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Fetured Job Of the Day
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Corporate/Securities Attorney with 3-6 years of capital markets experience

Los Angeles office of our client seeks corporate and securities attorn...
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Date Posted: May 24, 2018

Employer:   BCG Attorney Search

Salary: Not Specified


600 South Avenue West, 
Westfield, New Jersey - 07090



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A three-judge panel of the United States Court of Appeals for the Third Circuit, based in Philadelphia, has issued a decision in favor of Vertical Pharmaceuticals, Inc., a distributor of prescription vitamin products sold under the trademark CORVITE. The panel affirmed an earlier decision by a federal judge in Newark, New Jersey, who had denied an injunction requested by Everett Laboratories, Inc., which had been asserting trademark infringement relating to Everett's STROVITE products.

In January 2006, U.S. Senior District Judge Dickinson Debevoise had denied Everett's request for a preliminary injunction, holding that Everett had not established a likelihood of success in demonstrating confusing similarity between STROVITE and CORVITE. In a June 13, 2007, opinion by Circuit Judge Marjorie Rendell, the Third Circuit agreed with Judge Debevoise's decision and suggested that Judge Debevoise had not sufficiently appreciated the weakness of Everett's case. The panel's decision expressed the view that Judge Debevoise had "overstated the similarity of the marks," because the common element of the two competing trademarks (STROVITE and CORVITE) was the suffix "-vite," which is a common descriptive term having little independent force or distinctiveness.

While the Third Circuit's decision did not result in dismissal of the suit, Charles Kennedy of Lerner, David, Littenberg, Krumholz & Mentlik, LLP of Westfield, New Jersey, lead counsel for Vertical, suggested that the Third Circuit's decision may lead to the suit being dropped. As Kennedy noted, "We think Everett should think long and hard about pursuing this case in the face of a Third Circuit decision that is extremely negative to Everett's position."

In a move that could mark the resolution of a patent infringement suit over hip implant technology that has lasted almost five years, a court has granted summary judgment to a subsidiary of orthopedics company Stryker Corp.

U.S. District Judge Allen Sharp on Wednesday signed off on an order granting summary judgment of noninfringement to plaintiff Howmedica Osteonics Corp., rejecting a summary judgment motion by Tranquil Prospects Ltd.

Judge Sharp’s ruling could be appealed, but at the district court level, the case is essentially over, said William L. Mentlik, managing partner of the firm Lerner, David, Littenberg, Krumholz & Mentlik, LLP and lead counsel for Howmedica.

“We feel pretty good about it,” Mentlik said of the decision, adding that he was confident that the ruling would hold up if appealed.

Judge Sharp held that Tranquil’s assertions of infringement, which were backed by an unsworn expert declaration and “virtual surgery” geared toward demonstrating that implanting Howmedica’s stem implants would infringe on Tranquil’s patented methods, weren’t up to snuff.

“This curt declines the apparent invitation to engage in a fishing expedition and issue a catchall opinion,” Judge Sharp wrote, after noting that Tranquil’s expert failed to identify specifically which Howmedica prostheses infringed the patents-in-suit.

Judge Sharp goes on to quote from a Seventh Circuit decision from 1991, in a case captioned United States v. Dunkel: “A skeletal ‘argument,’ really nothing more than an assertion, does not preserve a claim…Judges are not like pigs, hunting for truffles buried in briefs.”

Howmedica asked the court for summary judgment of noninfringement of four claims of the ‘985 patent and one claim of the ‘214 patent, while Tranquil sought summary judgment of direct literal infringement of four claims of the‘985 patent. Tranquil also argued that it was entitled to summary judgment that the asserted claims of the ‘985 patent were not anticipated by putative prior art.

In May 2002, Howmedica filed suit seeking a declaratory judgment of noninfringement and invalidity with respect to two patents owned by British Virgin Island-based Tranquil Prospects. Tranquil prospects countersued for infringement.

At issue in the suit are U.S. Patent No .,636,214 and 5,222,985—both of which are entitled “Implantation of Articulating Joint Prosthesis.”

Tranquil contended that a variety of Howmedica’s “hip stems,” which connect the femur to the hip socket, encroached on its intellectual property. More than 20 Howmedica’s hip stems, including the “Omnifit” and “Strata, infringed, Tranquil alleged.

The case stretched on as long as it did in part because of an appeal by Tranquil, which followed the district court’s January 2004 finding that the asserted claims of the ‘985 and ‘214 patents were invalid. The U.S. Court of Appealsfor the Federal Circuit breathed new life into the case in 2005, reversing the lower court’s ruling that the Tranquil’s patent claims were indefinite and invalid, vacating the lower court’s ruling that the ‘985 patent was not infringed because that ruling was based on an “erroneous claim construction,” and remanding the case back to the northern Indiana district court.

Attorneys for Tranquil Prospects Ltd. could not be immediately reached for comment.

Tranquil is represented in this matter by Stadheim & Grear Ltd. and Hunt Suedhoff Kalamaros LLP.

Howmedica is represented by Lerner, David, Littenberg, Krumholz & Mentlik, LLP.

The case is Howmedica Osteonics Corp. v. Tranquil Prospects Ltd., case number 02-321,in the U.S. District Court for the Northern District of Indiana.

Primary Practice Areas

Corporate,Intellectual Property,Real Estate,Litigation,Labor & Employment,Clearance Opinions, Patent Procurement in The U.S, International Patent Procurement, Acquisition Risk Management, Ip Asset Management, Copyrights, Licensing, Litigation, Trademark and Trade Dress Procurement in The U.S, International Trademark Procurement.

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