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March 2013
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Biosig Instruments, Inc. v. Nautilus, Inc.

Biosig Instruments, Inc. (“Biosig”) is the assignee of U.S. Patent No. 5,337,753 (“the ’753 patent”), which is directed to a heart rate monitor associated with an exercise apparatus and/or exercise procedures. Biosig brought a patent infringement action against Nautilus, Inc. (“Nautilus”) in district court alleging that Nautilus infringed claims 1 and 11 of the ’753 patent. After claim construction, Nautilus filed a motion for summary judgment seeking, in relevant portion, to have the ’753 patent held invalid for indefiniteness. The district court granted Nautilus’s motion, and Biosig appealed. Because the claims at issue are not invalid for indefiniteness, the district court’s decision is reversed and remanded for further proceedings.

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Cariou v. Prince

Appeal from a judgment of the United States District Court for the Southern District of New York (Batts, J.), on Plaintiff-Appellee Patrick Cariou’s claim that Defendant-Appellant Richard Prince’s artworks infringe on Cariou’s registered copyrights in certain photographs. We conclude that the district court applied the incorrect standard to determine whether Prince’s artworks make fair use of Cariou’s copyrighted photographs. We further conclude that all but five of Prince’s works do make fair use of Cariou’s copyrighted photographs. With regard to the remaining five Prince artworks, we remand to the district court to consider, in the first instance, 25 whether Prince is entitled to a fair use defense.

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Lazare Kaplan Int'l, Inc. v. Photoscribe Techs, Inc.

Lazare Kaplan International, Inc. (“Lazare Kaplan”) appeals from the order of the United States District Court for the Southern District of New York granting summary judgment of invalidity of claims 1 and 7 of U.S. Patent 6,476,351 (the “’351 patent”) and granting a motion under Federal Rule of Civil Procedure 60(b) filed by Photoscribe Technologies, Inc. and the Gemological Institute of America (collectively “Photoscribe”) seeking to vacate the district court’s prior judgment finding the same claims not invalid. Lazare Kaplan Int’l, Inc. v. Photoscribe Techs., Inc., No. 06 Civ. 4005 (TPG), 2012 WL 505742, at *14 (S.D.N.Y. Feb. 15, 2012) (“Lazare Kaplan IV”). Lazare Kaplan requests that, if remanded, the case be reassigned to a different judge. For the reasons set forth below, we reverse the grant of relief under Rule 60(b), vacate the finding of invalidity with instructions to reinstate the original judgment of “not invalid,” and decline the request to reassign.

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Aspex Eyewear, Inc. v. Zenni Optical, Inc.

Contour Optik, Inc., a company of Taiwan, and sublicensee Aspex Eyewear, Inc. (collectively “Aspex”) sued Zenni Optical, LLC for infringement of several United States patents for magnetic clip-on eyewear such as sunglasses. The district court held that Aspex is collaterally estopped from pursuing this suit, based on earlier litigation between Aspex and Altair Eyewear, Inc. for infringement of the same patents; decisions reported at Aspex Eyewear, Inc. v. Altair Eyewear, Inc., 386 F. Supp. 2d 526 (S.D.N.Y. 2005) (Altair I) (claim construction); Aspex Eyewear, Inc. v. Altair Eyewear, Inc., 485 F. Supp. 2d 310 (S.D.N.Y. 2007) (Altair II) (summary judgment of non-infringement); and Aspex Eyewear, Inc. v. Altair Eyewear, Inc., 288 Fed. App’x 697 (Fed. Cir. 2008) (Altair III) (affirming in part, reversing in part, and remanding).

Aspex argues that collateral estoppel does not apply. Aspex points out that certain of the patent claims in suit against Zenni Optical were not included in the Altair litigation, and that several terms now at issue had not previously been construed or were incorrectly construed. On review of the premises, we affirm the district court’s ruling of collateral estoppel, for there is no material difference as to the claims now in suit, nor difference between the Altair and Zenni Optical products to which the claims are applied.

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K-Tech Telecomm., Inc. v. Time Warner Cable, Inc.

K-Tech Telecommunications, Inc. (“K-Tech”) appeals the district court’s orders in K Tech Telecommunications, Inc. v. Time Warner Cable, Inc., CV11-09373 (May 9, 2012 C.D. Cal) and K Tech Telecommunications, Inc. v. DirecTV, CV11-09370 (May 9, 2012 C.D. Cal) dismissing KTech’s First Amended Complaints for patent infringement against Time Warner Cable, Inc. (“TWC”) and DirecTV for failure to state a claim upon which relief can be granted. Given the substantial factual overlap between the two actions, we consolidated the appeals for the purposes of oral argument and issue our ruling in a single opinion. We find that the district court applied the incorrect standard in evaluating the adequacy of K-Tech’s complaints. District courts must evaluate complaints alleging direct infringement by reference to Form 18 of the Appendix of Forms to the Federal Rules of Civil Procedure (“Form 18”). Applying that standard to the amended complaints at issue in these appeals, we reverse the judgments dismissing these actions with prejudice and remand for further proceedings.

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Biogen Idec, Inc. v. GlaxoSmithKline, LLC

Biogen Idec Inc. and Genentech, Inc. (collectively, “Biogen”) seek review of the district court’s construction of the disputed claim term “anti-CD20 antibody” that narrowed the term based on prosecution history disclaimer. Under that construction, Biogen stipulated that it could not prove infringement by GlaxoSmithKline LLC and Glaxo Group Ltd. (collectively, “GSK”). Biogen took that approach in order to appeal the district court’s claim construction. We conclude that the district court did not err in finding a clear and unmistakable disclaimer and, therefore, we affirm.

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Bayer Healthcare Pharma, Inc. v. Watson Pharma, Inc.

In these consolidated patent infringement actions, generic pharmaceutical manufacturers Watson Pharmaceuticals, Inc., Watson Laboratories, Inc., Sandoz, Inc., Lupin Ltd., and Lupin Pharmaceuticals, Inc. (collectively, the “Defendants”) appeal from the final judgments of the United States District Court for the District of Nevada in favor of Plaintiffs-Appellees Bayer Healthcare Pharmaceuticals, Inc. and Bayer Schering Pharma AG (collectively, “Bayer”). In particular, the Defendants challenge the district court’s entry of summary judgment that asserted claims 13 and 15 of Bayer’s U.S. Patent RE37,564 (the “’564 patent”) are not invalid for obviousness in view of numerous cited prior art references. Bayer Schering Pharma AG v. Watson Pharm., Inc., Nos. 2:07-cv-01472, 2:08-cv-00995, 2012 WL 1079551 (D. Nev. Mar. 30, 2012) (“Watson Summary Judgment Order”); Bayer Schering Pharma AG v. Lupin Ltd., No. 2:10-cv-01166, 2012 WL 1080296 (D. Nev. Mar. 30, 2012) (“Lupin Summary Judgment Order”). For the reasons that follow, we reverse.

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In re Morsa

Mr. Steven Morsa (“Morsa”) appeals the decision of the Board of Patent Appeals and Interferences (“Board”) affirming the rejection of claims 181, 184, 188-203, 206, 210-25, 228, 232-47, 250, 254-68, 271, and 272. Substantial evidence supports the Board’s factual determinations, and we agree with the Board’s ultimate legal conclusion that claims 181, 184, 188-203, 206, 210-25, 228, 232-47, 250, and 254-68 would have been obvious in light of the prior art. The Board performed an incorrect enablement analysis, however, when it determined that claims 271 and 272 were anticipated. Therefore, we affirm in part and vacate in part and remand.

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WNET v. Aereo, Inc.

Appeal from an order of the United States District Court for the Southern District of New York (Nathan, J.) denying Plaintiffs’ motion for a preliminary injunction barring Defendant Aereo from transmitting recorded broadcast television programs to its subscribers while the programs are airing on broadcast television. The district court correctly concluded that Aereo’s system is not materially distinguishable from the system upheld in Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008). We therefore AFFIRM the order of the district court.

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AngioDynamics, Inc. v. Biolitec AG

This is an expedited appeal from the grant of a preliminary injunction barring defendants Biolitec AG ("BAG"), Biolitec, Inc. ("BI"), Biomed Technology Holdings, Ltd., and Wolfgang Neuberger from completing a merger between the Germanbased BAG and its Austrian subsidiary, and from the denial of defendants' motion for reconsideration. BI, which is a U.S.-based BAG subsidiary, sold medical equipment to plaintiff AngioDynamics, Inc. ("ADI"), and agreed to indemnify ADI for any patent infringement claims. Such claims were brought against ADI by the patent-holders and ADI settled the claims. In a separate lawsuit in New York, ADI obtained a $23 million judgment (including interest) against BI under the indemnification clause. Attempting to secure payment on that judgment, ADI sued defendants in this case in Massachusetts on claims including corporate veil-piercing and violation of the Massachusetts Uniform Fraudulent Transfers Act ("MUFTA"), Mass. Gen. Laws ch. 109A, § 5. ADI alleged that BAG looted BI of more than $18 million to render BI judgment-proof and to move BI's assets beyond reach.

On August 29, 2012, the district court granted ADI a temporary restraining order which, among other things, barred defendants from "carry[ing] out the proposed 'downstream merger' of Biolitec AG with its Austrian subsidiary" and from "transfer[ring] any ownership interest [they] hold[] in any other defendant." ADI alleged that the merger would place the company's assets out of its reach, as American judgments are unenforceable in Austria. Following the merger, the Austrian company would hold all assets and liabilities previously held by BAG. On September 13, 2012, the court issued a preliminary injunction with the same terms as the temporary restraining order. The court denied defendants' motion for reconsideration on December 14, 2012, see AngioDynamics, Inc.  v. Biolitec AG, No. 09-cv-30181-MAP, 2012 WL 6569272 (D. Mass. Dec. 14, 2012), and defendants have appealed.

Our review of the grant of injunctive relief is for abuse of discretion, and we review legal questions de novo. See KG Urban Enters., LLC v. Patrick, 693 F.3d 1, 14 (1st Cir. 2012).

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