Virginia IP Law : Virginia Intellectual Property Lawyer & Attorney : Troutman Sanders Law Firm : Technology & Patent Litigation

Over the past few weeks, we've noticed a spike in the number of non-government solicitations sent directly to United States trademark and patent holders. These notices appear to be sent from the U.S. Patent and Trademark Office but, instead, come directly from for-profit businesses attempting to confuse intellectual property owners with documents appearing official and requesting payment to a non-USPTO address.

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Last week, Judge Turk in the Western District of Virginia granted a plaintiff summary judgment on several elements of his false marking claims as well as on elements of his state law claims of false advertising and consumer protection act violations but held that whether the defendant acted with the intent to deceive was an issue for the jury at trial. Sukumar v. Nautilus, Inc., Case No. 7:11CV00218, 2012 U.S. Dist. LEXIS 16506 (W.D.Va. Feb. 10, 2012) (Turk, J.) (found here).

Sukumar designed several custom exercise machines for medical rehabilitation of the elderly and planned to build the machines himself, but feared that he might violate several patents listed on similar machines sold by Nautilus. In the end, he paid Nautilus $150,000 to manufacture customized equipment and claimed that Nautilus’ patent marking prevented him from designing and building his own customized machines.

Sukumar’s case was stayed pending Congress’ consideration of the America Invents Act (AIA). After passage of the AIA, Sukumar amended his Complaint to assert competitive injury and to add state law false advertising and consumer protection act claims.

Sukumar moved for partial summary judgment on its false patent marking claim and on its claims of violations of California’s false advertising law and Washington’s consumer protection act. Judge Turk denied summary judgment on any claim, but, interestingly, entered summary judgment on individual elements of each of the claims. 

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Earlier today, the Panel on Multidistrict Litigation issued an Order setting Bear Creek's motion to consolidate its various patent cases (as reported previously here) for March 29, 2012, in San Diego.  A copy of that Order can be found here.

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On January 26, 2012, Bear Creek Technologies, Inc. ("Bear Creek") filed a Notice of Filing Motion for Multi-District Litigation pursuant to 28 U.S.C. § 1407, in Bear Creek Technologies, Inc. v. RCN Telecom Services, LLC, Civil Action No.: 2:11-cv-103 (RAJ/FBS).  This is an interesting new chapter in this long-running saga. 

Back on February 22, 2011, Bear Creek launched patent litigation against 23 different telecommunications companies in the EDVA, and the case was assigned to Judge Raymond A. Jackson in the Norfolk Division.  After numerous several months and numerous (340+) docket entries, Judge Jackson -- perhaps anticipating the AIA -- raised the issue of misjoinder sua sponte and pursuant to several motions to sever, and then proceeded to drop all of the defendants except RCN Telecom Services (the first named defendant in the case).  That August 17, 2011 Memorandum Opinion and Order can be found here. 

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