No Declaratory Judgment Jurisdiction Even After MedImmune

In Monsanto Company v. Syngenta Crop Protection, Inc., Judge Jackson dismissed Monsanto's declaratory judgment action for lack of subject matter jurisdiction. Monsanto introduced a new herbicide, PARRLAY, and in response Syngenta informed Monsanto that it had a patent on the use of two herbicides, and that it would be an infringement for Monsanto to market PARRLAY in conduction with Roundup. Monsanto brought a declaratory judgment action, and Syngenta moved to dismiss because Monsanto did not allege that it sold or had plans to sell PARRLAY.
Judge Jackson recognizes that following the Supreme Court's decision in MedImmune a plaintiff does not have to establish a reasonable apprehension of a lawsuit in order to establish an actual controversy between the parties. Judge Jackson examined SandDisk, Benitec Australia, Sony, and BridgeLux, and concluded that Monsanto did not establish a "substantial controversy of sufficient immediacy and reality to support declaratory judgment jurisdiction. Judge Jackson found that Syngenta's single letter to Monsanto does not establish a course of conduct that shows a perparedness and willingness to enforce its patent rights. Syngenta did not provide a claim construction or analysis, or demand royalties. Judge Jackson noted that Monsanto would not be a direct infringer of the patent, but at most an inducer of infringement. Judge Jackson noted that to prove inducement, the patentee has to prove direct infringement and that the alleged infringer knowingly induced infringement and possessed specific intent to encourage another's infringement. Monsanto provided the declaration of an employee that he "understands" that Sygenta believes that farmers will mix Monsanto's herbicides, but Judge Jackson did not find this enough to satisfy MedImmune's immediacy and reality requirement. Monsanto also argued that it planned to introduce another herbicide, but since this was post-filing, it was not relevant to establishing a case or controversy when the action was filed.

Monsanto Company v. Woods

On January 29, 2008, S. Christian Mullgardt, II of Husch and Eppenberger, LLC filed a patent infringement suit on behalf of Monsanto Company and Mondanto Technology, LLC against Woods: 4:08-CV-000137-CEJ

Cowboy Boyd's, LLC v. Boyd Coffee Company

On January 28, 2008, Annette P. Heller filed a trademark infringement action on behalf of Cowboy Boyd's, LLC against Boyd Coffee Company: 4:08-cv-00129-JCH.

Failure to Disclose Internal Notes With More Details About Poster Presentation was Material and Intent to Deceive was Inferred

Judge Weber's decision that Bayer's patents were unenforceable was affirmed by the Court of Appeals for the Federal Circuit in Monsanto Co. v. Bayer Bioscience N.V., [2007-1109](January 25, 2008)[GAJARSA, Bryson, Dyk] The Federal Circuit affirmed the district court’s conclusion that U.S. Patent No.5,545,565 is unenforceable for inequitable conduct and hold that the district court had jurisdiction to declare U.S. Patent Nos. 5,767,372, 6,107,546, and 5,254,799. Because the Federal Circuit affirmed the district court’s holding that the ’565 patent is unenforceable for inequitable conduct, it did not reach the other issues raised by Bayer relating to the jury findings of invalidity and non-infringement of the patent.
BRIEF: The district court initially granted summary judgment to Monsanto, holding that all four patents were unenforceable due to inequitable conduct, that certain patent claims were invalid, and that the ’565 patent was not infringed. The Federal Circuit reversed the trial court’s claim construction, and vacated the unenforceability and invalidity judgments. On remand Bayer dropped all infringement claims, except for the '565 patent. A jury found the asserted claims of the ’565 patent not infringed and invalid for obviousness and prior invention by Monsanto, and after a bend trial the district court held all four patents unenforceable for inequitable conduct.LOF: The Federal Circuit reviews the district court’s findings on the threshold issues of materiality and intent for clear error. The ultimate decision on inequitable conduct is reviewed for abuse of discretion. To hold a patent unenforceable for inequitable conduct, a district court must find by clear and convincing evidence that a patent applicant breached its duty of candor and good faith to the United States Patent and Trademark Office by failing to disclose material information, or submitting false material information, with an intent to deceive the PTO. Although Bayer disclosed the Barnes Abstract during patent prosecution, it did not disclose the notes taken by one of its employees, Dr. Celestina Mariani, regarding the Barnes Poster, to which the abstract was in reference, nor the information contained in the notes. Information is material for the purposes of an inequitable conduct determination if "‘a reasonable examiner would have considered such [information] important in deciding whether to allow the parent application.’" Based on Mariani’s testimony, the district court found it "very obvious" that the poster notes would stand in "sharp contradiction" to Bayer’s argument before the patent examiner, in which Bayer argued that the construct described in the Barnes Abstract was non-toxic and non-enabled. The Federal Circuit agreed that Mariani's notes were material, but said that did not end the inquiry. There also had to be evidence of intent to deceive. Direct evidence of intent to deceive is not necessary, but may be inferred from the surrounding circumstances. The Federal Circuit has held that absent a credible reason for withholding the information, “[i]ntent may be inferred where a patent applicant knew, or should have known, that withheld information would be material to the PTO’s consideration of the patent application.”As to Bayer's contention that the district court lacked jurisdiction over the patents no longer in suit, the Federal Circuit observed "The parties do not dispute that the district court’s jurisdiction to rule on attorney fees encompassed the jurisdiction to make findings of inequitable conduct regarding all four patents." The Federal Circuit held that a district court’s jurisdiction under § 285 to determine whether there was inequitable conduct in the prosecution of patents that are otherwise no longer in suit confers on that court the jurisdiction to hold such patents unenforceable for inequitable conduct.

Digital Partners Incorporated v. DPI Inc.

On January 23, 2008, David A. Roodman of BRYAN CAVE LLP filed a trademark infringement claim on behalf of Digital Partners Incorporated against DPI Inc.: 4:08-cv-00108-CDP. Defendant DPI Inc. is being represented by Matthew A. Braunel of THOMPSON COBURN.

Interfood Holding, B.V. v. Rice et al

On January 18, 2008, Thomas Cummings of ARMSTRONG TEASDALE, LLP filed a trademark infringement suit on behalf of Interfood Holding, B.V. against Rice: 4:08-cv-00085-MLM

Opus Northwest Construction Corporation et al v. Opus Remodeling, L.L.C.

On January 17, 2008, Jeffrey H. Kass of ARMSTRONG TEASDALE, LLP filed a trademark infringement suit on behalf of Opus Northwest Construction Corporation and Opus Northwest, L.L.C. against Opus Remodeling, L.L.C.: 4:08-cv-00080-HEA.

Industrial Wire Products, Inc. v. Costco Wholesale Corporation

On January 16, 2008, Carl J. Geraci and David B.B. Helfry, of Helfrey and Neiers P.C., filed a patent infringement suit on behalf of Industrial Wire Products, Inc., against Costco Wholesale Corporation: 4:08-CV-00070-CAS

DND Communications, LLC v. 21 Publishing, LLC,

On January 22, 2008, Annette P. Heller filed a copyright infringment suit on behalf of DND Communications, LLC agaisnt 21 Publishing, LLC: 4:08-CV-00097-DJS

Agxplore International v. McDermott

On January 14, 2008, Sara E. Finan, Jeffrey H. Kass, and Andrew B. Mayfield of Armstrong, Teasdale, LLC filed a trademark infringement suit on behalf of Agxplore International against McDermott: 1:08-cv-00004-LMB

Monsanto Company v. LaValle

On January 10, 2008, Matthew R. Grant, S Charistian Mullgardt, II, and Joseph C. Orlet of Husch and Eppenberger, LLC, filed a patent infringement suit on behalf of Monsanto Company against LaValle. Civil Action No. 4:08-CV-00043-CDP

Warren Sign Company, Inc. v. Prios Signs, Inc.

On January 8, 2008, Patrick W. Keefe of Keefe and Keefe, P.C., filed a copyright infringement suit on behalf of Warren Sign Company, Inc., against Piros Signs, Inc., The Striler Group, Inc., and Eagle Bank and Trust Company of Missouri: 4:08-CV-00024-CEJ Piros Signs, Inc., is beign represented by Dutro E. Campbell, II of Husch and Eppenberger, LLC. The Striler Group, Inc., is being represented by John N. Borbonus, III, of King, Krehbiel, Hellmich & Borbonus LLC, and Eagle Bank and Trust Company of Missouri is being represnted by John M. Hessel, or Lewis and Rice.

Warren Sign Company, Inc. v. Johnnty Mac's Sporting Goods Stores, Inc.

On January 8, 2008, Patric W. Keefe of Keefe and Keefe filed a copyright infringement suit on behalf of Warren Sign Company against Johnny Mac's Sporting Goods Stores, Inc.: 4:08-CV-00025-JCH. Defendant Johnny Mac's Sporting Goods Stores, Inc. is beign represented by Nicholas B. Clifford, Jr., of Armstrong, Teasdale LLP.

Steadfast Capital Management LLC v. Steadfast Financial Services of Jefferson County LLC

On January 7, 2008, Matthew L. Cutler of HARNESS AND DICKEY filed a trademark infringement suit on behalf of Steadfast Capital Management LLC against Steadfast Financial Services of Jefferson County LLC: 4:08-CV-00018-RWS. Defendant Steadfast Financial Services of Jefferson County LLC is being represented by Marvin L. Lindmark, III BOBROFF AND HESSE

Chevron Intellectual Property LLC et al v. David L. Basler

On January 4, 2008, McPherson D. Moore, Ned W. Randle, and Scott A. Smith of POLSTER AND LIEDER filed a trademark infringement suit on behalf of Chevron Intellectual Property LLC and Chevron U.S.A. Inc. against David L. Basler.

Express Scripts, Inc. v. Liberty Express Scripts, Inc.

On January 4, 2008, David A. Roodman of BRYAN CAVE LLP filed a trademark infringement action on behalf of Express Scripts, Inc. against Liberty Express Scripts, Inc.: 4:08-CV-00010-CEJ. Defendant Liberty Express Scripts, Inc. is being represented by Kevin E. Myers of BAKER AND STERCHI, L.L.C.

Ken Behlmann Automotive Services, Inc. et al v. MJ Squared, L.L.C.

On January 2, 2008, Don V. Kelly of Gallop Johnson filed a trademark infringement suit on behalf of Behlmann Pre-Owned Centers, Inc. and Ken Behlmann Automotive Services, Inc. against MJ Squared LLC: 4:08-CV-00001-CEJ