MARSHALL DIVISION

July 13

  • Promote Innovation LLC v. Leviton Manufacturing Co. Inc.

    Promote Innovation is a Texas limited liability company with its principal place of business in Houston.

    The plaintiff accuses the defendant of false patent marking its ground fault circuit interrupter products with U.S. Patent No. 6,864,766 which was ruled unenforceable for inequitable conduct on Dec. 23, 2008.

    Due to the 2008 ruling, Leviton Manufacturing sued its past lawyers for malpractice and breach of fiduciary duty for not disclosing to the patent office there were other co-pending applications with nearly identical claims to the '766 patent application.

    On May 28, the Court of Appeals for the Federal Circuit vacated the previous decision and concluded Leviton is entitled to a bench trial on inequitable conduct.

    Promote is asking the court to order the defendants to pay a civil monetary fine of $500 per false marking offense, with one-half being paid to the United States.

    Jury trial requested.

    The plaintiff is represented by Houston attorneys Zachariah S. Harrington, Matthew J. Antonelli and Larry D. Thompson of Antonelli, Harrington & Thompson in Houston.

    U.S. District Judge T. John Ward is assigned to the case.

    Case No. 2:10cv00235-TJW

    July 14

  • Americans for Fair Patent Use LLC v. Sprint Nextel Corp., et al

    Americans for Fair Patent Use is a Texas limited liability company with its principal place of business in Austin. According to the complaint, the company was established by the law firm F&B LLP to "encourage the fair use of the patent system and deter abuse of the patent system which harms the public welfare and stifles competition."

    The defendants are Sprint Nextel Corp., Sprint Spectrum L.P., Apple Inc., Cellco Partnership doing business as Verizon Wireless and Samsung Telecommunications America LLC.

    Americans for Fair Patent Use accuses the defendants of falsely marking numerous products with expired patents or patents that do not cover the marked products.

    The patents at issue include:

  • U.S. Patent D367,062 for an design for an antenna;
  • U.S. Patent D372,248 for the design for a communication device;
  • U.S. Patent D372,201 for the design for a shrink wrap battery pack;
  • U.S. Patent D416,857 for the design for a battery housing for a PCMCIA card modem;
  • U.S. Patent D442,170 for the design for connector for an antenna;
  • U.S. Patent D452,495 for the design for a wireless communication device for a personal data assistant;
  • U.S. Patent D452,496 for the design for a wireless communication device for a personal data assistant;
  • U.S. Patent D459,303 for the design for an audio connector for a PC Card;
  • U.S. Patent D559,256 for the design for a wireless electronic communications card;
  • U.S. Patent D560,911 for the design for a carrying case for an electronic communications card;
  • U.S. Patent No. 4,577,216 which expired on April 17, 2005;
  • U.S. Patent No. 4,819,098 which expired on April 4, 2006;
  • U.S. Patent No. 4,907,093 which expired on March 6, 2007;
  • U.S. Patent No. 4,901,307 which expired on Feb. 13, 2007;
  • U.S. Patent No. 5,056,109 which expired on Nov. 7, 2009;
  • U.S. Patent No. 5,101,501 which expired on Nov. 7, 2009; and
  • U.S. Patent No. 5,109,390 which expired on Nov. 7, 2009.

    The plaintiff is asking the court to order an accounting for the past five years of all falsely marked products, for a civil fine of $500 per violation, with half being paid to the United States, for an order enjoining the defendants from distributing products falsely marked and an order enjoining the defendants from mismarking products.

    Jury trial is requested.

    Americans for Fair Patent Use is represented by Austin attorneys Reese P. McKnight and Adam V. Floyd of F&B LLP.

    U.S. District Judge T. John Ward is assigned to the case.

    Case No. 2:10cv00237-TJW

    July 15

  • Promote Innovation LLC v. DirecTv, et al.

    Promote Innovation is a Texas limited liability company with its principal place of business in Houston.

    The defendants are DirecTv Group Inc., DirecTv Holdings LLC and DirecTv Inc.

    The plaintiff accuses the defendants of falsely marking their DirecTv products with U.S. Patent No. 4,631,603 which expired on April 17, 2005; U.S. Patent No. 4,819,098 which expired on April 4, 2006; U.S. Patent No. 4,907,093 which expired on March 6, 2007; and U.S. Patent No. 4,706,121 which expired on July 12, 2006.

    Promote is asking the court to order the defendants to pay a civil monetary fine of $500 per false marking offense, with one-half being paid to the United States.

    Jury trial requested.

    The plaintiff is represented by Houston attorneys Zachariah S. Harrington, Matthew J. Antonelli and Larry D. Thompson of Antonelli, Harrington & Thompson in Houston.

    U.S. District Judge T. John Ward is assigned to the case.

    Case No. 2:10cv00239-TJW

  • Promote Innovation LLC v. Flex Rest Inc. and Flex Rest LLC

    The plaintiff accuses the defendants of falsely marking their Flex Rest products with U.S. Patent No. 5,709,489 which was ruled invalid and upheld by the federal Appeals Court on July 13, 2006.

    Promote is asking the court to order the defendants to pay a civil monetary fine of $500 per false marking offense, with one-half being paid to the United States.

    Jury trial requested.

    The plaintiff is represented by Houston attorneys Zachariah S. Harrington, Matthew J. Antonelli and Larry D. Thompson of Antonelli, Harrington & Thompson in Houston.

    U.S. District Judge T. John Ward is assigned to the case.

    Case No. 2:10cv00240-TJW

  • Promote Innovation LLC v. Gloucester Pharmaceuticals Inc. and Celgene Corp.

    The plaintiff accuses the defendants of falsely marking their Istodax products with U.S. Patent No. 4,977,138 which expired on July 6, 2009. Promote states the falsely marked products were not approved by U.S. Food and Drug Administration until after the patent expired.

    Promote is asking the court to order the defendants to pay a civil monetary fine of $500 per false marking offense, with one-half being paid to the United States.

    Jury trial requested.

    The plaintiff is represented by Houston attorneys Zachariah S. Harrington, Matthew J. Antonelli and Larry D. Thompson of Antonelli, Harrington & Thompson in Houston.

    U.S. District Judge T. John Ward is assigned to the case.

    Case No. 2:10cv00241-TJW

  • Promote Innovation LLC v. Pfizer Inc., et al.

    The defendants are Pfizer Inc., Pharmacia & Upjohn Co. Inc. and Bayer Healthcare Pharmaceuticals Inc.

    The plaintiff accuses the defendants of falsely marking their Glyset products with U.S. Patent No. 4,639,439 which expired on Jan. 27, 2009. Promote states that the label for Glyset has been revised twice since the expiration date of the patent but the product continues to be marked with the expired '439 patent.

    Promote is asking the court to order the defendants to pay a civil monetary fine of $500 per false marking offense, with one-half being paid to the United States.

    Jury trial requested.

    The plaintiff is represented by Houston attorneys Zachariah S. Harrington, Matthew J. Antonelli and Larry D. Thompson of Antonelli, Harrington & Thompson in Houston.

    U.S. District Judge T. John Ward is assigned to the case.

    Case No. 2:10cv00242-TJW

  • Promote Innovation LLC v. Skinmedica Inc. and Bristol-Myers Squibb Co.

    The plaintiff accuses the defendants of falsely marking their Vaniqa products with U.S. Patent No. 4,720,489 which expired on Jan. 19, 2005. Promote argues that the defendants have modified their packages for Vaniqa since the '489 patent expired but the product continues to be marked with the expired patent.

    Promote is asking the Court to order the defendants to pay a civil monetary fine of $500 per false marking offense, with one-half being paid to the United States.

    Jury trial requested.

    The plaintiff is represented by Houston attorneys Zachariah S. Harrington, Matthew J. Antonelli and Larry D. Thompson of Antonelli, Harrington & Thompson in Houston.

    U.S. District Judge T. John Ward is assigned to the case.

    Case No. 2:10cv00245-TJW

  • Promote Innovation LLC v. Abbott Laboratories Inc., Takeda Pharmaceutical Co. Ltd.

    The plaintiff accuses the defendants of falsely marking their Lupron products, including Lupron, Lupron Depot, Lupron Depot-3, Lupron Depot-4, Lupron Depot-Ped and Lepron Injection products with U.S. Patent No. 4,652,441 which expired on Nov. 1, 2004; U.S. Patent No. 4,677,191 which expired on July 3, 2005; U.S. Patent No. 4,728,721 which expired on May 1, 2006; U.S. Patent No. 4,849,228 which expired on July 18, 2006; U.S. Patent No. 4,917,893 which expired on March 24, 2004; and U.S. Patent No. 4,005,063 which expired on Jan. 25, 1994.

    Promote alleges the defendants have a history of illegally marking their Lupron products.

    "On Oct. 3, 2001, the Department of Justice announced that TAP Pharmaceutical Products agreed to pay the government a record $875 million to settle extensive civil and criminal charges of illegally marketing and manipulating the costs of Lupron under the Medicare and Medicaid programs," the lawsuit states.

    Promote is asking the court to order the defendants to pay a civil monetary fine of $500 per false marking offense, with one-half being paid to the United States.

    Jury trial requested.

    The plaintiff is represented by Houston attorneys Zachariah S. Harrington, Matthew J. Antonelli and Larry D. Thompson of Antonelli, Harrington & Thompson in Houston.

    U.S. District Judge T. John Ward is assigned to the case.

    Case No. 2:10cv00246-TJW

  • Promote Innovation LLC v. Intendis Inc.

    The plaintiff accuses the defendant of falsely marking its Finacea products and its NeoBenz Micro products with U.S. Patent No. 4,713,394 which expired on Jan. 17, 2006; and U.S. Patent No. 4,690,825 which expired on Oct. 4, 2005.

    Promote is asking the court to order the defendant to pay a civil monetary fine of $500 per false marking offense, with one-half being paid to the United States.

    Jury trial requested.

    The plaintiff is represented by Houston attorneys Zachariah S. Harrington, Matthew J. Antonelli and Larry D. Thompson of Antonelli, Harrington & Thompson in Houston.

    U.S. District Judge T. John Ward is assigned to the case.

    Case No. 2:10cv00247-TJW

    July 19

  • Promote Innovation LLC v. Schering Corp., Merck & Co. Inc. and Cima Labs Inc.

    Promote Innovation is a Texas limited liability company with its principal place of business in Houston.

    The plaintiff accuses the defendants of falsely marking Clarinex products including Clarinex Tablets, Clarinex Syrup, Clarinex RediTabs, Clarinex-D 12 Hour Extended Release Tablets and Clarinex-D 24 Hour Extended Release Tablets with U.S. Patent No. 4,659,715 which expired on March 31, 2007 and U.S. Patent No. 4,863,931 which expired on Sept. 15, 2008.

    Promote is asking the court to order the defendants to pay a civil monetary fine of $500 per false marking offense, with one-half being paid to the United States.

    Jury trial requested.

    The plaintiff is represented by Houston attorneys Zachariah S. Harrington, Matthew J. Antonelli and Larry D. Thompson of Antonelli, Harrington & Thompson in Houston.

    U.S. District Judge T. John Ward is assigned to the case.

    Case No. 2:10cv00248-TJW

  • Promote Innovation LLC v. Roche Diagnostics Corp. and Roche Diagnostics Operations Inc.

    The plaintiff accuses the defendants of falsely marking their blood glucose meter products with U.S. Patent No. 4,924,879 which expired on Oct. 7, 2008; U.S. Patent No. 4,999,582 which expired on Dec. 15, 2009; U.S. Patent No. 5,053,199 which expired on Feb. 21, 2009; and U.S. Patent No. Re. 36,268 which was ruled unenforceable on June 20, 2005.

    Promote argues that the defendants have included one or more of the expired patents on manuals created or revised after the patents were expired or ruled unenforceable.

    Promote is asking the court to order the defendants to pay a civil monetary fine of $500 per false marking offense, with one-half being paid to the United States.

    Jury trial requested.

    The plaintiff is represented by Houston attorneys Zachariah S. Harrington, Matthew J. Antonelli and Larry D. Thompson of Antonelli, Harrington & Thompson in Houston.

    U.S. District Judge T. John Ward is assigned to the case.

    Case No. 2:10cv00249-TJW

  • Promote Innovation LLC v. Praxair Inc.

    The plaintiff accuses the defendant of falsely marking its Praxair Uptime products with U.S. Patent No. 6,045,115 which was ruled unenforceable and upheld by the U.S. Court of Appeals on Sept. 29, 2009.

    Promote is asking the court to order the defendants to pay a civil monetary fine of $500 per false marking offense, with one-half being paid to the United States.

    Jury trial requested.

    The plaintiff is represented by Houston attorneys Zachariah S. Harrington, Matthew J. Antonelli and Larry D. Thompson of Antonelli, Harrington & Thompson in Houston.

    U.S. District Judge T. John Ward is assigned to the case.

    Case No. 2:10cv00250-TJW

    TEXARKANA DIVISION

  • Tex Pat cases

    Tex Pat is a Texas limited liability company with its principal place of business in Houston.

    The plaintiff is asking the court to issue an injunction preventing the defendants from continued violations and to order the defendants to pay a civil monetary fine of $500 per false marking offense, with one-half being paid to the United States, plus interest.

    The plaintiff is represented by Hao Ni of Ni Law Firm in Dallas, Tyler Brochstein of Brochstein Law Firm in Dallas and Jack Siegel in Dallas.

    Jury trial is requested on all cases.

    July 18

  • Tex Pat LLC v. 3M Company, et al.

    The defendants are 3M Company, 3M Purification Inc. formerly known as Cuno Inc. and Cuno Engineered Products Inc.

    The plaintiff is accusing the defendants of falsely marking its products including the following:

  • 3M Scotchal Perforated Window Graphic Film with U.S. Patent No. 4,673,609 which expired on July 29, 2005;
  • Electrosurgical Grounding Pads Products with U.S. Patent No. 4,352,359 which expired on Oct. 5, 1999, U.S. Patent No. 4,524,087 which expired on June 18, 2002 and U.S. Patent No. 4,539,996 which expired on Sept. 10, 2002;
  • Vikuiti Brightness Enhancement Film – II (BEFII) 90/50, Product Kit – 10 Sheets products with U.S. Patent No. 4,791,540 which expired on May 26, 2007;
  • Vikuiti Transmissive Right Angle Film (TRAF), Product Kit – 10 Sheets and Vikuiti Transmissive Right Angle Film (TRAF) Product Kit – 30 Sheets with U.S. Patent No. 4,799,137 which expired on March 24, 2007, and U.S. Patent No. 5,040,833 which expired on May 1, 2010;
  • Zeta Plus Filter Products with U.S. Patent No. 4,859,340 which expired on Dec. 15, 1998; U.S. Patent No. 4,007,113 which expired on July 22, 1995; U.S. Patent No. 4,981,591 which expired on April 7, 2009; U.S. Patent No. 5,085,780 which expired on April 7, 2009; and U.S. Patent No. 5,085,784 which expired on April 7, 2009, and;
    Zeta Plus H Series Filter Sheet with U.S. Patent No. 4,309,247 which expired on Jan. 5, 1999.

    U.S. District Judge David Folsom is assigned to the case.

    Case No. 5:10cv00115-DF

  • Tex Pat LLC v. Medline Holdings Inc., et al.

    The defendants are Medline Holdings Inc., Medline Industries Inc. and Medline Manufacturing and Services LLC.

    The plaintiff is accusing the defendants of falsely marking its products including the following:

  • Electrosurgical Grounding Pads with U.S. Patent No. 4,352,359 which expired on Oct. 5, 1999; U.S. Patent No. 4,524,087 which expired on June 18, 2002; and U.S. Patent No. 4,539,996 which expired on Sept. 10, 2002; and
  • XCell Cellulose Dressing products with U.S. Patent No. 4,788,146 which expired on Nov. 29, 2005.

    U.S. District Judge T. John Ward is assigned to the case.

    Case No. 5:10cv00116-TJW

    July 19

  • Tex Pat LLC v. LVB Acquisition Inc., et al.

    The defendants are LVB Acquisition Inc., LVB Acquisition Holding LLC, Biomet Inc. and Biomet Orthopedics LLC, formerly known as Biomet Orthopedics Inc.

    The plaintiff is accusing the defendants of falsely marking its products including the following:

  • Ultra-Drive 3 Ultrasonic Revision Systems products with U.S. Patent No. 5,019,083 which expired on Jan. 13, 2009; U.S. Patent No. D341,201 which expired on Nov. 9. 2007; U.S. Patent No. D339,419 which expired on Sept. 14, 2007; U.S. Patent No. 4,248,232 which expired on Sept. 12, 1998; U.S. Patent No. D340,981 which expired on Nov. 2, 2007; U.S. Patent No. D341,202 which expired on Nov. 9, 2007; U.S. Patent No. 5,045,054 which expired on Feb. 6, 2010; and U.S. Patent No. D343,313 which expired Dec. 14, 2007.

    U.S. District Judge David Folsom is assigned to the case.

    Case No. 5:10cv00117-DF

  • Tex Pat LLC v. Koninklijke Philips Electronics N.V., doing business as Royal Phillips Electronics, et al.

    The defendants are Koninklijke Philips Electronics N.V. doing business as Royal Philips Electronics, Philips Electronics North America Corp., Philips Healthcare formerly known as Philips Medical Systems N.A. and Respironics Inc. doing business as Philips Respironics.

    The plaintiff is accusing the defendants of falsely marking its products including the following:

  • Assess Peak Flow Meter – Full Range and Assess Peak Flow meter – Low Range with U.S. Patent No. 4,944,306 which expired on July 31, 2007; and U.S. Patent No. D254,443 which expired on March 11, 1994.

    U.S. District Judge David Folsom is assigned to the case.

    Case No. 5:10cv00118-DF

  • Tex Pat, LLC. v. Xylos Corp., et al.

    The defendants are Xylos Corp., Lohmann & Rauscher International GMBH & Co. KG and Lohmann & Rauscher Inc.

    The plaintiff is accusing the defendants of falsely marking its products including the following:

  • XCell Cellulose Wound Dressing products with U.S. Patent No. 4,588,400 which expired on May 13, 2003; U.S. Patent No. 4,655,758 which expired on June 27, 2005; and U.S. Patent No. 4,788,146 which expired on Nov. 29, 2005.

    U.S. District Judge David Folsom is assigned to the case.

    Case No. 5:10cv00121 – DF

    TYLER DIVISION

    July 14

  • Patent Group LLC v. Cedar Works LLC, et al.

    Patent Group is a Texas limited liability company.

    The defendants are Cedar Works LLC, Central Garden & Pet Co. and Pennington Seed Inc.

    The plaintiff accuses the defendants of falsely marking its bird feeders as protected by patents that are not in force. The defendants are accused of falsely marking its Harvest Landing Classic Cooper Deluxe Sentinel Bird Feeder with U.S. Patent No. 3,009,645 which expired on Nov. 21, 1978.

    Patent Group is asking the court to issue an injunction prohibiting the defendants from continuing acts of false marking, for a civil fine of $500 per falsely marked article, with one-half being award to the United States and for an award of interest, attorneys fees, costs and an enhancement of damages and penalties.

    Jury trial requested.

    Patent Group is represented by Tyler attorney Ken W. Good of Kent, Good, Anderson & Bush PC.

    U.S. District Judge Leonard Davis is assigned to the case.

    Case No. 6:10cv00344-LED

  • Patent Group LLC v. Water Sports LLC.

    Patent Group is a Texas limited liability company.

    The plaintiff accuses the defendant of falsely marking its water launchers as protected by patents that are not in force. Water Sports is accused of falsely marking its Stream Machine Hyrobolic Water Launcher with U.S. Patent No. D351,007 which expired on Sept. 7, 2008.

    Patent Group is asking the court to issue an injunction prohibiting the defendant from continuing acts of false marking, for a civil fine of $500 per falsely marked article, with one-half being award to the United States and for an award of interest, attorneys fees, costs and an enhancement of damages and penalties
    Jury trial requested.

    Patent Group is represented by Tyler attorney Ken W. Good of Kent, Good, Anderson & Bush PC.

    U.S. District Judge Leonard Davis is assigned to the case.

    Case No. 6:10cv00345-LED

  • Patent Group LLC v. Woodstream Corp.

    Patent Group is a Texas limited liability company.

    The plaintiff accuses the defendant of falsely marking its bird feeders as protected by patents that are not in force. The defendants are accused of falsely marking its Perky-Pet Brand No. 3362 Squirrel-Be-Gone with U.S. Patent No. 4,646,686 which expired on Aug. 5, 2005.

    Patent Group is asking the court to issue an injunction prohibiting the defendant from continuing acts of false marking, for a civil fine of $500 per falsely marked article, with one-half being award to the United States and for an award of interest, attorneys fees, costs and an enhancement of damages and penalties

    Jury trial requested.

    Patent Group is represented by Tyler attorney Ken W. Good of Kent, Good, Anderson & Bush PC.

    U.S. District Judge Leonard Davis is assigned to the case.

    Case No. 6:10cv00346-LED

    July 16

  • FFP, LLC. v. Adams Respiratory Therapeutics Inc., et al.

    FFP is an Illinois limited liability corporation.

    The defendants are Adams Respiratory Therapeutics Inc., Reckitt Benckiser Group PLC, Reckitt Benckiser (North America) Inc., Reckitt Benckiser Pharmaceutical Inc., Reckitt Benckiser USA General Partnership and Twickenham Inc.

    The plaintiff accuses the defendants of infringing on U.S. Patent No. 7,207,505B2 issued April 24, 2007, for a Method for Producing Small Granules.

    FFP states the defendants are willfully and deliberately infringing on the '505B2 patent during the process of manufacturing Mucinex.

    The plaintiff is asking for an award of damages, including treble damages, gains, profits, advantages and unjust enrichment, attorney's fees, court costs and interest.

    The plaintiff is represented by J. Thad Heartfield and M. Dru Montgomery of The Heartfield Law Firm in Beaumont, Edward L. Foote of Winston & Strawn in Chicago, Ill., Robert M. Foote and Matthew J. Herman of Foote, Meyers, Mielke & Flowers in Saint Charles, Ill., and Kathleen C. Chavez of the Chavez Law Firm in Saint Charles, Ill.
    Jury trial requested.

    Case No. 6:10cv00351

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