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COVID-19 IP Catch-Up: NY Trial Finally Starts, Texas Holds Off

Tiomkin Law Offices of Elliott Tiomkin > Legal News  > COVID-19 IP Catch-Up: NY Trial Finally Starts, Texas Holds Off

COVID-19 IP Catch-Up: NY Trial Finally Starts, Texas Holds Off

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Law360 (July 10, 2020, 10:23 PM EDT) — The COVID-19 pandemic has caused a drug patent trial in New York to go remote and again delayed a media streaming patent trial in Texas. Meanwhile, 3M settled a fraud suit tied to its N95 masks, and Jeff Dunham received pushback from a company selling face masks with his image. Here are some recent intellectual property updates tied to the outbreak that you may have missed.

Trials:

How and when intellectual property is going to go on trial is still one of the biggest issues playing out, and there was some movement this week. Namely, a long-awaited trial between Ferring Pharmaceuticalsand Serenity Pharmaceuticals in the Southern District of New York tied to Ferring’s nighttime urination medication Nocdurna kicked off over Zoom.

Over the first few days, Serenity said it’s seeking $388,700 for Ferring’s alleged infringement, and experts for Ferring testified from Europe.

In Delaware, Chief U.S. District Judge Leonard Stark said on June 6 that he’s still planning for an early August trialbetween Sunocoand Magellan Midstream in litigation over gasoline patents. He said it will proceed as “an experiment,” with jurors attending in person and witnesses testifying remotely.

A little farther south, the pandemic stirred up drama in the government’s case targeting an allegedly illegal television and movie streaming service. A Virginia federal judge on Thursday vowed to issue bench warrantsto two defendants who didn’t appear in court to face their federal charges.

Counsel for Kristopher Lee Dallmann and Jared Edward Jaurequi, who run an online subscription service that allegedly cost television and movie copyright owners millions of dollars, said Wednesday that they weren’t able to board their flight from Nevada because they hadn’t received the results of their COVID-19 tests yet.

U.S. District Judge T.S. Ellis III shot back that they need to stop using the pandemic as an excuse and pointed to accommodations already being made by the government.

Finally, U.S. District Judge Alan D. Albright on Tuesday again pushed backa jury trial in MV3 Partners LLC’s infringement suit against Roku Inc., with new dates eyed for September. The Texas trial involving a streaming media patent had originally been set for June, and has been repeatedly delayedas the pandemic plays out.

Other litigation:

OoShirts Inc. on May 6 had moved to dismiss a multimillion-dollar suit lodged by Jeff Dunham. The comedian’s April suit had accused the California merchandise company of illegally using his name, face and ventriloquism characters to sell T-shirts, coronavirus face masks and other merchandise. He promised to donate any recoveries.

The dismissal motion says the suit is too vague, and it’s unclear which of the more than 50 defendants played which roles in the alleged misconduct. The company also claims that any infringement was done by third parties who designed and uploaded the content.

Counsel for Dunham didn’t immediately respond to a request for comment Friday.

3M Co. on Thursday announced a deal with Zachary Puznak and his company ZeroAqua. The suit against Puznak accused him of offering to sell as many as 5 billion N95 masks to the Indiana Economic Development Corp. by claiming to be in direct contact with “executives from 3M.” When pressed for verification, he allegedly accused IEDC of “paranoid irrationality.”

Puznak consented to a permanent injunction and made a payment to 3M, which will be donated to COVID-19 relief efforts, 3M’s counsel at Faegre Drinker Biddle & Reath LLPsaid in a statement.

In a company statement, 3M attorney William Childs said “the resolution of this case has permanently stopped a scam that used 3M’s name and the promise of nonexistent N95 respirators to target emergency officials and profiteer during the pandemic.”

The deal required Puznak to apologize to the state of Indiana. In 3M’s statement, Puznak was cited as saying, “if I understood then what I understand now, I never would have gotten involved in this scheme” and that he’s cooperating to undo the wrongs.

ZeroAqua and Puznak could not be separately reached Friday.

Then on Thursday, a biotech company — which said its antibody discovery was the first to enter human clinical trials for COVID-19 — filed patent infringement litigation in Delaware federal court. AbCellera Biologics Inc.’s suit claims Berkeley Lights Inc. is infringing several patents with its Beacon system, which is used for processes including antibody discovery.

Berkeley Lights didn’t immediately respond to a request for comment Friday.

Lastly, Microsoft said on June 6that a Virginia court has unsealed documents related to the company’s recent efforts to prevent alleged cybercriminals from stealing its users’ personal information through a “COVID-19 themed” phishing campaign.

According to an unsealed complaint, which features Lanham Act claims, two unnamed defendants allegedly used professional-seeming domains and tricked victims with emails “designed to look like they come from an employer.” The company said its digital crimes unit managed to block other alleged phishing attempts by the same defendants last year. Recently, however, the defendants have allegedly sent pandemic-related emails to millions of customers, meriting legal action, Microsoft said.

–Additional reporting by Daniel Siegal, Cara Salvatore, Khorri Atkinson, Ryan Davis, Hailey Konnath and Emma Whitford. Editing by Haylee Pearl.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

Sunoco Partners Marketing & Terminals L.P. v. Powder Springs Logistics, LLC et al

Case Number

1:17-cv-01390

Court

Delaware

Nature of Suit

Patent

Judge

Leonard P. Stark

Date Filed

October 04, 2017


Case Title

Ferring Pharmaceuticals Inc. et al v. Serenity Pharmaceuticals, LLC et al

Case Number

1:17-cv-09922

Court

New York Southern

Nature of Suit

Patent

Judge

Colleen McMahon

Date Filed

December 20, 2017


Case Title

MV3 Partners LLC v. Roku, Inc.

Case Number

6:18-cv-00308

Court

Texas Western

Nature of Suit

Patent

Judge

Alan D Albright

Date Filed

October 16, 2018


Case Title

Jeff Dunham v. Raymond Lei et al

Case Number

2:20-cv-03716

Court

California Central

Nature of Suit

Copyright

Judge

Dolly M. Gee

Date Filed

April 23, 2020


Case Title

3M COMPANY v. PUZNAK et al

Case Number

1:20-cv-01287

Court

Indiana Southern

Nature of Suit

840(Trademark)

Judge

Judge Richard L. Young

Date Filed

April 30, 2020


Case Title

Microsoft Corporation v. John Does 1-2 Controlling A Computer Network Thereby Injuring Plaintiff And Its Customers

Case Number

1:20-cv-00730

Court

Virginia Eastern

Nature of Suit

Trademark

Judge

Liam O’Grady

Date Filed

June 30, 2020


Case Title

AbCellera Biologics Inc. v. Berkeley Lights, Inc.

Case Number

1:20-cv-00931

Court

Delaware

Nature of Suit

Patent

Judge

Unassigned Judge

Date Filed

July 09, 2020

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