Fleming v. Brown

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Richard Max Fleming, M.D., J.D. (Pro Se)
  • Defendant: Chad A. Brown
  • Plaintiff’s Counsel: Pro Se
• Case Identification: 1:17-cv-01141, D.D.C., 06/08/2017
• Venue Allegations: The complaint asserts that the U.S. District Court for the District of Columbia is the appropriate jurisdiction and venue for the action.
• Core Dispute: Plaintiff alleges that Defendant has infringed a patent for a medical diagnostic method by falsely representing himself as the inventor and promoting the patented method as his own.
• Technical Context: The technology concerns a quantitative medical imaging method for diagnosing cardiac and vascular disease by comparing isotope emissions at different time points under a consistent physiological state.
• Key Procedural History: The complaint notes that a cease and desist letter was sent to the Defendant on June 5, 2017, three days prior to the filing of the lawsuit, establishing alleged pre-suit notice.

Case Timeline

II. Technology and Patent(s)-in-Suit Analysis

U.S. Patent No. 9,566,037 - "Fleming Method for Tissue and Vascular Differentiation and Metabolism (FMTVDM) Using Same State Single or Sequential Quantification Comparisons"

• Patent Identification: U.S. Patent No. 9,566,037, “Fleming Method for Tissue and Vascular Differentiation and Metabolism (FMTVDM) Using Same State Single or Sequential Quantification Comparisons,” issued February 14, 2017.

The Invention Explained

• Problem Addressed: The patent’s background section describes conventional nuclear cardiac imaging studies as having a high (35%) error rate, in part because they compare images taken under different physiological conditions ("rest" versus "stress") ('037 Patent, col. 1:46-57). This approach can fail to accurately detect certain types of ischemic vascular disease (IVD).
• The Patented Solution: The invention is a method that improves diagnostic accuracy by comparing two sets of images taken under the same state of physiological stress but at different times (e.g., five minutes and sixty minutes) after the injection of a radiopharmaceutical like sestamibi ('037 Patent, Abstract; col. 2:57-63). By quantitatively analyzing the change in isotope concentration over time ("wash-in" or "washout") in specific regions of interest, the method claims to better differentiate between healthy tissue, tissue damaged by narrowed arteries, and tissue affected by vulnerable inflammatory plaques ('037 Patent, col. 3:9-26).
• Technical Importance: The method purports to offer a more accurate diagnostic tool for cardiac disease that can also reduce total patient imaging time and radiation exposure ('037 Patent, Abstract).

Key Claims at a Glance

• The complaint appears to assert the patent generally, which contains one independent claim.
• The essential elements of independent Claim 1 are:
  • Inducing regional blood flow differences in a subject via a pharmacologic agent or physiologic change.
  • Injecting an isotope into the subject.
  • Acquiring multiple images with a computer at multiple time-points within a determined region of interest (ROI).
  • Measuring the radioactive emissions from the acquired images.
  • Creating a data array of the emissions at each time-point.
  • Calculating the percent gain or loss of radioactive emissions between time-points.
  • Comparing the calculated change to the expected change from natural isotope decay.
  • Determining a degree of disease based on this comparison, where the disease level is a non-linear function of the "gain, washin, or loss, washout" of the isotope.

III. The Accused Instrumentality

Product Identification

The complaint does not accuse a specific product or service of infringement. Instead, the accused instrumentality is the Defendant's alleged conduct of falsely representing himself as the inventor of the patented method ('037 Patent, col. 13:14-14:41; Compl. p. 6).

Functionality and Market Context

The complaint alleges that the Defendant, as CEO of "OMNIFIC - BREAST, LLC; Non-Invasive Breast Cancer Diagnosis," has used internet postings and other communications to claim he developed the patented test and that the '037 Patent was issued to him (Compl. p. 6). A screenshot from a professional networking site included in the complaint shows a profile for the Defendant promoting "B.E.S.T. Test Experience," a term related to Plaintiff's copyrighted work (Compl. p. 6). The complaint alleges these actions are intended to build a business around the patented technology, with Defendant having "boasted that the implementation of FMTVDM/B.E.S.T. imaging will yield him tens of millions of dollars" (Compl. p. 8).

IV. Analysis of Infringement Allegations

The complaint’s infringement theory does not follow a conventional structure of mapping elements of a patent claim to features of an accused product. Rather, it centers on the allegation that the Defendant is falsely holding himself out as the inventor of the patented method. The complaint alleges that Defendant has "lead people to believe that he, Mr. Brown developed the test and that it was issued to him" and "posted that the patent was in fact issued to him" (Compl. p. 6).

A key piece of visual evidence provided is a screenshot of a LinkedIn page titled "Fleming method for tissue and vascular differentiation and metabolism..." which lists "United States 9566037" and explicitly names "Chad Brown" under the heading "Inventors" (Compl. p. 7). This screenshot directly supports the complaint's core factual allegation of misattribution. Because the infringement allegation is not based on the technical performance of the claimed method steps, a claim chart summary is not applicable.

Identified Points of Contention

• Legal Questions: The central issue appears to be legal rather than technical. A primary question for the court will be whether Defendant's alleged conduct of falsely claiming inventorship constitutes patent infringement under 35 U.S.C. § 271. The complaint does not specify which subsection of the statute is invoked, raising the question of whether this conduct can be construed as an infringing "use," "offer to sell," or inducement of the patented method.
• Factual Questions: A key factual question will be what specific actions the Defendant took to commercialize or practice the patented method beyond the alleged online misrepresentations, and whether those actions constitute direct or indirect infringement of Claim 1.

V. Key Claim Terms for Construction

The complaint does not provide sufficient detail for an analysis of claim construction. The dispute as framed centers on the Defendant’s alleged false attribution of inventorship, not on a technical disagreement over the scope or meaning of any specific term within Claim 1.

VI. Other Allegations

Indirect Infringement

The complaint does not explicitly plead a claim for indirect infringement. However, the allegations that Defendant is promoting the patented method as "his test" through his company could be interpreted as an attempt to induce third parties, such as customers or medical professionals, to perform the patented method, potentially raising questions of inducement under 35 U.S.C. § 271(b) (Compl. p. 6).

Willful Infringement

The complaint alleges that Plaintiff sent, and Defendant received, a cease and desist letter on June 5, 2017 (Compl. p. 7). This allegation of pre-suit notice may be used to support a claim for willful infringement for any infringing acts that occurred after this date.

VII. Analyst’s Conclusion: Key Questions for the Case

• A core issue will be one of legal classification: Can the alleged act of falsely holding oneself out as the inventor of a patent, as evidenced by online profiles, constitute patent infringement under 35 U.S.C. § 271, or is this conduct more properly addressed under other legal theories such as unfair competition or false advertising?
• A second key question will be one of damages: If infringement is found, the case will raise the question of how to measure damages for harm based on misattribution of inventorship and reputational injury, as distinct from the traditional reasonable royalty or lost profits analysis tied to the making, using, or selling of a patented invention.