially far-reaching consequences, the Supreme Court yesterday unanimously overturned two Federal Circuit decisions.  These decisions continue the trend of the Roberts Court, which has repeatedly overturned or vacated Federal Circuit jurisprudence.[1]  These decisions demonstrate the Court’s apparent intent to pull back on the protection offered by patents, and make it easier for alleged infringers to successfully challenge the validity of patents.  With a more exacting indefiniteness standard and a more limited induced infringement doctrine, competitors and accused infringers now have even more arrows in the quiver to challenge patent owners in litigation.
Nautilus, Inc. v. Biosig InstrumentsInc.
In Nautilus, Inc. v. Biosig Instruments, Inc., No. 13-369, the Court unanimously struck down the Federal Circuit’s long-standing rule that a claim passes the indefiniteness standard set forth in 35 U.S.C. § 112, ¶ 2 so long as the claim is “amenable to construction” and the claim, as construed, is not “insolubly ambiguous.”  The Supreme Court replaced this amorphous standard with a new “reasonable certainty” test, stating as follows:
[W]e read §112, ¶2 to require that a patent’s claims, viewed in the light of the specification and prosecution history, inform those skilled in the art about the scope of the invention with reasonable certainty.
Id., at 11 (emphasis added). 
In doing so, the Court recognized that “the definiteness requirement must take into account the inherent limitations of language,” and that a “modicum of uncertainty . . . is the ‘price of ensuring the appropriate incentives for innovation.’”  Id., at 9, citing Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 731-32 (2002).  The Court reasoned, however, that “any person skilled in the art” must be enabled to make and use the invention (Id., at 8) and that precision is necessary to apprise “the public of what is still open to them.”  Id., at 10 (citations omitted).  The Supreme Court reasoned that the newly articulated standard “mandates clarity, while recognizing that absolute precision is unattainable.”  Id., at 11.
Nautilus has an immediate effect on patent prosecution and litigation strategies.  The Court specifically stated that it was aware that patent attorneys and applicants were incentivized to inject ambiguity into patent claims and it was eliminating that temptation..
Id. at 10.  Moreover, it appears that this new indefiniteness standard will shift the burden in litigation from the accused infringer (struggling to focus the court on imprecise language and the potential harm of dual meanings) to the patentee to ensure that the court will find the boundaries of the patent reasonably certain. Courts must focus on whether the patentee has been sufficiently clear in expressing claim terms to enable any person of skill in the art to practice the invention.
The business consequences may extend much further than the future approach to prosecution and the current approach to patent litigation.  Business models designed to capitalize on broad imprecise claim language, whether by purchasing or prosecuting patents, may have devalued portfolios and upended plans.  In addition to providing enterprises and experimenters with a compass to navigate the sea, there may be a number of submarines that have suddenly lost bearings or realized their torpedoes may have been disarmed.
Limelight Networks v. Akamai Techs.
In Limelight Networks v. Akamai Techs., No. 12-786, the Court unanimously rejected the Federal Circuit’s recent expansion of the inducement doctrine for method patents and lenient standard for proof of induced infringement with a far more rigid one. 
The Patent Act provides that “[w]hoever actively induces infringement of a patent shall be liable as an infringer.”  35 U.S.C. § 271(b).  From this rule, the Federal Circuit developed a permissive standard for proof of induced infringement, stating that “[i]It is not necessary to prove that all the steps were committed by a single entity;” instead, “a party who performs some of the steps itself and induces another to perform the remaining steps that constitute infringement has precisely the same impact on the patentee as a party who induces a single person to carry out all of the steps,” and thus is an equitable expansion of patentees’ avenues for assertions of inducement liability.  Akamai Techs., Inc. v. Limelight Networks, Inc., 692 F.3d 1301, 1306, 1309 (Fed. Cir. 2012).  The Supreme Court disagreed, noting that the Federal Circuit’s own precedent makes underlying direct infringement a prerequisite to a finding of induced infringement.  Limelight Networks at 5. 
Despite reversing this decision, the Supreme Court recognized and concurred with the motivating policy concern underlying the Federal Circuit’s decision – that “a would-be infringer” could evade liability “by dividing performance of a method patent’s steps with another whom the defendant neither directs nor controls.”  Id. at 10.  However, the Supreme Court held that the cause of this concern is the Federal Circuit’s own strict “single actor” rule for determining direct infringement as set forth in Muniauction, Inc. v. Thomson Corp., 532 F.3d 1318 (Fed. Cir. 2009).[2]  Id.  The Supreme Court refused to create a rule that is “untethered to the statutory text and difficult for the lower courts to apply consistently” simply to alleviate this equitable concern.  Id.
On remand, the Federal Circuit may decide to consider a loosening of its strict single-actor rule for direct infringement to bring the principles of induced infringement more in line with the common traditions of respondeat superior liability.
The final word has not yet been spoken on how the doctrine of induced infringement will be practically applied in light of the Supreme Court’s decision in Limelight and whether a reciprocal adjustment to the “single actor” rule for direct infringement under § 271(a) to account for the equitable concerns will result from the Federal Circuit’s review of this case on remand.  In the mean time, the Supreme Court has upped the ante on parties claiming induced infringement.

[1] To date, the Roberts Court has reversed the Federal Circuit ten times, vacated its decision four times, affirmed but changed the applicable standard twice, and affirmed three times.   See Herman, Barry and Christine Dupriest, Viewpoint: Roberts Court Reins in the Federal Circuit, The Recorder, May 29, 2014.

[2] There, the Federal Circuit held that a method’s steps have not been performed as claimed by the patent unless all are attributable to the same defendant, either because the defendant actually performed the steps or because he directed or controlled others who performed them.  Muniauction, 532 F. 3d at 1329-30.

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