Judge Young, who has also presided over the case that inspired the Jodie Foster movie The Accused and the Richard Reid shoe bomber case, agreed that the safe harbor provision did not apply and ruled in May 2007 that Innova had indeed infringed on the patent. He issued a permanent injunction prohibiting Innova from “making, using, selling, offering, for sale or importing into or exporting out of the United States” the OSA.
When Innova appealed to the United States Court of Court of Appeals for the Federal Circuit (CAFC), that court agreed with Judge Young that safe harbor did not apply and, in August 2008, upheld the injunction, setting a new legal precedent. The case drew a lot of attention from the legal community, and the legal journals and magazines devoted a significant amount of coverage to the ruling, to the extent that outside the pharmaceutical industry, “Proveris” is more likely a reference to the legal case than to the company by that name. “That was about the last thing we expected,” Farina marvels, “You know, two little companies battling out a patent infringement case, to find out that this particular angle has never been brought up before.”
According to Farina, Proveris has evidence that Innova has continued to market its spray analyzer despite the injunction, not on its own web site but on other pharmaceutical web sites and under several different names. In the spring of 2010, Proveris filed a motion for contempt against Innova, and in September of that year, Judge Young issued a finding of contempt.
Farina says that he couldn’t believe that Innova would risk violating the injunction: “To be found in contempt of a federal court order just doesn’t happen because people are quite scared of the penalty that can come from that; the penalty’s a huge deterrent, and that’s why there’s very little precedent for contemptuous activity related to a permanent injunction imposed by a federal court. So the fact that they’ve been found in contempt of court is quite remarkable.” According to Farina, the judge has said in open court that if he found Innova in contempt that his actions would be “swift” and “devastating.”
Innova quickly appealed the contempt finding but was rebuffed by the appeals court on the grounds that Judge Young has not yet completed his ruling; an appeal of the finding, the court said, is premature until sanctions have been issued. Deciding not to wait until after that hearing to take the offensive, Innova filed a patent reexamination request with the US Patent and Trademark Office (USPTO) in March 2011.
An InnovaSystems statement about the patent reexamination clarifies the company’s belief that “the patent claims asserted by Proveris against InnovaSystems are invalid” and that the reexamination “will put an end to Proveris’ apparent goal of unfairly monopolizing the spray testing industry.” “Unfortunately,” the statement says, “Proveris continues to allege that the 400 patent provides protection for little more than the simple combination of a light that provides illumination and a camera that records a sequence of images – begging the question: where is the invention?” From Innova’s point of view, it says, Proveris is using the patent “as a false barrier to competition in this industry.”
