Bloomberg News

Apotex, Google, Lofgren, Uhlig: Intellectual Property

November 21, 2012

Apotex Inc. asked a judge to rule that its plan to market a generic version of the blood-pressure medicine Benicar won’t infringe patent rights held by drugmaker Daiichi Sankyo Co. or its American unit.

In a petition filed yesterday in federal court in Chicago, closely held Apotex said a finding of non-infringement on one of two relevant patents will let it compete sooner with Mylan Inc., the maker of generic drugs that also intends to sell a version of the medication.

Mylan, which lost a challenge to the other patent in 2010, has exclusive rights to sell its version of the drug for at least 180 days after that patent expires because it was the first to seek the U.S. Food and Drug Administration’s permission to do so.

Absent a ruling in its favor on a patent it claims Daiichi Sankyo let lapse in 2009, it will be deprived of sales while the public is deprived of its competition with Mylan, Toronto-based Apotex said.

Mylan is based in Canonsburg, Pennsylvania. Daiichi Sankyo is based in Tokyo. Its U.S. unit and co-defendant, Daiichi Sankyo Inc., is based in Parsippany, New Jersey.

The case is Apotex Inc. v. Daiichi Sankyo, 12-cv-9295, U.S. District Court, Northern District of Illinois (Chicago).

For more patent news, click here.

Trademarks

U.S. Said to Waver on Antitrust Case Against Google on Search

Google Inc. (GOOG:US) may skirt the most serious antitrust allegations under investigation by the U.S. as regulators waver on whether they can prove consumers are hurt by the way the company ranks its search results, three people familiar with the matter said.

Federal Trade Commission officials are unsure they have enough evidence to sue Google successfully under antitrust laws for giving its own services top billing and pushing down the offerings of rivals, said the people, who declined to be identified because the discussions aren’t public. Regulators are also looking at whether the ranking system’s benefits to consumers outweigh any harm suffered by rivals including NexTag Inc. and Kayak Software Corp. (KYAK:US), the people said.

The agency is under pressure to extract concessions from Google after winning a battle with the Justice Department’s antitrust division over which regulator would probe the world’s most popular search engine. The complaints about skewed search results represent a far greater threat to Google’s business than any of the FTC’s other concerns, said Keith Hylton, a Boston University law professor who has written several books on antitrust topics.

“The only part of the case that goes to the heart of what Google does is the search-biasing claim,” Hylton said. “If that drops out of the FTC’s case, then you have something that doesn’t seem to be all that interesting in terms of antitrust law.”

FTC Chairman Jon Leibowitz told Google to propose a resolution to a host of antitrust concerns in the coming days or face a lawsuit, two people familiar with the matter said last week.

The issues include Google’s exclusive agreements to provide search services to online publishers and allegedly misusing patents to try to block rivals’ smartphones from coming to market. The FTC also is treating seriously complaints that Google has used customer reviews from other websites without permission, the people said.

“We continue to work cooperatively with the Federal Trade Commission and are happy to answer any questions they may have,” said Niki Fenwick, a spokeswoman for Mountain View, California-based Google. She declined to comment specifically on the search allegations.

Peter Kaplan, an FTC spokesman, declined to comment on the probe.

A final vote by the agency’s five commissioners on whether to file a lawsuit, and what its scope should be, is expected before the end of the month, the people said.

Ramsay Seeks U.K. Rights to Batali Restaurant Name Spotted Pig

Gordon Ramsay has applied for the U.K. trademark on The Spotted Pig, the name of the New York gastropub whose celebrity owners include the musicians Jay-Z and Bono and the chef Mario Batali.

The British television chef’s company, Gordon Ramsay Holdings International Ltd., submitted the application on Oct. 2 and it was published for comment on Nov. 9, according to the U.K. government’s Intellectual Property Office website.

Batali and the Spotted Pig’s chef-owner April Bloomfield didn’t immediately respond to voice-mails seeking comments on the application. Gordon Ramsay Holdings had no comment.

Anyone who opposes the U.K. application has two months in which to enter an objection. This wouldn’t be the first time a Batali restaurant has been flattered in this way. London has a Babbo, which is the name of one of Batali’s venues in New York.

“We didn’t have a trademark for England,” Batali said in an interview last year. “You need a specific one for England. We had one for Italy, we have one for Spain, we have one in Thailand. I don’t know why we didn’t have one in London.”

Ramsay’s application was earlier reported by the Sunday Mail, in Scotland, which cited an unidentified spokesman for the chef’s company as saying it regularly seeks trademarks and there were no current plans beyond that.

Bloomfield and the Spotted Pig’s founder, Ken Friedman, have expressed an interest in opening a restaurant in London.

“I would love to come back and open somewhere,” Bloomfield said in an interview in October. “Ken and I talk about it all the time. I don’t know if it would be like the Pig.”

Batali was cited in the Observer in January 2009 as saying he wouldn’t accept bookings from Ramsay’s office. That was after the U.K. chef called Batali “Fanta Pants.” The New Yorker said Ramsay would need to call him personally for a table.

“I’ve never met him face to face,” Batali said in the Bloomberg interview. “We’ve traded insults in the papers a couple of times, not because we know each other or even not like each other. Our medias just pushed us apart. I’m sure I would like him in person.”

Batali has other detractors. He apologized in November 2011 after comparing bankers to Hitler and Stalin. Ramsay’s last known brush with a pig was when he compared the Australian TV reporter Tracy Grimshaw to one. Ramsay also apologized.

For more trademark news, click here.

Copyright

Lofgren Seeks Help from ‘Free Speech Warriors’ on Copyright Bill

U.S. Representative Zoe Lofgren has turned to Reddit, a social-network website, for assistance in formulating intellectual-property legislation.

Lofgren, a Democrat whose district comprises much of California’s Silicon Valley, specifically asked Reddit users to look at the issue of Internet domain-name seizure in connection with copyright-infringement cases.

She said she was giving “Internet policy experts and free speech warriors” an opportunity to weigh in on an issue that has raised the ire of many website owners.

More than 700 websites have been seized over allegations of copyright infringement by the U.S. Justice Department and U.S. Immigration and Customs Enforcement since 2010, according to a background statement Lofgren released Nov. 19.

Lofgren said she is concerned that some of the domain-name seizures caused the removal -- without notice or a hearing for their owners -- of websites containing lawful content.

Such seizures amount to “prior restraint of free expression” and “impair legitimate businesses that are unfairly targeted and discourage online entrepreneurship,” she said. Lofgren said she is seeking a way to require the government to provide notice and an opportunity for website owners to defend themselves in advance of domain-name seizure.

Tolkien Estate Sues Warner Bross Over ‘Lord of the Rings’ Games

The estate of J.R.R. Tolkien sued Time Warner Inc.’s Warner Bros. Entertainment unit, alleging it doesn’t have the right to license gambling games with “Lord of the Rings” characters and story elements.

“Not only does the production of gambling games patently exceed the scope of defendants’ rights, but this infringing conduct has outraged Tolkien’s devoted fan base, causing irreparable harm to Tolkien’s legacy and reputation and the valuable goodwill generated by his works,” the estate said in a complaint filed Nov. 19 in federal court in Los Angeles.

Under the merchandising agreement between the estate and Warner Bros., the movie studio and its subsidiaries have only the right to sell and license tangible objects, according to the complaint. These rights don’t give Warner Bros. permission to license online slot machine games and casino slot machines based on the late author’s books, the estate said.

The estate, which also says it retains the rights to any downloadable-only video games based on the books, accuses Warner Bros. of copyright infringement and breach of contract and asks for at least $80 million in damages.

Warner Bros. spokesman Paul McGuire had no immediate comment on the lawsuit.

Warner Bros.’ New Line Cinema and Metro-Goldwyn-Mayer Inc. will release “The Hobbit: An Unexpected Journey” on Dec. 14. It is the first of three planned movies based on Tolkien’s “Hobbit.” The movie trilogy based on “Lord of the Rings” generated $6 billion in global revenue, according to the estate’s complaint.

The case is Fourth Age Ltd. v. Warner Bros., 12-9912, U.S. District Court, Central District of California (Los Angeles.)

For more copyright news, click here.

Trade Secrets/Industrial Espionage

Uhlig Wins $4.6 Million Trade-Secret Misappropriation Award

Uhlig LLC, a Kansas-based publishing house, was awarded $4.6 million in a trade-secrets case.

A federal court in Greenville, South Carolina, said yesterday that Uhlig was entitled to recover the damages, attorney fees and litigation costs from John Adam Shirley and Prism Content Solutions LLC.

Uhlig sued in 2008 after acquiring Cox Custom Media, where Shirley was the highest-paid employee. Uhlig and Shirley held talks over hiring him as a consultant and independent contractor, according to court papers.

Instead, Shirley left the company and took intellectual property, including a customer database, Uhlig said. He then began calling on clients and passed the content off as his own, Uhlig said.

In December, a jury said that Uhlig proved its trade-secret theft claims against both Shirley and Prism, and that he breached an employment agreement, violated his duty of loyalty and interfered with Uhlig’s customer relationships.

In addition to making the damages awards, the court ordered Shirley and Prism to quit using Uhlig trade secrets, which were related to custom publishing services for apartments and senior- living facilities.

The case is Uhlig LLC v. Shirley, 08-cv-01208, U.S. District Court, District of South Carolina (Greenville).

IP Moves

USPTO Hires Google’s Michelle Lee to Head Silicon Valley Office

The U.S. Patent and Trademark Office hired Michelle Lee to head its new California satellite office in Silicon Valley.

Lee is the former deputy general counsel and head of patents and patent strategy at Google Inc. She previously was a partner at Mountain View, California’s Fenwick & West LLP.

Before she went to law school, Lee worked as a computer science researcher at Hewlett-Packard Co. (HPQ:US) and the Massachusetts Institute of Technology’s Artificial Intelligence Laboratory.

She served as a judicial clerk for U.S. District Judge Vaughn Walker and Judge Paul Michel of the U.S. Court of Appeals for the Federal Circuit, the Washington-based court that hears appeals of patent cases.

Lee’s hiring is part of the patent office’s push to improve the quality of software patents, David Kappos, the office’s director, said yesterday in a speech at a conference sponsored by the Center for American Progress.

Lee has a bachelor’s degree in electrical engineering and a master’s degree in computer science from MIT, and a law degree from Stanford University.

To contact the reporter on this story: Victoria Slind-Flor in San Francisco at vslindflor@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net


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