Bloomberg News

Smith & Nephew, Hurtigruten, Google: Intellectual Property

June 21, 2011

(This is a daily report on global news about patents, trademarks, copyright and other intellectual property topics. Updates with diagnostic medical test patents in top section.)

June 21 (Bloomberg) -- Smith & Nephew Plc, Europe’s largest maker of shoulder and knee implants, lost in Arthrex Inc.’s appeal of a $4.7 million patent-infringement award.

The U.S. Court of Appeals for the Federal Circuit in Washington yesterday overturned the February 2010 jury verdict that had found Arthrex’s RetroButton device to fix a graft to a bone infringed a Smith & Nephew patent. Smith & Nephew “presented insufficient evidence at trial to support” an infringement finding, the appeals court said in the decision posted on the court’s website.

The dispute between London-based Smith & Nephew and Naples, Florida-based Arthrex is over the attachment of the grafts used to replace the anterior cruciate ligament in the knee. It’s one of the most commonly injured ligaments during athletic activity. The grafts are ligaments taken from other parts of the body, typically the hamstring, patella or Achilles region.

Smith & Nephew is “currently evaluating our options for the next steps,” said Joe Metzger, a spokesman for the company.

A separate Smith & Nephew retrial against Arthrex over a patent on suture anchors began June 13 in federal court in Portland, Oregon. Smith & Nephew had won a $14.7 million verdict in 2008 against Arthrex in that case before the Federal Circuit in 2009 ordered a new trial after determining the judge erred in his interpretation of the patent.

The case yesterday is Smith & Nephew Inc. v. Arthrex Inc., 2010-1427, U.S. Court of Appeals for the Federal Circuit (Washington). The lower court case is Smith & Nephew Inc. v. Arthrex Inc., 07cv335, U.S. District Court, Eastern District of Texas (Marshall).

The Oregon case is Smith & Nephew Inc. v. Arthrex Inc., 04cv29, U.S. District Court, District of Oregon (Portland).

HTC Corp. Sued in U.K. by Germany’s IPCom Over 3G-Device Patent

HTC Corp., the world’s largest maker of mobile phones that use Google Inc.’s Android operating system, was sued in Britain by IPCom GmbH & Co. over claims its products violate a European patent.

The lawsuit, filed June 17 in the High Court in London, came a day after the same patent was found by a U.K. judge to be valid and infringed by Nokia Oyj, the world’s biggest maker of mobile phones by volume.

“We offered a fair and reasonable license” to HTC, Bernhard Frohwitter, IPCom’s managing director, said in an e- mail. The new case targets HTC’s 3G devices, he said.

IPCom, based in Pullach, Germany, seeks royalties from a family of mobile-technology patents it acquired in 2007 from Robert Bosch GmbH, the world’s largest automotive supplier. IPCom bought the patents after Bosch failed to license them to Nokia in 2003.

Linda Mills, a spokeswoman for Taiwan-based HTC, declined to comment when reached yesterday by e-mail.

IPCom seeks a declaration of infringement against HTC and an inquiry into how much profit was generated by the company’s disputed products, according to court records in the case.

Since last week’s ruling, Nokia’s shares fell to a 13-year low. IPCom claims the patent is vital to the Finnish company’s handset sales -- a claim that Nokia rejected.

Diagnostic Medical Test Patents Draw High Court Scrutiny

The U.S. Supreme Court, accepting a case that will shape the burgeoning business of personalized medicine, agreed to consider what types of diagnostic medical tests can be patented.

The justices agreed yesterday to hear an appeal from the Mayo Clinic, which is challenging a lower court decision backing two patents for determining the dosage of medicines to treat stomach diseases. The ruling cleared the patents’ owner, Prometheus Laboratories Inc., to press an infringement suit against two Mayo units.

Patent protection is important for companies that are focusing on personalized medicine, including Myriad Genetics Inc. and Novartis AG. The field involves determining whether a patient is genetically susceptible to a particular disease or would be especially responsive to certain medicines.

The case will test the scope of the U.S. patent laws. Mayo contends the two Prometheus patents cover natural phenomena, which the Supreme Court previously said can’t be patented. Prometheus says its discoveries involve the application of a law of nature, not the law itself.

“The patents do not claim or preempt any purely natural phenomenon,” Prometheus argued in court papers. The company said in May that it was being acquired by Nestle SA.

The two patents cover a method for determining the proper dosage of medicines to maximize effectiveness while limiting toxic side effects. Doctors can use the method to treat inflammatory bowel diseases including Crohn’s disease and ulcerative colitis.

The Mayo Clinic, a not-for-profit medical practice based in Rochester, Minnesota, had licensed the patents prior to 2004, when it created its own test.

The U.S. Court of Appeals for the Federal Circuit, which specializes in patent issues, overturned a trial judge’s conclusion that the patents were invalid.

The Federal Circuit also is considering if Myriad’s diagnostic claims are eligible for patent protection as part of a review of a decision involving patents for tests to determine if a person is more likely to get breast cancer.

The primary part of that case revolves around the issue of whether genetic sequences, isolated from the body, can be patented or if they are something that occurs in nature.

Myriad, Novartis, Laboratory Corp. of America Holdings’s Monogram Biosciences and Genomic Health Inc. all have urged that diagnostic methods be patentable. Monogram and Genomic Health told the Supreme Court in 2009 that they would have difficulty getting funding without patent protection.

The annual market for diagnostic tests and drugs tailored to individuals may reach $42 billion by 2015, according to a 2009 report from PricewaterhouseCoopers LLP.

The case is Mayo Collaborative Services v. Prometheus Laboratories, 10-1150, U.S. Supreme Court (Washington).

For more patent news, click here.

Copyright

Hurtigruten, NRK, Telenor Cruise Broadcast Available for Free

Hurtigruten ASA, the operator of Norway’s coastal ship line, is presently the hit of the nation’s national broadcast system, with more than half the country’s population tuning in to watch a live broadcast of the trip one of its ships -- the NordNorge -- is making from Bergen to Kirkenes, in Norway’s far north.

Telenor ASA, a Fornebu, Norway-based telecommunications company, is providing satellite transmission capacity to the broadcaster for the program, Broadband TV News reported.

The broadcast, available as streaming video on the Norwegian Broadcasting Corp. website, covers the entirety of the 8,043-minute cruise that covers 1,460 nautical miles (1,680 miles). The Norwegian network, known as NRK, is also making segments of the cruise available for downloading using the BitTorrent protocol.

According to the NRK website, the broadcast and the streaming video are available under a Creative Commons Attribution ShareAlike license. This means that all the footage of the midnight sun, the snow-topped mountains, the fjords, the flag-waving crowds and brass bands performing at each stop can be used, distributed and remixed -- even for commercial purposes -- for free, as long as the footage is attributed to the network.

Whoever makes and submits the best mash-up project using the trip footage is eligible to win a 1,000 euro ($1,430) gift card, NRK said in a posting on the English-language section of its blog.

The broadcast/streaming video will run until the NordNorge docks in Kirkenes, Norway, at about 9:45 a.m. local time tomorrow.

Google Scans 250,000 Out-of-Copyright British Library Books

Google Inc., creator of the world’s biggest Internet search engine, plans to scan 250,000 out-of-copyright books for the British Library as it expands its digital book program with more libraries.

Mountain View, California-based Google, which has already made available on the Internet more than 13 million books through deals with libraries, will scan texts from the 18th and 19th centuries over three years, according to spokesman Peter Barron.

“The public domain material is an important part of the world’s heritage and we’re proud to be working with the British Library to open it up to millions of people in the U.K. and abroad,” Barron said in a statement.

Google will fund the cost of the scanning program. The search engine has agreements with more than 40 libraries to scan their collections. In the U.S., the company has been seeking to scan out-of-print books still protected by copyright law.

The British Library formerly had a partnership with Microsoft Corp. to make available 65,000 books. “It’s not the beginning of our partnerships, and it’s certainly not the end,” said Lynne Brindley, chief executive of the British Library.

Google is trying to rehabilitate its image in Europe after years of rankling regulators, artists, publishers and privacy advocates in the region. The company has pledged increased hiring, more respect for intellectual property and improved privacy safeguards to win over critics.

Europe is home to some of Google’s most loyal customers. Its search engine had an 88 percent market share in March, compared with 66 percent in the U.S., where Yahoo! Inc. and Microsoft Corp.’s Bing are stronger competitors, according to comScore Inc., an Internet marketing research company based in Reston, Virginia.

For more copyright news, click here.

Trademark

Pendleton Mills Sues Pendleton Round-Up for Infringing Mark

Pendleton Woolen Mills, the Oregon company that won fame as a producer of Indian trade blankets, sued the sponsor of the 101-year-old Pendleton Round-Up rodeo for trademark infringement.

The suit, filed in federal court in Portland, Oregon, accused the Pendleton Round-Up Association of selling bottled fragrances that infringe the mill’s marks. According to court papers, the Round-Up Association has been a Pendleton licensee since 1997, covering sales of apparel.

Products made under this agreement are co-branded with the mill’s and the Round-Up Association’s marks, the mill said in its pleadings.

The fragrances don’t come under this agreement, and the use of the mill’s mark on them is “likely to cause confusion, mistake and deception as to the affiliation, connection or association” of the Round-Up with the mill, according to the complaint. According to the Let ‘er Buck website, Let ‘er Buck was introduced as the official fragrance of the Round-Up in 2010

The Round Up Association didn’t respond immediately to an e-mailed request for comment. The rodeo will take place Sept. 14-17, according to the association’s website.

The mill asked the court to bar the Round-Up Association from further unauthorized use of its mark, and for an award of the profits the association derived from its alleged infringement.

Additionally, it seeks money damages, attorney fees, litigation costs and an order requiring the association to abandon its application to register “Pendleton Round-Up” with the U.S. Patent and Trademark Office in classes to which it doesn’t have a license.

Pendleton Woolen Mills is represented by Vicki L. Smith and Parna A. Mehrbani of Portland’s Lane Powell PC.

The case is Pendleton Woolen Mills Inc., v. The Round-Up Association, 3:11-cv-00592-AC, U.S. District Court, District of Oregon (Portland).

For more trademark news, click here.

IP Moves

USPTO Names Mary Boney Denison to Trademark Operations Post

The U.S. Patent and Trademark Office named Mary Boney Denison deputy commissioner for trademark operation, the office said in a statement.

Denison is a founding partner of Washington-based Manelli Denison & Selter PLLC, where she principally did trademark litigation and application work.

Before she started her firm, she was a partner in the now- defunct San Francisco firm of Graham & James. She has also practiced with New York’s Smith, Steibel, Alexander & Saskor.

At the USPTO, she will oversee the examination and processing of trademark applications.

She has an undergraduate degree from Duke University and a law degree from the University of North Carolina.

--With assistance from Erik Larson and Jonathan Browning in London, Greg Stohr and Susan Decker in Washington. Editors: Glenn Holdcraft, Mary Romano

To contact the reporter on this story: Victoria Slind-Flor in Oakland, California, at vslindflor@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net.


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