Bloomberg News

Boston Scientific, Microsoft, Apple: Intellectual Property

September 29, 2011

(This is a daily report on global news about patents, trademarks, copyright and other intellectual property topics. Adds Apple Inc. item in copyright section.)

Sept. 29 (Bloomberg) -- Johnson & Johnson’s Cordis unit’s appeal of a lower court ruling that one of its patents wasn’t infringed by Boston Scientific Corp. was rejected by a federal appeals court.

In its ruling yesterday the Washington-based Court of Appeals for the Federal Circuit, which hears appeals of patent cases, said a trial court in Delaware correctly determined that Boston Scientific didn’t infringe patent 5,879,370.

The patent, issued in March 1999, covers an expandable stent that is fabricated from a single piece of metal.

The suit was filed in April 1998, and has had a lengthy procedural history, with several trips through the appeals court.

In its most recent ruling the appeals court said the Delaware court correctly determined that there wasn’t enough evidence to support a jury’s finding that Boston Scientific infringed a part of the disputed patent.

Cordis Corp.’s argument at the appeals court was made by Gregory L. Diskant of New York’s Patterson Belknap Webb & Tyler LLP. Boston Scientific’s case was argued by Frank P. Porcelli of Boston’s Fish & Richardson PC.

The appellate court case is Cordis Corp. v. Boston Scientific, 10-01316, U.S. Court of Appeals for the Federal Circuit.

The lower court case is Cordis Corp. v. Boston Scientific, 1:98-CV-00197-SLR, U.S. District Court, District of Delaware.

Microsoft to Share Patents With Samsung, Market Windows Phone

Microsoft Corp., the software maker seeking to challenge Apple Inc. and Google Inc.’s dominance in smartphones, agreed to share patents with handset-maker Samsung Electronics Co.

Microsoft will receive royalties for mobile phones and tablets built by Samsung that use Google’s Android operating system, according to a Sept. 28 company statement. The companies also agreed to cooperate on the development and marketing of Windows Phone, Microsoft’s mobile software.

Smartphones with Microsoft’s revamped Windows Phone 7 software have struggled to compete with Apple’s iPhone and Android-based devices. Microsoft, whose Windows Mobile software licenses were doubling annually before the iPhone was introduced in 2007, announced an alliance with Nokia Oyj in February to develop smartphones.

LG Seeks to Block Osram-Equipped BMW, Audi Sales in S. Korea

LG Electronics Inc. and LG Innotek Co. filed suit in Seoul against Bayerische Motoren Werke AG and Audi AG’s South Korean units to block local sales of their vehicles equipped with light-emitting diode package headlamps made by Osram GmbH.

The two LG Group affiliates said the Osram’s LED headlamps infringed their patents, according to an e-mailed statement from LG Electronics yesterday.

For more patent news, click here.

Trademark

Sega European Trademark Filing Hints at New Title in Yakuza Game

Sega Sammy Holdings Inc.’s Sega unit, creator of the Yakuza and Sonic Hedgehog electronic games, is moving its Yakuza game in a new direction, the Gaming Union Network reported.

The publication based its report on European trademark filings by Sega for “Yakuza Dead Souls.”

Previous games in the Yakuza series were released exclusively for Sony Corp.’s PlayStation 3, and Gaming Union Network predicted the new game will likely also be a PlayStation exclusive.

Danish Jewelry Maker Pandora A/S Registers Trademark in China

Pandora A/S, the maker of customizable charm bracelets, registered its trademark in China, the Glostrup, Denmark-based company said in a statement.

The mark’s registration covers jewelry, watches and related products, according to the statement.

Pandora has enforced its IP rights in the U.S. by filing at least five suits in federal court, according to Bloomberg data.

Station Sues Mississippi Riverboat Casino for Infringing Mark

Station Casinos LLC’s IP holdings company filed a trademark infringement suit against the operators of a riverboat casino in Vicksburg, Mississippi.

Delta Investments & Developments LLC of South Carolina bought the Horizon Vicksburg Casino from Tropicana Entertainment Inc. for $3.25 million Dec. 7, 2010, according to a Tropicana regulatory filing. The only intellectual property that was part of the sale was the name “Horizon,” and purchasers were required to remove any mention of the names “Tropicana” or “Trop” within 90 days of closing of the sale.

Delta Investments closed the casino for renovation in March 2011, reopening in June as the Grand Station Hotel & Casino, Station Casinos said in the complaint filed Sept. 27 in federal court in Las Vegas.

Station objects to the name, saying it infringes on its trademarks that include “Station Casinos,” “Palace Station,” “Boulder Station,” “Texas Station,” “Sunset Station” and “Santa Fe Station.”

The Vicksburg casino’s use of “station” in its name and in its website -- www.grandstationcasino.com -- are likely to cause the public to assume falsely that an affiliation exists between Station Casinos and the Mississippi casino, according to court papers.

Las Vegas-based Station claims it has suffered “monetary loss and irreparable injury” as a result of the Mississippi casino’s use of “station” in its name. The company asked the court to bar the use of its marks or any “confusingly similar variations.”

Additionally, the company seeks an award of the profits the riverboat casino has earned in connection with its unauthorized use of the “Grand station” mark, together with awards of money damages, litigation costs and attorney fees.

Counsel for Delta Investments didn’t respond immediately to an e-mailed request for comment.

Station is represented by Tamara Beatty Peterson and Laura Bielinski of Denver-based Brownstein Hyatt Farber Schreck LLP.

The case is NP IP Holdings LLC v. Delta Investments & Development LLC, 2:11-cv-01553-PMO-LRL, U.S. District Court, District of Nevada (Las Vegas).

For more trademark news, click here.

Copyright

Righthaven Has No Standing to Sue, Judge in Denver Cases Rules

Righthaven LLC, the Las Vegas-based copyright-enforcement organization, was told it lacked standing to pursue a copyright infringement case in federal court in Denver.

The ruling is significant because judge who made this determination is overseeing all 57 copyright infringement cases Righthaven filed in that court since Jan. 20.

Righthaven filed the cases on behalf of the Denver-based MediNews Group Inc. The suits related to the unauthorized use of content from MediaNews Group’s “Denver Post.”

The owner of the itmakesense.com website was sued March 31 for using content from the newspaper on the itmakessenseblog.com website.

In each case Righthaven claimed to own the copyright to the work that was allegedly infringed.

In his Sept. 27 ruling, U.S. District Judge John L. Kane said he gave a close reading to the copyright assignment agreement between MediaNews Group. He noted that under the agreement, Righthaven has no rights to the particular copyright “other than the right to proceed in association with a recovery.”

This limitation means that Righthaven isn’t an owner as defined by copyright law, Kane said. As such “it lacks standing to institute an action for copyright infringement.”

He also said that because he wished to “discourage the abuse of the statutory remedies for copyright infringement,” so in addition to ruling there was no reason for the trial to go ahead, he awarded attorney fees and litigation costs to the defendant.

The case is Righthaven LLC v. Leland Wolf, 1:11-cv-00830- JLK, U.S. District Court, District of Colorado (Denver).

In a Sept. 8 court filing in a Righthaven case in a Nevada federal court on behalf of Las Vegas-based Stephens Media Group, a defendant who was awarded attorney fees has asked for seizure of Righthaven’s intellectual property, real estate and bank accounts.

That case is Righthaven v. Hoehn, 2:11-cv-00050-PMP-RJJ, U.S. District Court, District of Nevada (Las Vegas).

Apple Court Order Blocking Psystar Product Sales Is Upheld

Apple Inc. won an appeals court ruling upholding a lower- court order blocking Psystar Corp., maker of Macintosh computer clones, from selling copies of Apple Inc.’s operating system.

The case, filed in federal court in San Francisco in 2008, was related to a Psystar software product that made it possible for customers to run the Mac Snow Leopard operating system on a non-Apple computer.

Cupertino, California-based Apple had claimed that Psystar, based in Doral, Florida, was selling inferior computers and servers using unauthorized copies of the operating system. It was also accused of selling downloadable updates for Snow Leopard.

The district court found that Psystar infringed the Apple copyrights. While Psystar didn’t appeal the infringement finding, it asked the appeals court to reconsider the lower court’s rejection of its contention that Apple’s software license agreement was unenforceable.

Psystar had argued that the license provision requiring Apple’s operating system be run only on Apple computers was an unenforceable misuse of its copyright.

Apple argued that Psystar failed to prove copyright abuse because the license agreement didn’t restrict creativity or competition. The appeals court agreed, and also affirmed the lower court’s ruling barring future infringement.

The appeals court agreed with Psystar that Apple failed to present an adequate argument for the sealing of Apple records in the case file. It ordered the lower court to unseal those records.

The appeals court case is Apple Inc. v. Psystar Corp. 10- 15113, U.S. Court of Appeals for the Ninth Circuit. The lower court case is Apple Inc. v. Psystar Corp., 3:08-cv-03251-WHA, U.S. District Court, Northern District of California (San Francisco).

For more copyright news, click here

Trade Secrets/Industrial Espionage

Carlyle Group’s Expected Water Company Profit Is Trade Secret

Carlyle Group’s profit expected from Missoula, Montana’s Mountain Water Co. is covered by a protective order and can’t be revealed to the public, the Missoulian newspaper reported.

The Washington-based private-equity fund manager is seeking approval from Montana’s Public Service Commission of its $102 million purchase of Park Water Co. and its Mountain Water unit, according to the newspaper.

In a pre-purchase investment committee memo it provided, Carlyle said it planned to sell the water companies within five to 10 years, according to the Missoulian.

An economist witness to the Montana Consumer Counsel, who couldn’t reveal the Carlyle financial information to which he had access, filed documents with the Public Service Commission saying that while he didn’t necessarily agree with the reasonableness of the group’s profit assumptions, he didn’t see them as “problematic to ratepayers,” the Missoulian reported.

Malaysian Hoteliers Fear Reports to Board Reveal Trade Secrets

Hoteliers in Malaysia’s Sarwak state are reluctant to register with that country’s Tourism Promotion Board for fear of divulging their trade secrets, the Borneo Post reported.

An official of the board told the Borneo Post that only 50 percent of the region’s hotels, homestays and bed and breakfast inns had registered.

He said the hoteliers’ fears were unfounded as the commission works “in a private and confidential mode” and runs statistics on an overall basis, not on individual hotels, according to the Post.

The number of reported hotel guests in the region declined more than 10 percent over last year, mainly related to the economy and a state election, the Post reported.

--With the assistance of Saeromi Shin and Jun Yang in Seoul, Hugo Miller in Toronto. Editors: Mary Romano, Peter Blumberg

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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