Bloomberg News

Pfizer, Callaway, Boulud, Megaupload: Intellectual Property

April 16, 2012

Pfizer Inc. (PFE:US), the world’s largest drugmaker, and its business partners OSI Pharmaceuticals Inc. and Genentech Inc. sued Roxane Laboratories Inc. over its plans to market generic copies of the lung-cancer drug Tarceva.

Pfizer, based in New York; OSI, a unit of Tokyo-based Astellas Pharma Inc. (4503); and Genentech, a unit of Roche Holding AG (ROG) of Basel, Switzerland, contend Ingelheim, Germany-based Boehringer AG (0205298D)’s Roxane has applied to the U.S. Food and Drug Administration for permission to sell its version of Tarceva before the patents expire.

The patent owners, Pfizer and OSI, and licensee Genentech “will be substantially and irreparably harmed” if a judge doesn’t stop the infringement, their lawyers said in a complaint filed in federal court in Wilmington, Delaware.

Roxane, based in Columbus, Ohio, is facing another patent suit filed April 10 in the same court. In that case, drugmaker Abbott Laboratories contends Roxane is infringing patents for the HIV drug Norvir.

Angela Chirico, a spokeswoman for Roxane, didn’t have an immediate comment on the lawsuit, saying she needed to confer with Roxane officials.

The case is OSI v. Roxane, 1:12-cv-00465, U.S. District Court, District of Delaware (Wilmington).

Callaway, Acushnet Settle All Golf-Related Patent Disputes

Callaway Golf Co., maker of the “Big Bertha” golf clubs, and Fila Korea Ltd.’s Acushnet unit have settled settled all patent disputes between the two sporting goods companies, according to a joint statement issued April 13.

No money changed hands in the settlement, the two companies said. Under the agreement each company will have rights to make golf ball and golf club products under patents owned by the other.

Other details of the settlement weren’t disclosed. The two companies have been involved in patent disputes over golf balls since 2006, according to Bloomberg data.

Fila acquired Acushnet, the maker of Titleist golf equipment in May 2011 from Fortune Brands Inc., now Beam Inc.

For more patent news, click here.

Trademark

Daniel Boulud’s Restaurant Group Sues Buffalo Bar

A restaurant company affiliated with celebrity chef Daniel Boulud sued a Buffalo, New York bar for trademark infringement.

Boulud’s Manhattan-based Dinex Group LLC accused the operators of Duke’s Bohemian Grove Bar of infringing the “DBGB” trademark it used with restaurant and bar services. According to the complaint filed April 10 in Manhattan, Dinex has used the mark continuously since June 2009.

One of the Dinex properties in New York is the DBGB Kitchen & Bar. Among the others are Daniel and Café Boulud. Boulud was awarded three Michelin stars and the James Beard Award for an outstanding restaurant for Daniel.

Dinex said it contacted the Buffalo bar’s owners in August 2010 and asked them to quit using the “DBGB” designation. According to the complaint, counsel for Buffalo group said in September 2010 that it would quit using “DBGB’ on its signs and advertising.

The suit was filed because Dinex ‘‘became aware’’ that the Buffalo group was still using the DBGB designation.

The owners of the Buffalo property didn’t immediately respond to an e-mailed seeking comment on the complaint.

Dinex asked the court to order the defendants to halt their alleged infringement and for an order for the seizure and destruction of all offending promotional materials. Additionally, the company seeks awards of the Buffalo group’s profits flowing from the alleged infringement, money damages, attorney fees and litigation costs.

The restaurant company asked that the damages be tripled and that additional damages be levied to punish the defendants for their actions.

The case is Dinex Group LLC v. Pat Duquin, 1:12-cv-02767- LTS, U.S. District Court, Southern District of New York.

‘I Believe You Zimmerman’ Registration Sought by San Franciscan

A San Francisco resident has applied to register ‘‘I believe you Zimmerman” as a trademark, according to the database of the U.S. Patent and Trademark Office.

The application, filed March 30, specifies that Lawrence Sekara plans to use the mark on aloha shirts, camouflage shirts, athletic uniforms, apparel for dancers, beer mugs, caps and hats, bumper stickers and stickers for helmets.

Sekara told the Smoking Gun gossip website that while he has no affiliation with George Zimmerman, that he’d share some of the revenue from the sale of the trademark items with Zimmerman.

George Zimmerman is the Florida resident who was charged with second-degree murder April 11 in connection with the shooting of 17-year-old Trayvon Martin. He shot Martin on Feb. 26 in Sanford, a central-Florida town of 54,000 people north of Orlando.

Florida’s “Stand Your Ground” law enables individuals who feel threatened in a public place to “meet force with force,” rather than back away, a statute that strengthens any traditional self-defense assertion, criminal attorneys said.

The law prevented police from arresting Zimmerman in February, officials said at the time, and may play a role in derailing the prosecution, according to Florida defense lawyers, who said the defendant may be able to raise the issue both before, and during, any trial.

According to the Smoking Gun website, Sekara said he thought that the public “jumped to too many conclusions” about the shooting. He has also registered a domain name, Ibelieveyouzimmerman.com that hasn’t gone live.

For more trademark news, click here.

Copyright

Megaupload Data Ruling Deferred by Judge for Further Talks

A U.S. judge deferred a decision on whether millions of gigabytes of data belonging to users of Megaupload.com should be preserved or the data-storage company that owns the servers where it’s housed can delete it.

U.S. District Judge Liam O’Grady, at a hearing April 13 in Alexandria, Virginia, told federal prosecutors they have two weeks to work out an agreement with parties claiming an interest in the massive cache of data that became inaccessible when law enforcement agents shut down Megaupload in January.

The parties include attorneys for the Motion Picture Association of America, who said the files contain the largest collection of copyright-infringed material in the world, as well as attorneys for Megaupload, who argue they need the data to defend the company’s directors against charges including criminal copyright infringement.

Prosecutors this month said in court papers they already had a large sampling of the data cache and will provide it to defense attorneys. They contend the data need not be preserved for purposes related to the criminal prosecution.

Julie Samuels, an attorney for the Electronic Frontier Foundation, an Internet civil liberties group, argued that the government should establish a system through which those users could file affidavits and claim their data.

Such a system would be difficult. The more than 1,000 servers on which the data had been stored have been unplugged and shipped to a warehouse in Virginia, according to Marc Zwillinger, an attorney for Carpathia Hosting Inc., the Dulles, Virginia-based hosting company that Megaupload paid to store its users’ data.

Carpathia was paid $35 million over several years by Megaupload, prosecutors said. Zwillinger said Carpathia simply provided a platform to its client, and should no longer be required to pay for the data’s upkeep.

Carpathia agreed to sell the servers to Megaupload for $1.2 million, a cost the company was willing to incur as part of the defense of Dotcom and other company directors, Zwillinger said.

Jay Prabhu, the chief of the cybercrime unit in the U.S. attorney’s office in Alexandria, told O’Grady that the MPAA objects to returning the copyright-infringed material to a company that helped illegally disseminate it.

Investigators in January executed more than 20 search warrants in the U.S. and eight other countries and seized about $50 million in assets associated with Megaupload.com.

The case is U.S. v. Dotcom, 1:12-00003, U.S. District Court, Eastern District of Virginia (Alexandria).

For more copyright news, click here.

Trade Secrets/Industrial Espionage

Ocean Tomo, Former Official Settle Trade Secret Dispute

The trade secrets case that Ocean Tomo LLC, a self- described intellectual property merchant bank, filed against the former president of its PatentRatings unit has settled, according to an April 10 court filing.

The suit, filed in federal court in Los Angeles Jan. 27, accused Steve Lee of downloading Ocean Tomo data from a company laptop and saying he would disclose this information to Jonathan Barney and Barney’s company.

Lee was president of PatentRatings until his resignation in September. Before he came to Ocean Tomo, Lee was a management consultant for the Boston Consulting Group, and before that, a design engineer at Hughes Aircraft Co.

Barney, a patent lawyer who was the inventor of the Patent Ratings system, left Ocean Tomo in February 2011, following a dispute over the company’s expansion plans, according to a posting on the Intellectual Asset Management magazine blog.

Barney is the holder of patent 6,556,992, which covers the patent-rating system that he had licensed to Ocean Tomo. He was sued by Ocean Tomo in Illinois state court Jan. 27, accusing him of breach of contract, and destruction of the company’s confidential information.

According to an April 3 court order, Lee is barred from disclosing Ocean Tomo trade secrets. This includes “attorney- client communications and attorney work-product of Ocean Tomo” related to a dispute with Patent Ratings that is presently in proceedings before the American Arbitration Association.

The court excluded from its order information that Lee had that he could demonstrate was known to him from sources other than Ocean Tomo, that he developed independently without violating his employment agreement, or that he could demonstrate is generally known to technology or intellectual property professionals.

The case against Lee is Ocean Tomo LLC v. Steve Lee, 8:12- cv-00146-JVS-MLG, U.S. District Court, Central District of California (Santa Ana).

IP Moves

Suzanne Barnett Named Chief Judge, Copyright Royalty Board

The Librarian of Congress has named a state court judge from Washington State as chief judge for the copyright royalty board.

Suzanne Barnett, who presently services as a King County Superior Court Judge, will take her new post May 20, according to a statement from the Library of Congress.

The board sets rates for sound recording performance royalties for Internet and satellite royalties, and rates paid to the various collecting societies and the distribution of funds collected from cable and satellite television for rebroadcast of copyrighted programming on broadcast television.

Barnett is appointed to a six-year term.

She has an undergraduate degree from the College of William and Mary and a law degree from Washington and Lee University.

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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