Lipitor Antitrust Litigation

This opinion addresses two sets of consolidated appeals concerning two pharmaceutical drugs: Lipitor and Effexor XR. In both sets of consolidated appeals, plaintiffs allege that the companies holding the patents related to Lipitor and Effexor XR fraudulently procured and enforced certain of those patents. Plaintiffs further allege that those companies holding the patents entered into unlawful, monopolistic settlement agreements with potential manufacturers of generic versions of Lipitor and Effexor XR. The same District Court Judge dismissed the complaints in the Lipitor litigation and dismissed certain allegations in the Effexor litigation. Those decisions relied on plausibility determinations that are now challenged on appeal.

We begin with a brief summary of the relevant regulatory scheme applicable to pharmaceutical drugs and then detail the factual and procedural backgrounds of these two sets of consolidated appeals. The remainder of the opinion broadly covers two issues. First, in F.T.C. v. Actavis, Inc., 133 S. Ct. 2223 (2013), the Supreme Court concluded that payments from patentees to infringers through “reverse payment settlement agreements” are subject to antitrust scrutiny. Id. at 2227. In both sets of consolidated appeals, plaintiffs allege that the companies holding the pharmaceutical patents and the generic manufacturers entered into such agreements. We are asked to decide whether those allegations are plausible. We conclude, as to both sets of appeals, that they are. Second, regarding only the Lipitor consolidated appeals, we address whether plaintiffs in those appeals pled plausible allegations of fraudulent patent procurement and enforcement, as well as other related misconduct. We again determine that those allegations are indeed plausible. Accordingly, we will reverse the District Court’s dismissal of the complaints in the Lipitor litigation, reverse its dismissal of the allegations in the Effexor litigation, and remand for further proceedings.

Download Lipitor Antitrust Litigation

Need help protecting your intellectual property? Visit Gehrke & Associates, SC to learn more about how we can help enhance and defend your intellectual property.  Thank you.

Disney Enterprises, Inc. v. VidAngel, Inc.

The panel affirmed the district court’s preliminary injunction against the defendant in an action under the Copyright Act and the Digital Millennium Copyright Act.

Defendant VidAngel, Inc., operated an online streaming service that removed objectionable content from movies and television shows. VidAngel purchased physical discs containing copyrighted movies and television shows, decrypted the discs to “rip” a digital copy to a computer, and then streamed to its customers a filtered version of the work.

The panel held that the district court did not abuse its discretion in concluding that VidAngel’s copying infringed the plaintiffs’ exclusive reproduction right. Because VidAngel did not filter authorized copies of movies, it was unlikely to succeed on the merits of its defense that the Family Movie Act of 2005 exempted it from liability for copyright infringement. VidAngel also was unlikely to succeed on its fair use defense.

The panel held that the district court also did not abuse its discretion in concluding that the plaintiffs were likely to succeed on their DCMA claim.

The panel held that the anticircumvention provision of the DMCA, 17 U.S.C. § 1201(a), covered the plaintiffs’ technological protection measures, which controlled both access to and use of the copyrighted works.

The panel affirmed the district court’s findings regarding the likelihood of irreparable harm, the balancing of the equities, and the public interest.

Download Disney Enterprises Inc. v. VidAngel Inc.

Need help protecting your intellectual property? Visit Gehrke & Associates, SC to learn more about how we can help enhance and defend your intellectual property.  Thank you.

Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co., Ltd.

Nidec Motor Corporation (“Nidec”) appeals a final written decision of the Patent Trial and Appeal Board (“Board”) in an inter partes review (“IPR”). The Board determined that claims 1–3, 8, 9, 12, 16, and 19 of U.S. Patent No. 7,626,349 (the “’349 Patent”) are invalid as anticipated or obvious. We affirm.

Download Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co. Ltd.

Need help protecting your intellectual property? Visit Gehrke & Associates, SC to learn more about how we can help enhance and defend your intellectual property.  Thank you.

Wine & Canvas Development, LLC v. Muylle

Wine and Canvas Develop‐ ment, LLC, Anthony Scott, Tamara McCracken, and Donald McCracken sued Christopher Muylle, Theodore Weisser, YN Canvas CA, LLC, Art Uncorked LLC, and Weisser Manage‐ ment Group LLC, bringing federal trademark and state law claims. Muylle brought several counterclaims, including one for abuse of process under Indiana law. Weisser defaulted, and it appears that Weisser and Muylle were the only mem‐ bers of the defendant LLCs, so practically speaking the case ultimately amounted to Plaintiffs against Muylle. Pretrial motions disposed of much of the case, and the jury found for Muylle on Plaintiffs’ trademark infringement and false des‐ ignation of origin claims and on Muylle’s abuse of process counterclaim. Plaintiffs appeal, and we affirm.

Download Wine & Canvas Development LLC v. Muylle

Need help protecting your intellectual property? Visit Gehrke & Associates, SC to learn more about how we can help enhance and defend your intellectual property.  Thank you.

Georgetown Rail Equipment Co. v. Holland L.P.

Following a claim construction ruling adverse to Appellant Holland L.P. (“Holland”), a jury in the U.S. District Court for the Eastern District of Texas (“District Court”) found that Holland infringed Appellee Georgetown Rail Equipment Company’s (“Georgetown”) U.S. Patent 7,616,329 (“the ’329 patent”) and awarded Georgetown lost profits. The District Court later approved an additional award of enhanced damages based on a finding of willful infringement. Holland appeals the District Court’s conclusions as to claim construction, willful infringement, and enhanced damages, as well as its decision to deny Holland’s renewed motion for judgment as a matter of law (“JMOL”) of noninfringement. See Georgetown Rail Equip. Co. v. Holland L.P. (Georgetown Rail II), No. 6:13-cv-366, 2016 WL 3346084, at *1 (E.D. Tex. June 16, 2016) (denying JMOL and granting Motions for Finding of Willful Infringement and Enhanced Damages); Georgetown Rail Equip Co. v. Holland L.P. (Georgetown Rail I), No. 6:13-cv-366-JDL, 2014 WL 11498109, at *1 (E.D. Tex. Nov. 13, 2014) (Claim Construction Order); J.A. 162−63 (Final Judgment). We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1) (2012). We affirm.

Download Georgetown Rail Equipment Co. v. Holland L.P.

Need help protecting your intellectual property? Visit Gehrke & Associates, SC to learn more about how we can help enhance and defend your intellectual property.  Thank you.

Visual Memory LLC v. NVIDIA Corp.

Visual Memory, LLC appeals the district court’s dismissal of its patent infringement complaint against NVIDIA Corporation. The district court held that Visual Memory’s U.S. Patent No. 5,953,740 is drawn to patent ineligible subject matter, and therefore its complaint failed to state a claim under Federal Rule of Civil Procedure 12(b)(6). We conclude instead that the ’740 patent claims an improvement to computer memory systems and is not directed to an abstract idea. Accordingly, we reverse the district court and remand for further proceedings.

Download Visual Memory LLC v. NVIDIA Corp.

Need help protecting your intellectual property? Visit Gehrke & Associates, SC to learn more about how we can help enhance and defend your intellectual property.  Thank you.

In re: North Carolina Lottery

Appellant North Carolina Lottery (“N.C. Lottery”) seeks to register the mark “FIRST TUESDAY” in connection with lottery services and games, to market the introduction of new scratch-off lottery games on the first Tuesday of each month. It appeals the decision of the U.S. Patent and Trademark Office’s (“PTO”) Trademark Trial and Appeal Board (“TTAB”) denying registration of the mark. We affirm.

Download North Carolina Lottery

Need help protecting your intellectual property? Visit Gehrke & Associates, SC to learn more about how we can help enhance and defend your intellectual property.  Thank you.

Amgen, Inc. v. Hospira, Inc.

Amgen Inc. (“Amgen”) appeals an order of the United States District Court for the District of Delaware denying Amgen’s motion to compel discovery from Hospira, Inc. (“Hospira”) in a patent infringement case governed by the Biologics Price Competition and Innovation Act of 2009 (“BPCIA”), Pub. L. No. 111-148, 124 Stat. 119, 804 (2010) (amending 42 U.S.C. § 262). Amgen alternatively seeks a writ of mandamus ordering the court to compel discovery.

Because we lack jurisdiction over the district court’s order under the collateral order doctrine and find that Amgen fails to satisfy the prerequisites for mandamus, we dismiss the appeal and deny the writ.

Download Amgen Inc.. v. Hospira Inc.

Need help protecting your intellectual property? Visit Gehrke & Associates, SC to learn more about how we can help enhance and defend your intellectual property.  Thank you.

Romag Fasteners, Inc. v. Fossil, Inc.

Romag Fasteners, Inc. (“Romag”) owns U.S. Patent No. 5,722,126 (“’126 patent”) on magnetic snap fasteners, which it sells under its registered trademark, ROMAG, U.S. Trademark Reg. No. 2,095,367 (“’367 trademark”). Romag sued Fossil, Inc. and various retailers (together, “Fossil”) for, inter alia, patent infringement, trademark infringement, and violation of the Connecticut Unfair Trade Practices Act (“CUTPA”) in the U.S. District Court for the District of Connecticut (“district court”). The jury returned a verdict for Romag, finding that Fossil had engaged in patent and trademark infringement and in unfair trade practices. A two-day bench trial resolving other issues followed, after which the district court entered judgment on the jury verdict. This court affirmed the judgment of patent and trademark infringement; other aspects of the judgment were not appealed. See Romag Fasteners, Inc. v. Fossil, Inc., Nos. 2014-1896, 2014-1897, 2017 WL 1906904 (Fed. Cir. May 3, 2017) (“Romag II”).

Romag sought attorney’s fees under the Patent Act, 35 U.S.C. § 285, Lanham Act, 15 U.S.C. § 1117(a), and CUTPA. The district court granted fees under the Patent Act and CUTPA, but not under the Lanham Act. Fossil appeals and Romag cross-appeals. We vacate and remand.

Download Romag Fasteners Inc. v. Fossil Inc.

Need help protecting your intellectual property? Visit Gehrke & Associates, SC to learn more about how we can help enhance and defend your intellectual property.  Thank you.