Conditioned Ocular Enhancement, Inc. v. Bonaventura, 05 C 3153, 2006 WL 2982140 (N.D. Ill. Oct. 17, 2006) (Zagel, J.).
Judge Zagel held that Illinois’s absolute litigation privilege, which protects communications leading up to a litigation, did not protect a patentholder’s cease and desist letters because, in addition to federal preemption issues, the Illinois privilege is limited to defamation and false light claims. Plaintiff alleged that defendant was practicing its patented vision training services. In addition to filing suit, plaintiff also sent certain of defendant’s customers cease and desist letters warning that defendant was unlawfully using plaintiff’s patented vision training methods. Defendant filed several Lanham Act and tortious interference counterclaims alleging that plaintiff’s cease and desist letters were sent in bad faith.
In addition to its absolute litigation privilege argument, plaintiff also sought dismissal of the counterclaims arguing that its patent was presumed valid and that it had a right to enforce it. But because the counterclaims alleged that the letters were sent in bad faith, the Court denied the motion to dismiss. Parties have a right to enforce their patents, but not to use false statements in doing so.
Judge Zagel’s opinion also provides a good road map for which Lanham Act and tortious interference claims require Rule 9(b) heightened pleading.