Recent patent infringement cases filed in the Eastern District of Texas

Marilyn Tennissen Aug. 27, 2009, 4:34am

Marshall Division

Aug. 24

  • Phoenix Licensing LLC et al vs. Allstate Corp. et al

    Plaintiff Phoenix claims to own U.S. Patent No. 5,987,434 issued Nov. 16, 1999, for an Apparatus and Method for Transacting Marketing and Sales of Financial Products and U.S. Patent No. 6,999,938 issued Feb. 14, 2006, for an Automated Reply Generation Direct Marketing System.

    The plaintiff alleges that defendants Allstate, Prudential, Barclays, New York Life, PNC Bank, Hartford, Twin City Fire Insurance, Hartford, Royal Bank of Scotland, Citizens, KeyCorp, Bank of America and FIA Card Services are infringing the patents-in-suit.

    In addition, Phoenix claims defendants have contributed to the infringement and induced others to infringe the patents-in-suit and will continue to do so unless enjoined.

    "Plaintiffs have been damaged by Defendants' infringement of the patents and will suffer additional irreparable damage and impairment of the value of its patents rights unless Defendants are enjoined from continuing to infringe the patents," the suit states.

    Phoenix also alleges that the infringements have been willful.

    The plaintiff is seeking compensatory damages, treble damages for willful infringement, costs, attorneys' fees, interest and other relief as justice requires.

    Elizabeth DeRieux and Calvin Capshaw III of Capshaw DeRieux LLP in Longview are representing the plaintiff.

    The case has been assigned to U.S. District Judge T. John Ward.

    Case No. 2:09-cv-255-TJW

  • Bruce Saffran M.D., Ph.D. vs. Abbott Laboratories

    Plaintiff Bruce Saffran is a medical doctor and a Ph.D. currently residing in Princeton, N.J.

    Dr. Saffran claims to be the lawful owner of all right and title to U.S. Patent No. 5,653,760 issued Aug. 5, 1997, for a Method and Apparatus for Managing Macromolecular Distribution.

    The doctor claims Abbott is infringing the '760 Patent through its drug eluting stents including the Xience V Everolimus-Eluting Coronary Stent System also marketed and labeled as the Promus Everolimus-Eluting Coronary Stent System.

    "On information and belief, the Abbott Product and the use thereof use, incorporate and embody the inventions claimed in the '760 Patent and are covered by one or more claims of the '760 Patent. Consequently, the manufacture, use, offer for sale, sale and/or importation of the Abbott Product constitutes direct infringement of the '760 Patent."

    The plaintiff claims Abbott is further liable as an active inducer of infringement and/or a contributory infringer of the '760 Patent because it has sold and knowingly encouraged, aided and abetted the manufacture, use or sale of the infringing product and has encouraged others to use the infringing product.

    Dr. Saffran claims Abbott is aware of the '760 Patent yet continues to directly and indirectly infringe the '760 Patent.

    He is seeking compensatory damages increased threefold for willfulness, costs, interest, attorneys' fees, a permanent injunction and other just and proper relief.

    Eric Albritton of Albritton Law Firm in Longview and attorneys from Dickstein Shapiro LLP in Washington, D.C., are representing the plaintiff.

    The case has been assigned to U.S. District Judge T. John Ward and referred to Magistrate Judge Charles Everingham for pre-trial proceedings.

    Case No. 2:09-cv-256-TJW-CE

    Tyler Division

    Aug. 19

  • Celltrace LLC vs. MetroPCS Communications Inc. and MetroPCS Wireless Inc.

    Plaintiff Celltrace is a limited liability company organized in the state of Texas with principal places of business located in Newport Beach, Calif., and Frisco, Texas.

    Defendants MetroPCS Communications and its subsidiary MetroPCS Wireless have places of business in Richardson.

    The plaintiff claims to own the rights to U.S. Patent No. 7,551,933 issued June 23 for a Telecommunications System.

    Celltrace alleges the defendants infringe one or more of the claims of the '933 Patent, including at least claim 17, without its consent or authorization.

    Such acts of infringement include the defendants' ownership, operation, use and provision of cellular networks for communicating with cellular telephones via messaging in an infringing manner, the complaint states.

    The plaintiff claims it has been damaged by the defendants' infringement, thus the defendants are liable to plaintiff in an amount that adequately compensates it but no less than a reasonable royalty.

    Celltrace is also seeking interest, costs, attorneys' fees and other just and proper relief.

    Brent Bumbardner of Nelson Bumgardner Casto PC in Fort Worth is attorney-in-charge for the plaintiff. Attorneys from The Ware Firm in Dallas and Ward & Smith Law Firm in Longview are also representing the plaintiff.

    The case has been assigned to U.S. District Judge Leonard E. Davis.

    Case No. 6:09-cv-00371-LED

    Aug. 24

  • Southwire Co. vs. Encore Wire Corp.

    According to the complaint, Southwire is a prominent cable and wire manufacturer which owns more than 400 patents and expands significant resources in research and development of new products.

    Southwire claims to own the rights to U.S. Patent No. 6,486,395 and U.S. Trademark Registration No. 3,292,777.

    The complaint states that the '395 Patent was issued Nov. 26, 2002, for an Interlocked Metal-Clad Cable.

    Southwire claims that Encore has sold, used or imported electrical cables including those under its MCMP Multipurpose mark or under the labels MC/MP or MC-MP.

    The plaintiff alleges that Encore knew of the '395 Patent as early as 2003, making its infringements of the patent willful and deliberate.

    In addition, Southwire claims it adopted and began using the MCAP mark it registered under the '777 Registration as early as March 2006.

    "Southwire has made significant expenditures to advertise and promote its electrical cables using the MCAP Mark, including advertising its electrical cables sold under the MCAP Mark through its Web site and in various print media," the suit states.

    "As the result of the widespread promotion and industry recognition surrounding the MCAP Mark and because of Southwire's exclusive use of the MCAP Mark in connection with its electrical cables, the public has come to associate cables sold in connection with the MCAP Mark with Southwire.

    "The MCAP Mark is thus and asset of substantial value as a symbol of Southwire, its quality products and its goodwill."

    The suit states that Encore registered its own trademark for MCMP Multipurpose cables under U.S. Trademark Registration No. 3,652,394. Encore first used the MCMP Mark in commerce on March 26, 2009.
    "On information and belief, Encore, with full knowledge of Southwire's rights in and to the MCAP Mark, has intentionally adopted and used the MCMP Mark in connection with the promotion and sale of its electrical cables," the suit states.

    Southwire alleges Encore's use of the MCMP Mark or Labels creates a likelihood of confusion in the minds of Southwire's customers, potential customers and the public, which gives Encore unfair competition

    The plaintiff alleges Encore has committed willful false and deceptive trade practices in violation of Texas law.

    Southwire is seeking compensatory damages, treble damages, interest, attorneys' fees, costs and additional relief deemed just and proper.

    The plaintiff seeks a permanent injunction enjoining Encore from using the MCAP Mark, MCMP Mark, MCMP Labels or any variation and that Encore's '394 Registration be cancelled.

    It is also asking the court to order Encore to destroy all products that bear the mark.

    Jason W. Cook of Alston & Bird LLP in Dallas is lead attorney for the plaintiff. Attorneys from Alston & Bird LLP in Atlanta, Ga., are of counsel.

    The case has been assigned to U.S. District Judge Leonard E. Davis.

    Case No. 6:09-cv-382-LED

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