Bloomberg News

Microsoft, Cephalon, DuPont, Red Bull: Intellectual Property

December 16, 2011

(This is a daily report on global news about patents, trademarks, copyright and other intellectual property topics. aDDS Stop Online Piracy Act item in copyright section.)

Dec. 16 (Bloomberg) -- Microsoft Corp., the world’s largest software maker, told a German court that Android-based smartphones and tablets from Motorola Mobility Holdings Inc. infringe its European patents.

Microsoft claimed in the first of three cases heard yesterday that software Motorola Mobility uses protected technology that helps computers switch between languages in the same program. Presiding Judge Peter Guntz in Munich said the patent may have been drafted so narrowly that its language may not cover the solution Motorola Mobility uses.

It was the first time the two U.S. companies faced each other in a German court in the patent dispute. The country has become a center for European smartphone and tablet lawsuits with Apple Inc. and Samsung Electronics Co. are involved in similar cases in Mannheim and Munich.

A suit between Microsoft and Motorola Mobility in the U.S. is pending before the International Trade Commission in Washington where a judge is scheduled to release his findings tomorrow. Microsoft sued Motorola Mobility in Munich, while Motorola Mobility, which is being acquired by Google Inc., filed several suits against Microsoft in Mannheim.

An offer by the court to mediate settlement talks was rebuffed by both parties yesterday. While the companies have talked, not much progress has been made since their last meeting in October, Motorola Mobility attorney Marcus Grosch said.

“The German cases are just a fraction of all the litigation. The bulk of suits is pending in the U.S.,” said Peter Hess, a lawyer for Microsoft. “Motorola Mobility cannot settle as long as Google hasn’t gained control, so talks here don’t make much sense.”

Google said Aug. 15 it would buy Libertyville, Illinois- based Motorola Mobility for $12.5 billion to obtain patents that may be used to fend off suits targeting handsets and tablet computers that use Android.

Microsoft, based in Redmond, Washington, makes its own mobile-operating system, Windows Phone 7, which competes with Android.

In a second hearing yesterday, Microsoft argued that Android-based devices illicitly use its technology for sending short messages with an unlimited number of characters. Motorola Mobility, which denies wrongdoing, argues Android’s uses a two- step procedure, whereas Microsoft’s patent protects a one-step solution. The third case concerned technology used for intents notifications.

The court scheduled separate hearings for each case in March and April.

Yesterday’s cases are: LG Muenchen, 7 O 7019333/11, 7019334/11 and 70020429/11.

Cephalon, Acusphere Claim Celgene’s Abraxane Infringes Patent

Teva Pharmaceutical Industries Ltd.’s Cephalon unit and Acusphere Inc. sued Celgene Corp. for patent infringement related to the breast cancer drug Abraxane.

The lawsuit claims Celgene’s Abraxane violates an Acusphere patent for a drug formulation of paclitaxel particles, according to the complaint filed Dec. 14 in federal court in Boston. Abraxane’s active ingredient is the compound paclitaxel.

The injected drug, used to treat metastatic breast cancer, was obtained by Summit, New Jersey-based Celgene as part of its purchase of Abraxis BioScience Inc. in 2010. The drug generated $282 million in sales in the first nine months of this year, according to the company’s quarterly reports.

Cephalon, acquired in October by Petah Tikva, Israel-based Teva, is the exclusive licensee of Watertown, Massachusetts- based Acusphere’s patent. The companies are seeking cash compensation and an order to block further use of the invention.

The case is Cephalon Inc. v. Celgene Corp., 11cv12226, U.S. District Court for the District of Massachusetts (Boston).

DuPont, Honeywell Said to Face EU Car-Refrigerant Probe

DuPont Co., the largest U.S. chemicals company by market value, and Honeywell International Inc. face a European Union antitrust probe over a refrigerant for car air-conditioning systems, according to four people familiar with the plan.

The European Commission will soon open a formal investigation to examine whether DuPont and Honeywell may have concealed their ownership of patents for the refrigerant before the car industry agreed to use the technology as a standard, said the people who couldn’t be identified because the issue isn’t yet public.

Honeywell and DuPont are expecting growth from the technology they jointly developed to meet EU environmental rules to cut greenhouse gases from air-conditioning systems. DuPont told investors this week that the low-emission refrigerant promises “nice growth and some healthy margins.” Honeywell’s specialty chemicals division has said it expects coolants to help it make “extremely solid” profits.

EU Competition Commissioner Joaquin Almunia said earlier this month he planned to open “a high-profile case on standards” to follow an investigation into standards in the banking industry

DuPont “will continue to cooperate fully with this inquiry and is confident that the commission will conclude that actions taken by DuPont complied with applicable laws,” said Janet Smith, a spokeswoman for the Wilmington, Delaware-based company.

Honeywell is confident that its “practices are consistent with the law and that the commission will conclude that we acted in full compliance with European Union competition rules,” Peter Dalpe, a spokesman for the Morristown, New Jersey-based company said in an e-mail.

The refrigerant developed by Honeywell and DuPont was designed to replace ozone-depleting chlorofluorocarbons, which can’t be included in new cars sold in the 27-nation EU from 2017.

Honeywell and DuPont agreed last year on a joint venture to produce the refrigerant from the fourth quarter this year.

The Brussels-based antitrust authority can fine companies as much as 10 percent of yearly sales or require them to change the way they do business if it concludes that they harmed competition.

For more patent news, click here.

Trademark

Yahoo May Win Case Over U.K. Soccer Data, EU Court Aide Says

Yahoo! Inc. may win a bid to access annual schedules of the English and Scottish soccer leagues, an adviser at the European Union’s highest court said.

Soccer leagues can’t claim copyright protection for match schedules, Paolo Mengozzi of the EU Court of Justice said in a non-binding opinion yesterday. The creation of soccer fixture lists is a “data creation activity” and not an “original intellectual creation.” The Luxembourg-based EU court follows this advice in a majority of cases.

“The effort expended in the creation of the data cannot be taken into consideration for the purposes of assessing the eligibility for protection of the database as such,” Mengozzi said in his opinion.

Yahoo, based in Sunnyvale, California, and a number of betting companies who want to access the information, are at loggerheads with the soccer leagues over whether their lists’ data is protected by copyright. While Yahoo’s U.K. unit argued the data isn’t protected and can be published without payment, the English and Scottish leagues said they own the rights to the data on the annual fixture lists and can charge for its use.

A London court in 2010 ruled the data is protected by copyright under the EU’s database law. The case is now pending at the Court of Appeal in London, which last year referred the case to the EU court for guidance.

Any ruling by the EU Court of Justice, which usually follows within six months of the opinion, will be binding.

“We’re pleased that the Advocate General shares our opinion that there are no intellectual property rights in football fixtures,” Yahoo said in an e-mailed statement.

Football DataCo, which is responsible for the Premier League and Football League fixture lists, declined to comment.

The case is C-604/10, Football DataCo Limited, Football Association Premier League Ltd, Football League Limited, Scottish Premier League Limited, Scottish Football League, PA Sport UK Limited v. Yahoo UK Limited, Stan James (Abingdon) Limited, Stan James Plc, Enetpulse APS.

Red Bull Loses EU Court Ruling Over Dutch Trademark Breach

Red Bull GmbH, an Austrian energy-drink maker, lost a challenge at the European Union’s highest court over an alleged breach of its trademark by a Dutch company.

“A service consisting of the mere filling of cans bearing a sign protected as a trademark is not use of that sign which is liable to be prohibited,” the EU Court of Justice, the region’s top court, said in a ruling in Luxembourg yesterday.

Red Bull, based in Fuschl am See, Austria, sued Dutch company Frisdranken Industrie Winters BV after it filled up cans bearing logos and texts such as “Bullfigter,” and “Red Horn” with drinks for another company, called Smart Drinks. Red Bull, whose logo is a red bull, argued its Benelux trademark rights had been infringed.

Frisdranken didn’t use the protected trademark and couldn’t have infringed it, the court said.

“The service provided by Winters consists of the filling of cans and this service does not have any similarity with the product for which Red Bull’s trademarks were registered,” said the EU court.

Tina Deutner, a spokeswoman for Red Bull, declined to comment.

The case is pending at the Dutch Supreme Court, which last year sought the EU court’s guidance whether a company that fills up cans provided by another company, can breach trademark rights.

The case is C-119/10, Frisdranken Industrie Winters BV v. Red Bull GmbH.

For more trademark news, click here.

Copyright

Ex-Judiciary Committee Staffers Lobbying House on SOPA

Sixteen former staff members of the U.S. House of Representatives Judiciary Committee are presently lobbying Congress with reference to the Stop Online Piracy Act, the Sunlight Foundation Reporting Group reported.

Eight ex-staffers of the committee are lobbying in support of the bill, representing such organizations as the U.S. Chamber of Commerce, the Motion Picture Association of America and the Recording Industry Association of America, according to Sunlight Foundation, a Washington-based non-profit group aimed at governmental transparency.

The group also found eight different ex-staffers lobbying against the bill, representing organizations that include Google Inc., the Digital Media Association and Microsoft Corp.

Hollywood-Backed Bill on Web Piracy Debated as Amendments Added

House Judiciary Committee Chairman Lamar Smith urged U.S. lawmakers to approve Hollywood-backed legislation aimed at stopping Internet piracy of movies and goods that Google Inc. opposes as promoting censorship.

Smith’s panel was debating 60 proposed amendments to the Stop Online Piracy Act yesterday before deciding whether to send the measure to the full House for consideration. Lawmakers on the panel raised concerns that a provision on blocking websites may damage the security of the Internet’s domain-name system and requested a delay to hear technical testimony.

Lobbying by the entertainment and Internet industries intensified ahead of yesterday’s hearing. Movie studios, including Warner Bros. Entertainment Inc., want a crackdown on non-U.S. websites that sell illegally copied films and TV shows. Web companies say the House measure would harm innovation.

“Laws equip U.S. authorities and rights-holders to take action against criminals who operate within our borders,” Smith, a Republican from Texas, said in an opening statement at the hearing. “But there is no parallel authority that permits effective action against criminals who operate from abroad.”

The bill would let the Justice Department ask courts to order Internet-service providers, search engines, payment services and advertising networks to block or cease business with non-U.S. websites trafficking in stolen content or counterfeit goods.

Sixteen Internet executives, including Google co-founder Sergey Brin, PayPal Inc. co-founder Elon Musk, and EBay Inc. founder Pierre Omidyar, published an open letter to Congress in major newspapers yesterday saying the House and Senate bills would give the U.S. government power to censor the Web.

Google, Facebook Inc. and other Internet companies rallied around an alternative draft bill from Senator Ron Wyden, an Oregon Democrat, and Representative Darrell Issa, a California Republican, which would make the U.S. International Trade Commission the arbiter of complaints about non-U.S. websites linked to piracy.

The proposal from Wyden and Issa “fails to provide an effective way to target foreign rogue websites and goes easy on online piracy and counterfeiting,” Michael O’Leary, senior executive vice president for global policy and external affairs at the Motion Picture Association of America, said in a statement last week.

For more copyright news, click here.

IP Moves

Openwave Appoints Mendez, Robbins to Run IP Portfolio Business

Openwave Systems Inc., a provider of Internet-based communications software and applications, hired two new managers of its IP patent portfolio business, the Redwood City, California-based company said in a statement.

One of the new hires is Daniel Mendez, who was previously vice president and chief technology officer at American Management Systems. He has also worked as director and senior technical consultant at Cambridge Technology Partners, a business consulting service based in Nyon, Switzerland.

He has an undergraduate degree in computer science from Harvard University.

Tim Robbins, the other new hire, was previously vice president, general counsel and corporate secretary for Visto Corp. Before that, he practiced law at Redwood City, California- based Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP.

Robbins has an undergraduate degree in business and economics from the University of California at Los Angeles and a law degree from the University of Virginia.

--Editor: Peter Blumberg

--Editor: Peter Blumberg

--With the assistance of Stephanie Bodoni in Luxembourg, Aoife White in Brussels, Karin Matussek in Berlin, Susan Decker in Washington

Editors:

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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