Bloomberg News

Google, Bard, PepsiCo, Time Warner: Intellectual Property

February 15, 2012

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

Feb. 14 (Bloomberg) -- Google Inc.’s $12.5 billion purchase of Motorola Mobility Holdings Inc. was approved by U.S. antitrust regulators, expanding the company’s mobile-phone patents and increasing competition with Apple Inc.

The acquisition of Libertyville, Illinois-based Motorola Mobility gives Google, the biggest maker of smartphone software, more than 17,000 additional patents in the largest wireless- equipment deal in at least a decade, according to data compiled by Bloomberg.

The U.S. Justice Department said yesterday the patent purchases wouldn’t hurt competition in the mobile-phone industry.

Google, based in Mountain View, California, cited reinforcing its defenses in patent litigation as the prime motive for its agreement to buy Motorola Mobility and its patents.

Apple, maker of the iPhone, and Microsoft Corp., developer of Windows Phone software, have sued around the world over phones that run on Google’s Android system, including handsets built by Motorola Mobility, Samsung Electronics Co. and HTC Corp.

The patents include technology essential to the mobile- device industry, including location services, antenna designs and touch-screen motions.

A plan by a group led by Microsoft and Apple to buy Nortel Network Corp. patents also received antitrust approval yesterday, according to the department. The $4.5 billion acquisition will give the group, which includes Research in Motion Ltd., Sony Corp., Ericsson AB and EMC Corp., control of more than 6,000 patents and applications that cover wireless technologies.

Earlier yesterday, Google won European Union approval for the Motorola Mobility deal.

While the European Commission said Google’s planned purchase of Motorola Mobility didn’t raise competition concerns, the EU’s antitrust chief Joaquin Almunia said he’s “concerned” by phone makers using patent litigation to block rivals.

“We are aware of the increasingly strategic use of patents in the sector and are vigilant,” Almunia said in an e-mailed statement.

The commission said its probe showed that Google was unlikely to block rivals’ access to Android software or to use Motorola Mobility’s standard-essential patents to give an unfair boost to its search and advertising services.

Almunia said he didn’t rule out future antitrust probes into companies using lawsuits to block rivals.

EU antitrust regulators are separately investigating Google over claims it discriminated against other services in its search results and stopped some websites from accepting rival ads. Microsoft and shopping-comparison site Foundem are among companies that asked the agency to examine the Mountain View, California-based search engine.

Bard Unit Sues Hologic Over Breast Cancer Treatment Patents

C.R. Bard Inc.’s SenoRx Inc. unit sued Hologic Inc., claiming the company is infringing two patents for medical devices and a method for treating breast cancer.

SenoRx says Hologic’s MammoSite Multi-Lumen device is misappropriating technology used in SenoRx’s Contura Multi-Lumen Balloon, which delivers radiation to tissue where cancer may recur after the removal of a tumor.

“SenoRx has suffered, and continues to suffer, economic harm as a result of Hologic’s infringing activities,” lawyers for SenoRx wrote in court papers filed Feb. 10 in federal court in Wilmington, Delaware.

Deborah Gordon, a spokeswoman for Hologic, didn’t immediately return a phone call seeking comment on the lawsuit.

SenoRx wants a ruling that Hologic’s alleged infringement was intentional, which could triple the damages that SenoRx may recover. The complaint doesn’t say how much SenoRx is seeking.

Separately, Bedford, Massachusetts-based Hologic sued SenoRx in 2008 claiming the Contura system infringed its MammoSite device. In 2009 a jury found that SenoRx didn’t infringe patents related to balloon brachytherapy, in which a balloon is inserted to irradiate remaining cancerous tissue in the area where a tumor has been removed.

The U.S. Court of Appeals for the Federal Circuit in Washington overruled the verdict last year and sent the case back to the lower court.

Murray Hill, New Jersey-based C.R. Bard acquired SenoRx in 2010 for about $213 million, according to a statement and data compiled by Bloomberg.

The case is SenoRx Inc. v. Hologic Inc., 12-cv-173, U.S. District Court, Delaware (Wilmington). The appeals case is Hologic Inc. v. SenoRx Inc., 2010-1235, U.S. Court of Appeals for the Federal Circuit (Washington). The lower court case is Hologic Inc. v. SenoRx, 08-cv-133, U.S. District Court, Northern District of California (San Jose).

For more patent news, click here.

Trademark

PepsiCo’s Frito-Lay Sues Ralcorp Unit, Claims Scoops Infringed

PepsiCo Inc.’s Frito-Lay unit, the maker of Cheetos and Ruffles potato chips, sued Ralcorp Holdings Inc. and its Medallion Foods unit for trademark and patent infringement.

The suit, filed Feb. 10 in federal court in Sherman, Texas, is related to Frito-Lay’s Tostitos Scoops! product. This is a small bowl-shaped corn chip that can be used to scoop up salsa, guacamole or other dips.

According to court papers, Frito-Lay has been making Scoops! since 2001. The company registered the shape of the product as a trademark and says the product is covered by four U.S. patents, one of which covers the design.

Frito-Lay objects to Medallion’s Bowlz corn chips. The complaint features a color photo of the two products laid out side by side on a plain background. It also contains color photos of the packaging for each product.

The Bowlz product is intended to trade off the goodwill of Frito-Lay’s Scoops! through its similar shape and packaging, Plano, Texas-based Frito-Lay said in its pleadings. The two products are sold on the same shelves in the same retail outlets, and consumers are likely to be confused by the apparent similarity, the company claims.

Medallion, based in Newport, Arkansas, is accused of causing financial and reputation damage to Frito-Lay. The company didn’t respond immediately to an e-mailed request for comment.

Frito-Lay asked the court to issue an order barring Medallion from registering any mark confusingly similar to the “Tostitos Scoops!” mark, and for award of money damages, litigation costs and attorney fees. Additionally, Frito-Lay requested it be awarded Medallion’s profits attributable to the alleged infringement and that the damages be increased to punish the company for its actions.

The Texas company is represented by Timothy S. Durst, Susan Cannon Kennedy and Jonathan R. Mureen of Houston-based Baker Botts LLP.

The case is Frito-Lay North America Inc. v. Medallion Foods Inc., 4:12-cv-00074, U.S. District Court, Eastern District of Texas (Sherman).

Time Warner, Disney in a Race With Competing ‘Oz’ Applications

Time Warner Inc.’s Turner Entertainment unit filed a clutch of applications Oct. 28 to register “The Great and Powerful Oz” with the U.S. Patent and Trademark Office in October.

The company’s applications have been suspended, according to the patent office database, because the Walt Disney Co. has prior pending applications to register “Oz the Great and Powerful.” The suspension letter was sent Feb. 8.

The original “Wizard of Oz” film was made by Metro- Goldwin-Mayer in 1939, based on “The Wonderful Wizard of Oz,” a children’s book published in 1900 by Frank L. Baum. Turner acquired the firm in the 1980s as part of the company’s purchase of much of MGM’s library.

Disney is coming out with “Oz: The Great and Powerful” in March 2013. It’s a prequel to the story, told from the point of view of the Wizard himself.

On Oct. 21, Disney filed eight applications to register “Oz The Great and Powerful” for a variety of uses, including toys, cosmetics, bags and backpacks, toothpaste, and educational services. These predate the Turner applications by one week.

For more trademark news, click here.

Copyright

‘Crowd-Sourced’ Yogurt Ad Nets Danone Infringement Allegations

Danone SA’s Dannon unit’s Super Bowl ad for its new Oikos Greek-style yogurt is winning it allegations of copyright infringement from fans of the John Butler Trio, the Australian newspaper reported.

The ad allegedly contains the first few notes of the band’s song “Zebra,” according to postings on the yogurt company’s social-media pages, the Australian reported.

A Dannon spokesman told the Australian that the company couldn’t determine whether the ad’s music is based on the band’s because the ad was created by the crowd-sourcing process, with numerous ideas submitted by professionals in the advertising industry.

The band says permission was never sought to use its music in the ad, according to the Australian.

Apple Adds Patent-Infringement Claims Against Samsung With Suit

Apple Inc.’s newest lawsuit against Samsung Electronics Co., set for a hearing May 2, increases the number of Samsung devices that Apple argues infringe its products.

Apple seeks a court order blocking the alleged infringement in smartphones such as Samsung’s Galaxy S II Skyrocket and Galaxy S II Epic 4G Touch, which use Google Inc.’s Android operating system, and Samsung’s Galaxy 4.0 and 5.0 media players.

In December, Apple lost a similar request for a court order blocking sales of Samsung’s 4G smartphone and Galaxy Tab 10.1 tablet computer. Trial for that case is set for July 30.

“Despite that lawsuit, Samsung has continued to flood the market with copycat products, including at least 18 new infringing products released over the last eight months,” according to the complaint filed Feb. 8 in federal court in San Jose, California.

Samsung’s newer products infringe patents at issue on the previous case as well as additional patents Apple issued since the earlier case was filed, Apple said. “Apple is filing this suit to put an end to Samsung’s continued infringement,” according to the complaint.

Samsung continues to “assert our intellectual property rights and defend against Apple’s claims,” its Seoul-based spokesman Nam Ki Yung said yesterday.

The two companies have filed at least 30 lawsuits against each other, according to Samsung. The conflict began in April, when Apple filed the first San Jose lawsuit claiming the Suwon, South Korean company’s Galaxy devices copied the iPhone and iPad.

The case is Apple Inc. v. Samsung Electronics Co. Ltd.,12- cv-00630, U.S. District Court, Northern District of California (San Jose). The previous case is Apple Inc. v. Samsung Electronics Co., 11-01846, U.S. District Court, Northern District of California (San Jose).

For copyright news, click here.

IP Moves

Sills Cummis & Gross Hires IP Litigator From Dickstein Shapiro

Sills Cummis & Gross PC hired John T. Gallagher for its IP practice group, the Newark, New Jersey-based firm said in a statement.

Gallagher, a litigator, joins from Washington’s Dickstein Shapiro LLP. Before he was a lawyer, he worked as a chemical engineer.

He’s represented clients in federal trial and appellate courts in disputes involving patents, trade secrets and unfair competition. His clients’ technologies have included medical devices, consumer products, prescription and over-the-counter drugs, antibiotics, vaccines, fuel cells, polymer processing, catalysts, fungicides, flexographic printing products, semiconductors and software systems.

He has an undergraduate degree in chemical engineering from Rensselaer Polytechnic Institute and a law degree from St. John’s University.

--With assistance from Aoife White in Brussels, Jeff Bliss in Washington, Joel Rosenblatt in San Francisco and Michael Bathon in Wilmington, Delaware. 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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