By Partner Tom Dunlap
Patents are the last great legitimate monopoly. They give the holder twenty years of exclusivity in the market, to exclude others from making, using or selling the patented item and thus allowing a successful patent to help a company reap the rewards of inventive genius. Unfortunately there is a deeper reality to patent ownership. While the patent is presumed valid when it is granted, this does not stop competitors from entering the marketplace with a copy-cat infringing product. Generally the more commercially successful the product, the more likely another company will swoop in and make a market play, risking an infringement lawsuit in an effort to reap commercial rewards. These competitors hope that either the original patent owner will not have the funds or ability to pursue a lawsuit, or that the owner will be forced, due to the cost and time involved in patent cases, to settle for minimal compensation. This is where enforcement of a patent rights becomes a very important strategic decision.
This is the story of Bunch O Balloons, a product protected by numerous patents that has come up against the biggest and most well know copy-cat in the industry. The short story? Tinnus (individual inventor Josh Malone) invented the most successful toy in the world (2016-2017), and licensed it to New Zealand founded, family run toy company, ZURU. Before they could get a commercial version to the market, Telebrands swooped in, copied the product, and released its famous infomercial style blitz on the American public. In the face of this opposition, ZURU stepped up with Tinnus and sued Telebrands for patent infringement, with the help of Dunlap Bennett & Ludwig PLLC. Over the course of three years and four lawsuits, each of which involved a new effort by Telebrands to copy Josh Malone’s invention, Dunlap Bennett & Ludwig won three preliminary injunctions, including the Federal Circuit Appeal of the first suit, most recently won a mandamus filed by Telebrands, culminating in a six day jury trial in the Eastern District of Texas Federal District Court (EDTX), November 2017 led by Thomas Dunlap and Cortland Putbrese, resulting in a $12,317,500 verdict against Telebrands and a number of retailers (Sears, Kroeger, Bed Bath & Beyond and others) in favor of Tinnus and Zuru. This verdict will likely include a doubling or trebling of the final verdict amount as the jury found the infringement was willful. Patent litigation includes legal actions to protect patents against infringement, and may result in monetary compensation or an injunction against the product, preventing it from further sale or profits.
When a competitor makes, uses, or sells a patented invention without the permission of the patent owner, Dunlap Bennett & Ludwig can provide a successful strategy for companies large and small. With a patent litigation team of more than 15 lawyers at a firm of more than 60 lawyers, we go toe to toe with the biggest and best known firms in the United States (in this last case (Tinnus et al. v. Telebrands et al., case number 6:16-cv-00033, EDTX) Boise Schiller & Flexner). Contact us today to discuss your companies’ patent needs. Email firstname.lastname@example.org or call us at 703-777-7319.