Representative Cases

Amazon.com, Inc. and Vera Bradley Designs, Inc. v. Zhang, et al (2018): 2:18-cv-352

Elliott represents two Houston companies and their owner as defendants in an action field in federal district court in Seattle, Washington. The case was brought by Amazon.com and Vera Bradley Designs, Inc., and involves allegations of trademark and copyright infringement. The plaintiffs are pursuing a theory that defendants have sold “counterfeit” goods imported from China. The defendants will present evidence the goods are not “counterfeit” at all but are genuine “gray market” Vera Bradley products made in Vera Bradley’s own factories in China.

Homevestors of America Inc. v. Big State Home Buyers, LLC and Brian Spitz (2018)

Elliott represents a Houston company and its owner in a breach of contract action filed in state court in Dallas involving the use of internet “search terms” and trademarks. Injunctive relief and damages are being sought.

Corydoras Technologies, LLC v. Samsung Electronics Co., Ltd. et. al (2015) 2:15-cv-00432

Mr. Polasek represented Corydoras in a patent infringement action, charging the defendants with infringement of six patents involving mobile phone technology. The parties resolved the case after the claim construction hearing.

Jones v. American Council on Exercise (2015): 4:15-cv-03270

On behalf of Dr. Michael Jones, the firm filed a trademark infringement lawsuit in federal district court in Houston against one of the world’s largest fitness companies. The complaint included allegations of infringement under the federal Lanham Act and the Texas common law. The trademark at issue was the unregistered name of the plaintiff’s business, which had been in use for over 20 years. After successfully defeating a motion for summary judgment filed by the defendant the parties successfully mediated the case and reached a confidential settlement agreement.

Conlin v. Solarcraft, Inc. (2014): 4:14-cv-01852

The firm represented Solarcraft, Inc., a company engaged in a dispute over the validity, enforceability, and ownership of four patents. During discovery, and before any depositions were taken, the firm strategically filed and won a motion for partial summary judgment resulting in a dismissal of all claims for invalidity and unenforceability. Shortly after, the parties reached a confidential settlement.

LDARtools, Inc. v. InspectionLogic Corporation (2014): 4:13-cv-02963

Elliott and his firm represented the plaintiff in a patent infringement action, which charged the defendant with infringement of five patents involving software used in the monitoring of toxic emissions at chemical plants and refineries. Shortly after the case was filed the defendant filed a request for inter partes review of several of the patents-in-suit. The firm defended the patent owner in the IPR proceeding. During the discovery and claim construction, the parties successfully reached a confidential settlement resolving all issues.

Adrain v. American Honda Motor Co., Inc. et al (2014): 2:14-cv-00936

Mr. Polasek represented Adrain in a series of patent litigations asserting infringement of US Patent 5,831,669 related to image recognition technology against numerous companies. These litigations were filed in the Eastern District of Texas between 2008 and 2016. One of the cases, Adrain v. Vigilant Video, et al., (2:10-cv-173) involved license plate recognition systems. Mr. Polasek, as lead counsel, handled all aspects of discovery, motion practices, and briefed and argued the claim construction positions of Adrain at the Markman hearing. The Court subsequently construed the patent claims. The case settled shortly before trial. In another case, Adrain v. American Honda Motor Co., Inc. et. al., (2:14-cv-00936), the Adrain patent was asserted against Honda’s forward collision warning systems. Mr. Polasek handled this case from start to finish, briefing and arguing the claim construction issues. The Court issued a claim construction ruling in that case. That case settled shortly after the Court’s claim construction opinion.

New Tech Engineering Limited Partnership v. NewTech MWD Services, LLC (2013): 4:13-cv-3604

Elliott successfully represented one of the nation’s largest oil and gas engineering consulting companies in a trademark infringement case against a Delaware-based oilfield services company. After a five-year legal battle, Elliott and his co-counsel went to trial and secured a jury verdict in their client’s favor. Elliott had filed the action in federal district court in Houston on behalf of his client New Tech Engineering Limited Partnership, alleging the defendant’s use of the phrase “New Tech” in the defendant’s company name, website, and advertising was an infringement. At trial, Elliott presented evidence his client had used the phrase “New Tech” as a nickname for almost two decades which gave it “secondary meaning” in the oil and gas industry. He proved that the defendant’s use of “New Tech” created a likelihood of confusion even though the two companies provided different services and did not compete. Not only were there instances of actual confusion but the two companies shared some of the same customers.

Western Falcon, Inc. et al. v. Moore Rod & Pipe, LLC et al. (2013): 4:13-cv-02963

The firm successfully secured a preliminary injunction on behalf of the patent holder plaintiff. The case involved patented methods for using polymer liners in tubulars used in oil and gas production wells. After the case was filed, the firm on behalf of the plaintiff filed a motion for preliminary injunction. The defendant opposed the motion and filed a request for inter partes review and also for a stay of the case. At a hearing on the motion to stay the court agreed to enter a preliminary injunction prohibiting the defendant from engaging in certain marketing activities pending the termination of the inter partes review. Ultimately, the parties reached a settlement agreement disposing of all issues.

Carnley et al. v. Culom Incorporated et al. (2012): 4:12-cv-01887

In a quarrel over trademarks, Mr. Elliott represented the defendant owner of a successful Cajun food restaurant operating in downtown Houston. The plaintiff was a former manager of the restaurant, who had secretly filed an application for federal registration of the name of the restaurant. She filed a lawsuit in state court requesting a temporary injunction. On behalf of the defendant, Elliott immediately removed the case to federal district court, thus effectively ending the threat of an injunction. Shortly thereafter, the parties negotiated a prompt settlement.

Matthew Phung v. ThomasKelly Software Associates L.P. et al (2012): 2:12-cv-02692

Mr. Elliott represented the defendant in a trademark case filed in the Central District of California against his client, a Houston company. After filing an answer defendant successfully settled the case on favorable terms.

Ivan G. Rice v. United States (2011): 1:05-cv-00187

In 2005, Mr. Elliott filed an action against the United States government in the Court of Federal Claims under 28 U.S.C. 1498, for unauthorized use of a patented twin spool gas turbine power system. After six years of litigation, Mr. Elliott successfully mediated the case with the government, resulting in settlement and entry of a final judgment.

LunarEye, Inc. v. Enfora, Inc., et al (2010): 9:10-CV-00119-RC

Mr. Elliott represented Globalstar, Inc. and Spot, LLC, defending against a patent infringement action brought in the Eastern District of Texas. The patented technology involved location reporting utilizing GPS systems. After presenting its invalidity contentions, the parties reached a confidential settlement.

Gaits of Gold, Inc. and Brenda Imus v. Circle Y Saddles, Inc.: (2010) 4:10-cv-03785

Mr. Polasek represented the defendant, a company that makes fine leather goods such as horse saddles, accused of trademark and tradename infringement, dilution, and unfair competition in the Southern District of Texas. Mr. Polasek and his team, on behalf of the defendant, quickly moved for dismissal of the case pursuant to Rule 12(b)(6). The Court granted the motion, dismissing the case based on the doctrine of judicial estoppel.

Microbes, Inc. v. The Espoma Company et al. (2009): 2:09-cv-00237-TJW

Mr. Elliott represented the patent owner in a case involving charges of infringement of a patent covering fertilizer compositions containing specific microbial formulations. Following discovery and a highly favorable claim construction order, the case was settled.

Levine v. Samsung Telecommunications America, LLC et. al. (2009) 2:09-cv-00372

Mr. Polasek represented the patent owner in two cases filed in the Eastern District of Texas, charging multiple phone manufacturers and cellular service providers with infringement of two patents related to cellular phone technology. The case was vigorously litigated through fact and expert discovery. Mr. Polasek briefed and argued the claim construction positions of the plaintiff, and the Court issued a claim construction ruling.

Tune Hunter, Inc. v. Samsung Telecommunications America, LLC, et al. (2009) 2:09-cv-00148

Mr. Polasek’s client asserted its patent covering music identification technology against cell phone manufacturers, cellular service provides and digital music providers in the Eastern District of Texas. Mr. Polasek successfully defeated the defendants’ motion to dismiss.

Hot-Hed, Inc. et al. v. Safehouse Habitats (Scotland), Ltd. (2008): Cause No. 2006-26781

In 2006, Mr. Elliott represented a small Scottish company sued for trademark infringement in Houston. Following a 3-week trial, a jury returned a verdict in favor of the defendant, finding that the alleged trademark was generic and therefore not valid. The court also awarded the Scottish company its attorney fees. The judgment was affirmed on appeal.

York Caskets v. Ellis Melton, Inc., et al. (2006): 4:06-cv-00262

Mr. Elliott represented defendants as lead counsel in a case where the plaintiff charged the defendants with trademark and trade dress infringement under the federal Lanham Act and Texas state law. Elliott filed a motion for partial summary judgment to render unenforceable a "best efforts clause" in the contract at issue. The motion was granted. Following discovery and before trial the case was settled.

Mobili Malerba SNC, d/b/a/ Malerba Furniture, and Cantoni, LP v. Total Furniture, LLC (2006) 4:06-cv-00916

Mr. Polasek defended the defendant in a case filed in the Southern District of Texas against claims of false designation of origin and false representation, trade dress infringement, trademark infringement and unfair competition related to furniture being sold by the defendant. After numerous hearings with the Court, the parties resolved the matter.

Source, Inc. v. American Express Company (2005): 2:05-cv-00354-TJW-CE

Mr. Elliott represented the plaintiff Source, Inc. which was the owner of three patents covering aspects of technology relating to consumer cash value methods and systems. Following a successful claim construction, after the close of discovery but before trial, the parties reached a confidential settlement agreement.

Jimmy J. Fulks v. Brunswick Corporation, et. al. (2004) 2:04-cv-00382

Mr. Polasek and his firm represented the plaintiff, asserting two patents related to boat hull and stringer design in a suit filed in the Eastern District of Texas. The case involved assertions of patent infringement and ancillary bankruptcy proceedings. The parties entered into a confidential settlement agreement.

Carson v. Dynegy, Inc. (2003): 344 F.3d 446 (5th Cir)

Mr. Elliott represented the plaintiff William Carson at the trial court level for copyright infringement involving power trading software that he had created while employed by Dynegy. Among the issues was whether Carson’s claims were subject to equitable estoppel and whether he created the software within the scope of his employment and thus qualified as a work-made-for-hire. After a lower court ruling, the case was appealed and later settled.

Morris Reese v. Aastra Technologies Limited, et. al. (2003) 2:03-cv-00267

Mr. Polasek and his law firm represented the patent owner in case filed in the Eastern District of Texas against cellular service providers and mobile phone manufacturers involving a patent related to caller ID. The parties entered into confidential settlements.

Irwin Industrial Tool Company v. Steven J. Orosz, Jr. and Charles F. Schroeder, (2003) 03CV-1738.

Mr. Polasek and his firm defended the patent owners in a declaratory judgment action filed against them in the Northern District of Illinois by a large tool company seeking a declaration that it did not infringe defendants’ patent covering laser levels technology. Mr. Polasek lead the team in obtaining a successful claim construction, and ultimately the parties entered into a confidential settlement agreement.

Loewenthal v. PGS Ocean Bottom Seismic, Inc. et al. (2000): 4:99-CV-01886

Mr. Elliott represented an inventor in a patent infringement case involving seismic processing. After the court denied numerous defendant motions for summary judgment, the case went to mediation, resulting in a confidential settlement.

Ivan G. Rice v. ABB (1998): 1:97-cv-00246

Mr. Elliott represented a prolific inventor, Ivan G. Rice, in a patent case against Asea Brown Boveri in which the central issue was whether a license agreement had been breached. The dispute with ABB concerned European Patent No. 20594 for a reheat gas turbine. After discovery and an arbitration hearing before a panel of three arbitators, but before a decision, the parties reached a settlement.

Riles v. Amerada Hess Corporation (1998) G-98-013

Mr. Polasek was part of the legal team representing the owner of a patent covering technology related to the installation of offshore oil drilling platforms in a suit filed in the Southern District of Texas. The defendant moved to dismiss, asserting that the patent owner’s remedy was to sue the U.S. government pursuant to 28 U.S.C. § 1498. Mr. Polasek researched and drafted the briefing in opposition to Defendant’s motion. The Court denied defendant’s motion to dismiss.

CICCorp Inc. v. Neodyme Technologies, et al. (1997) (Houston): 4:97-cv-04013

Mr. Elliott represented CICCorp Inc. in federal district court in Houston, and filed a successful opposition to a motion for summary judgment filed by the Defendant. The case ultimately settled.

King v. Milbauer et al. (1996): 4:95-cv-03754

Mr. Elliott represented the defendants who had been sued for copyright infringement based on the design of a 3-story townhome. Defendants alleged that because Mr. Milbauer had actively participated in the design of the townhome, he qualified as a joint author notwithstanding that the architect he had hired had secretly registered the copyrights for the drawings and the townhome itself. This was the first case in the Southern District of Texas in which the Architectural Protection Act of the U.S. copyright law had been litigated. Just before trial the parties settled.

Ivan G. Rice v. General Electric (1996): 4:94-cv-00007

Mr. Elliott represented the patent owner in Ivan G. Rice v. General Electric in federal district court in Houston, Texas. Mr. Rice charged General Electric with willful infringement of various patents covering aspects of the blades of steam turbines. The case was ultimately resolved following mediation.

Bright Star Designs v. J. Kinderman & Sons (1996): 4:96-cv-00498-TCK

Mr. Elliott represented the plaintiff in a case covering framed sculptures. The plaintiff alleged that the defendant had deliberately copied certain 3-dimensional framed sculptures that were protected trade dress under the federal Lanham Act. After defeating the defendant’s motion for summary judgment, the case was resolved via a confidential settlement agreement.

Baker v. Jantz-Femco, Inc. (1996): 3:96-cv-00128-J

Mr. Elliott represented one of the defendants in a patent infringement case filed in the Northern District of Texas. The patent covered goose-necked trailers. After limited discovery Mr. Elliott filed a motion for summary judgment. Before the court ruled on the motion, the parties participated in mediation resulting in settlement.

Carbo Ceramics, et al v. Norton-Alcoa Proppants et al. (1989): 3:89-cv-03075-X

Mr. Elliott was part of the team representing the primary defendant in Carbo Ceramics, et al v. Norton-Alcoa Proppants et al., a patent infringement case involving a patented composition of calcined bauxite proppants. The case ultimately settled.

Phillips Chemical Co. v. Hoechst Celanese and Kureha Chemical Co. (1988)

Mr. Elliott was part of the team representing one of the defendants in a case involving alleged infringement of two basic patents for polyphenylene sulfide (PPS). After the defendants filed a declaratory judgment action in the federal district court in Delaware, the Plaintiff filed a complaint in the International Trade Commission alleging infringement of the patents. Mr. Elliott handled depositions, motions, and discovery in the ITC. Shortly before the ITC hearing, the parties reached a settlement.

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