Bloomberg News

Smith & Nephew, USPTO, Nike, Dotcom:Intellectual Property

January 17, 2013

Smith & Nephew Plc (SN/) won an appeals court ruling reinstating an $85 million patent-infringement verdict against Arthrex Inc. over surgical anchors used in shoulder surgery.

A trial judge erred in overturning the jury verdict, the U.S. Court of Appeals for the Federal Circuit in Washington said in an opinion posted yesterday on its website. The case was remanded to the trial judge for further proceedings.

The dispute, first filed in 2004, is over devices that are anchored to a bone to repair tears in the rotator cuff or in the labrum, a fibrous ring in the shoulder socket. The June 2011 trial was the third in the case, and the jury found that Naples, Florida-based Arthrex knew that its anchor used steps similar to those covered by the patent.

“We see no reason to disturb that finding by the jury,” Circuit Judge Alan Lourie wrote for the 2-1 majority.

Circuit Judge Raymond Clevenger, in dissent, said the jury’s verdict won by London-based Smith & Nephew was “not supported by substantial evidence,” so he would have affirmed the trial judge’s decision in December 2011 to overturn the verdict.

“The reinstatement of the June 2011 jury award of $85 million for Arthrex’s infringement activities is affirmation of the innovation coming from Smith & Nephew,” Joe Metzger, a spokesman for Smith & Nephew, said by telephone. “We will continue to defend our intellectual property rights from infringement by others.”

Lisa Gardiner, a spokeswoman for Arthrex, didn’t immediately return a call and an e-mail seeking comment.

The case is Smith & Nephew Inc. v. Arthrex Inc., 2012-1265, U.S. Court of Appeals for the Federal Circuit (Washington). The lower court case is Smith & Nephew Inc. v. Arthrex Inc., 04cv29, U.S. District Court, District of Oregon (Portland).

USPTO, Smithsonian to Open ‘Innovation Pavilion’ in Washington

The U.S. Patent and Trademark Office, together with the Smithsonian Institution, have agreed to open an “Innovation Pavilion” in the 132-year-old Arts and Industries Building on the National Mall in Washington.

The building, presently closed for renovation, will reopen in 2014 and will feature exhibitions about American innovation and educational programs, the patent office said in a statement yesterday.

It will also be the site of recognition ceremonies highlighting the role patents play in supporting innovation.

The patent office and the Smithsonian will also jointly offer an Innovation Exposition in June at the patent office headquarters in Alexandria, Virginia.

The Arts and Industries Building, which opened in 1881, was the original home of the Smithsonian’s national museum. The building was designated a National Historic Landmark in 1971.

Samsung Galaxy Doesn’t Infringe Apple Design Rights, Court Rules

Samsung Electronics Co.’s “Galaxy” tablets don’t infringe the design rights for Apple Inc. (AAPL:US)’s iPad, a Dutch court ruled, according to a MacWorld report.

Apple’s registered “Community Design,” an EU intellectual property right, isn’t infringed by a number of products of the Korean technology company, the District Court of the Hague rules, according to MacWorld.

The court also ordered Cupertino, California-based Apple to pay Samsung’s litigation costs of 137,357 euros ($169,512), and warned the company it faces fines of as much as 100,000 euros a day if it tries to get in the way of the Galaxy sales, MacWorld reported.

The disputed design, registered with the E.U. in 2004, was also the subject of an unsuccessful Apple suit in the Netherlands in 2011, according to MacWorld.

For more patent news, click here.

Trademark

Ubisoft Goes After ‘Killing Day’ U.S. Trademark a Second Time

Ubisoft Entertainment SA (UBI), the French video-game company, filed an application to register “Killing Day” as a trademark, according to the database of the U.S. Patent and Trademark Office.

The application, which is for use of the mark with video- game software, was filed Jan. 4, two weeks after the chief executive officer of the National Rifle Association blamed violent video games for gun-related school violence, including the Dec. 14 killing of 20 children and six staff members at a Connecticut elementary school.

This application is the second the Montreuil, France-based games company has submitted for a “Killing Day” trademark. An earlier application, filed in May 2009, was declared abandoned in June 2012 because several procedural steps in the application process weren’t followed, according to patent office documents.

According to the new application, the mark is also to be used with electronic game software for mobile telephones and other portable devices.

On Jan. 13 the National Rifle Association released its own shooting-based video game -- “NRA: Practice Range” --available as a free download for mobile devices through Apple Inc.’s App Store.

Nike Awarded ‘Nike.Ru’ Domain Name in Russian Trademark Dispute

Nike Inc. (NKE:US), the Eugene, Oregon-based athletic-gear company, has been awarded the Nike.Ru Internet domain name by the Moscow Commercial Court, the Russian Legal Information Agency reported yesterday.

The court ruled that Stas Drugalyov, the Russian businessman who registered the name, hadn’t used it properly, Rapsi reported.

A lawyer for Nike told the court that the domain name owner hasn’t owned the trademark, and added that Drugalyov owns more than 100 other domain names related to well-known brands, Rapsi reported.

Drugalyov can appeal the ruling within the next 30 days, according to Rapsi.

Headwaters Becomes BearWaters to Avoid Trademark Battle

Headwaters Brewing Co. of Waynesville, North Carolina, is changing its name in the wake of a trademark dispute with a Pennsylvania brewery, the Smoky Mountain News reported.

Victoria Brewing Co. of Downingtown, Pennsylvania, registered “Headwaters” as a trademark in January 2012, and told the North Carolina brewery that it used the name for its Headwaters Pale Ale, according to the Smoky Mountain News.

Kevin Sandefur, one of the three owners of Headwaters, said that although his company had used the name first, it hadn’t sought a trademark because it didn’t have the expendable money - - $2,000 or more -- for the trademark application process, the newspaper reported.

The company name has been changed to BearWaters, and Sandefur told the Smoky Mountain News the process of settling the dispute has been a “great lesson in intellectual property protection for do-it-yourself and small business guys.”

New British Trademark Aims to Raise Plant IP Rights Awareness

The British Society of Plant Breeders and the Agricultural Industries Confederation trade groups will begin using a new trademark aimed at pointing up the importance of plant-related IP rights, the U.K.’s Horticulture Week reported.

The new Plant Variety Rights mark, which features the letters “PVR” above the phrase “protecting innovation,” is to be used by seed companies and plant breeders and will show up on as variety of media, including seed bags, websites and tags indicating plant varieties, according to Horticulture Week.

The PVR campaign is part of attempts to emphasize the importance of plant breeding and quality seed supply, Horticulture Week reported.

Paul Taylor, chairman of the Agricultural Industries Confederation Seed Sector, told Horticulture Week the mark will be used to remind the public of the “research, innovation and independent evaluation behind each new variety and bag of purchases seed.”

For more trademark news, click here.

Copyright

Dotcom Set to Unveil Megaupload Successor Amid U.S. Indictment

Kim Dotcom, whose Megaupload.com website accounted for 4 percent of world Internet traffic before being shut down last year on U.S. copyright infringement charges, plans to unveil a new, encrypted file-sharing site in New Zealand in a snub to U.S. authorities.

Dotcom has scheduled a news conference on Jan. 20 at his NZ$30 million ($25 million) rented home in an Auckland suburb, promising to introduce a way to securely store and transfer confidential information.

The U.S. Department of Justice is seeking Dotcom’s extradition from New Zealand to face racketeering, money laundering and copyright-infringement charges. Prosecutors say his Megaupload site generated more than $175 million in criminal proceeds from the exchange of pirated films, music, book and software files. Dotcom, who has denied any wrongdoing, faces as long as 20 years in prison if convicted.

The German-born Dotcom, 38, who changed his name legally from Kim Schmitz, has suggested in postings on his personal website that his encryption will ensure the security of files in cloud storage and prevent governments from seeing any content.

A screenshot of the new Mega site shows an encryption generator, known as a 2048-bit RSA public/private key, that creates a unique alpha-numeric code used to unlock a file or a message. According to DigiCert Inc., the Lindon, Utah-based provider of Internet Security Certificates, cracking a 2048-bit RSA SSL code using a standard desktop computer would take 500,000 times longer than the age of the universe, which is about 13 billion years old.

The new site promises to allow users to encrypt and decrypt data in their Internet browser during uploads and downloads.

“I had a cool dream,” Dotcom wrote on Twitter Jan. 1. “All nations that are being spied on by the US govt started using #Mega & I won the Nobel Encryption Prize.”

Neither Dotcom’s bail conditions nor U.S. law precludes him from engaging in a lawful business, according to his lawyer Ira Rothken. The court was informed of the new website and no legal objections were raised, Rothken said.

The extradition hearing in Auckland was postponed last month from March to August. New Zealand High Court Justice Helen Winkelmann ruled on June 28 that warrants police used to search Dotcom’s home, ahead of his arrest, were overly broad and invalid. In December, Winkelmann granted Dotcom permission to sue New Zealand’s spy agency for intercepting his communications.

The New Zealand case is Between Kim Dotcom and Attorney General. CIV2012-404-001928. High Court of New Zealand (Auckland). The U.S. case is: USA v. Dotcom. 12-cr-00003. U.S. District Court for the Eastern District of Virginia (Alexandria).

For more copyright news, click here.

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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