Bloomberg News

Alcatel-Lucent, Noven, EA, Claiborne: Intellectual Property

October 14, 2011

(This is a daily report on global news about patents, trademarks, copyright and other intellectual property topics.)

Oct. 14 (Bloomberg) -- Alcatel-Lucent’s patent-infringement jury award against Microsoft Corp. may be reduced to $26.3 million from $70 million, a federal judge said.

U.S. District Judge Marilyn Huff in San Diego said at a hearing Oct. 12 that she will review more legal arguments before issuing a ruling. Huff said she agreed with the world’s largest software maker that the jury’s July 29 award wasn’t supported by evidence presented during a 10-day trial.

The judge said she disagreed with how an expert witness for Alcatel-Lucent calculated damages and told lawyers $26.3 million is “a fair damages figure that is not excessive based on the totality of the evidence.” She asked attorneys on both sides to file additional legal arguments on her finding by the end of the month before she makes her decision final.

The infringed patent relates to technology used in Microsoft’s Outlook program and two other applications. Microsoft asked the judge to reduce the award to no more than $5 million.

Microsoft attorney Roger Denning told the judge that Alcatel-Lucent’s formula for computing damages didn’t comply with guidelines set by Huff and appellate court rulings.

“Those went ignored,” he said. “Lucent put its head down and bullied through with its $70 million figure ignoring the guidance that was given.”

Alcatel-Lucent’s lawyers argued there was more than sufficient evidence to support the jury’s verdict and that the verdict should be respected.

“If the court is going to take the judgment out of the jury’s hands the standard is extraordinarily high,” said company attorney Luke Dauchot.

Lawyers for Alcatel-Lucent also asked Huff to award $38.3 million in prejudgment interest on top of the jury’s $70 million award. Alcatel-Lucent, France’s largest maker of telecommunications equipment, also has been awarded $450,479 in trial costs.

The technology at issue, called the “Day patent,” was described in court during the trial as involving a touch-screen form entry. Microsoft argued the patent relates to a simple “date-picker” function and has nothing to do with e-mail, the most popular function on Outlook. Paris-based Alcatel-Lucent described the technology as a tool that “plays a central role in the entire operation” of Outlook.

A different jury in San Diego in 2008 found that Redmond, Washington-based Microsoft had infringed the patent and awarded $358 million in damages. An appeals court, upholding the infringement verdict, overturned the damages award, finding the calculation lacked sufficient evidentiary support. The case was sent back for retrial on damages only.

The case is Lucent Technologies Inc. v. Gateway Inc., 07- cv-02000 U.S. District Court, Southern District of California (San Diego).

Noven Files Patent Suit Against Watson Over Daytrana Copy

Hisamitsu Pharmaceutical Co.’s Noven Pharmaceuticals unit sued Watson Pharmaceuticals Inc. to prevent it from selling a generic version of Daytrana, a skin patch for children with attention deficit disorder.

Watson is seeking U.S. Food and Drug Administration approval to sell a copy of Daytrana, according to the complaint filed yesterday in federal court in Newark, New Jersey. Miami- based Noven said the Watson version would infringe two patents and seeks a court order to prevent sales until the patents expire in 2018.

Under federal drug law, the filing of the lawsuit prevents the FDA from granting Watson final approval for 30 months unless a court rules in the generic-drug maker’s favor before then.

“We are challenging the patents on the product,” said Charlie Mayr, a spokesman for Parsippany, New Jersey-based Watson, in a phone interview. He declined to comment further.

The case is Noven Pharmaceuticals v. Watson Laboratories, U.S. District Court, District of New Jersey (Newark).

For more patent news, click here.

Trademark

EA Sues ‘Negative Ion’ Bracelet Maker for Infringing Mark

Electronic Arts Inc., maker of the John Madden NFL video games, sued a Florida maker of “negative ion” products for trademark infringement.

Energy Armor Inc., of Jacksonville, Florida, is accused of marking its so-called negative ion wristbands with an EA logo that is confusingly similar to one for which the game company has a registered trademark.

Electronic Arts, based in Redwood City, California, said the Florida company published photos of professional athletes wearing the wristbands as part of an ad campaign. The mark on the wristbands is “confusingly similar” and the bands are sold through some of the same retail channels as Electronic Arts’ games, according to the complaint filed in federal court in San Francisco.

The game maker claims that Energy Armor intended to cause confusion and to trade off Electronic Arts’ goodwill and reputation. Electronic Arts said it is concerned that its own reputation may be tarnished by the association with Energy Armor’s products.

Electronic Arts asked the court to order the Florida company to stop using the mark and to destroy all allegedly infringing products and promotional materials. Additionally, Electronic Arts requested a court order directing the U.S. Patent and Trademark Office not to register Energy Armor’s trademark and for awards of money damages, profits attributable to the alleged infringement, attorney fees and litigation costs.

Energy Armor didn’t respond immediately to an e-mailed request for comment.

Electronic Arts is represented by Colby B. Springer and Michael J. McCue of Lewis & Roca LLP of Phoenix.

The case is Electronic Arts Inc., v. Energy Armor Inc., 3:11-cv-04184-JCS, U.S. District Court, Northern District of California (San Francisco).

Claiborne Turns Trademarks Loose in $328 Million Transaction

Liz Claiborne Inc.’s $328 million sale of its Liz Claiborne, Monet and other brands means a turnover of at least half of the New York-based apparel company’s trademarks.

According to the U.S. Patent and Trademark Office trademark database, Claiborne has about 130 active trademarks. Many of them are variations on the Claiborne or Liz theme, including “Liz sport,” “Lizwear,” “ Liz&Co.” and “Liz is.” Those marks, together with those related to the Monet jewelry brand, are going to J.C. Penney Co., with several of the Claiborne- related marks to be licensed back to Liz Claiborne until July 2020.

The Claiborne company did retain international rights for the Monet brand, according to a company statement. Part of the purchase price is an advance of $20 million for Claiborne to develop exclusive brands for J.C. Penney.

Additionally, in a $40 million transaction, Claiborne sold its Dana Buchman marks to Kohl’s Corp., the Menomonee Falls, Wisconsin-based department-store chain, and affiliates of New York’s Bluestar Alliance LLC acquired Claiborne’s Kensie, Kensiegirl and Mac & Jac brands.

For more trademark news, click here.

Copyright

Copyright Notice Removed From U.S. Military Court Website

Following a complaint from the president of the National Institute of Military Justice, the federal government removed a copyright notice from a website for the military court in Cuba, the Sacramento Bee reported.

The site --www.mc.mil-- went live in early October with a copyright notice right below images of the Statue of Liberty and Abraham Lincoln, the newspaper reported.

Eugene R. Fidell, who is a professor at Yale University’s law school in addition to his leadership role at the military justice group, contacted the webmaster to point out that government is barred by an 1895 statue from having a copyright to its own publications, according to the Bee.

For more copyright news, click here.

Trade Secrets/Industrial Espionage

Former Citadel Employee Charged With Trade-Secret Theft

A former Citadel LLC employee was charged with stealing trade secrets from the Chicago-based investment firm.

Yihao “Ben” Pu, 24, was arrested Oct. 12 and faces as long as 10 years in prison and a $250,000 fine if convicted, U.S. Attorney Patrick Fitzgerald in Chicago said yesterday in a statement.

Citadel hired Pu last year to help develop proprietary- trading strategies for the $11 billion hedge fund. Citadel officials allegedly discovered Pu copying company data onto a removable storage device, according to the U.S.

“Pu was attempting to construct a trading strategy similar to the one used by Citadel,” Fitzgerald said, citing evidence recovered in the investigation. Citadel sued Pu in Illinois state court in August.

Pu made an initial appearance Oct. 12 before U.S. Magistrate Judge Maria Valdez. He was being held in federal custody while awaiting a detention hearing scheduled for today, according to prosecutors.

Robert Greenspoon, the attorney representing Pu in the civil suit, yesterday declined to comment on the criminal allegations. Greenspoon, who appeared in court with Pu Oct. 12, said he won’t be the lead defense counsel in the criminal case.

Devon Spurgeon, a spokeswoman for Citadel, declined to comment on the case.

The criminal case is U.S. v. Pu, U.S. District Court, Northern District of Illinois (Chicago). The civil case is Citadel LLC v. Pu, 11CH30493, Cook County, Illinois, Circuit Court, Chancery Division (Chicago).

--With assistance from Bill Callahan in San Diego, Susan Decker in Washington, Andrew Harris in Chicago and David Voreacos in Newark, New Jersey. Editor: Stephen Farr

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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