Nintendo Co. (7974) fended off a second U.S. patent-infringement case this month against its Wii video-game system, adding to a trend of companies fighting royalty demands and winning.
Nintendo didn’t infringe licensing company Copper Innovations Group LLC’s patent for a way a computer interacts with a device such as a joystick, the Court of Appeals for the Federal Circuit in Washington ruled yesterday. On May 13, the court said the Wii didn’t infringe a different licensing company’s patent for a system to track a game user’s position.
Companies including Kyoto, Japan-based Nintendo, discount retailer Overstock.com Inc. and electronics seller Newegg Inc. are winning cases brought by patent owners who rather than using their inventions to make products, are seeking royalties from those that make devices or provide services.
“Our policy is if you come after us with spurious claims, we’ll fight you because we’re not settling,” said Mark Griffin, general counsel for Salt Lake City-based Overstock.com. (OSTK:US) “Bullies need to have their noses bloodied once in a while.”
Olivia Luk, a lawyer at Niro, Haller & Niro in Chicago who argued the May 6 appeal on behalf of Copper, declined to comment on the case.
It’s not always the patent owner that gets bloodied. Nintendo lost a jury verdict in March in a case brought by a former Sony Corp. engineer over three-dimensional images in Nintendo’s 3DS gaming system.
Officials with the electronics company didn’t have an immediate comment on yesterday’s ruling. In a statement following its May 13 victory against Motiva LLC, Richard Medway, Nintendo of America’s general counsel, said, “Nintendo has a passionate tradition of developing innovative products while respecting the intellectual property rights of others.”
Overstock.com and Newegg, based in City of Industry, California, won a May 15 decision from the Federal Circuit that an Alcatel Lucent SA patent on online shopping was invalid. In a separate case over e-commerce patents, Newegg won a January appeals court ruling invalidating patents that had also been asserted against Oracle Corp. and EBay Inc.
Also this month, the appeals court sided against patent-licensing firms in cases against mobile-phone companies including Verizon Wireless and Sprint over telephone marketing, against Barnes & Noble Inc. (BKS:US) over its Nook e-reader and against Bayerische Motoren Werke AG (BMW) over its financial-services unit.
Teva Loses Appeals Court Bid to Revive Patent on Seasonique
Teva Pharmaceutical Industries Ltd. (TEVA) lost an appeals court bid to revive a patent it owns for the birth-control pill Seasonique.
The U.S. Court of Appeals in Washington, without issuing a formal opinion, affirmed a lower court ruling that the patent is invalid. The ruling is a victory for Mylan Inc. and Lupin Ltd. The patent, which is due to expire in 2024, also was the subject of a Teva suit against Actavis Inc.
The case is Teva Women’s Health Inc. v. Lupin Ltd., U.S. Court of Appeals for the Federal Circuit, 12-1577.
P&G Sues Utah Dental Company Over Tooth-Whitener Patents
Procter & Gamble Co. (PG:US), maker of Crest toothpaste, Head & Shoulders shampoo and Cascade dishwasher detergent, sued a Utah dental-products company for patent infringement May 20.
The lawsuit, filed in federal court in Cincinnati, accused CAO Group Inc. of infringing three patents related to tooth-whitening. According to the complaint, CAO Group’s Sheer White Whitening Films, Sheer DesenZ Desensitizing Films and Sheer FluorX Fluoride Treatment Films infringe three patents.
In dispute are patents 5,989,569, issued in November 1999; patent 6,045,811, issued in April 2000; and 7,122,199, issued in October 2006.
Cincinnati-based P&G seeks court orders barring further infringement of its patents and awards of money damages, litigation costs and attorney fees. The consumer-products company asked the court to triple the damages to punish CAO Group, of West Jordan, Utah, for its actions.
In a May 21 statement, CAO Group’s General Counsel Terry Jones said his company “is respectful of intellectual property rights” and will defend its products. P&G’s claims are without merit and CAO “developed and innovated its own proprietary technology” for the accused products, Jones said.
The case is Procter & Gamble Co. v. CAO Group Inc., 13-cv-00335, U.S. District Court, Southern District of Ohio (Cincinnati).
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M&S Loses Trademark Case Against Interflora Over Online Ads
Marks & Spencer Group Plc (MKS), the U.K.’s largest clothing retailer, lost a court ruling in London over whether it used Interflora Group Ltd.’s trademarked terms to trigger flower delivery advertisements on search engines.
Judge Richard Arnold ruled yesterday that the London-based retailer can’t use the keywords, which include Interflora and Interflora Delivery, to drive customers to its website through advertisements on Google Inc. (GOOG:US)’s search engine.
“A significant proportion of the consumers who searched for ‘interflora’ and the other signs, and then clicked on M&S’s advertisements displayed in response to those searches, were led to believe, incorrectly, that M&S’s flower delivery service was part of the Interflora network,” the judge said in his written ruling.
Interflora sued M&S in 2008 for violating its trademark rights in the U.K. In 2009, the court sent the case to the European Union’s Court of Justice for guidance on how to interpret the bloc’s trademark rules in Internet search cases. The EU’s top tribunal passed the case back to the U.K. for a final decision in 2011.
“When the decision was referred back from the EU, trademark owners were fairly negative about their prospects,” Paula Flutter, a trademark attorney at EIP Partnership LLP who isn’t involved in the case, said in a telephone interview. Yesterday’s ruling “will give them optimism that cases can go in their favor.”
M&S is disappointed by the judgment and is considering its options, Emma Johnson, a spokeswoman for the retailer, said in an e-mailed statement.
“Keyword advertising is a very powerful tool and so it is vital for consumer protection that Internet search results take consumers directly to the brands they are looking for,” Rhys Hughes, Interflora’s president, said in an e-mailed statement.
The U.K. flower delivery market was worth 2.2 billion pounds ($3.34 billion) a year from 2008 to 2012, Arnold said in his ruling.
Khloe Kardashian Told Her T-Shirts Too Similar to N.Y. Logo
Khloe Kardashian, a member of the celebrity Kardashian family, was sent a trademark-related cease-and-desist letter by New York state, Associated Press reported.
The letter addressed a similarity between an image used on Khloe Kardashian’s line of t-shirts and the logo of a New York state farm program, according to AP.
The disputed t-shirt design comprises the Statue of Liberty, rows of crops and the text “Rich Soil New York,” according to the wire service.
The state design also has crop rows, the Statue of Liberty, and, in a font similar to that used on the Kardashian t-shirts, the phrase “Pride of New York,” AP reported.
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Housing Upswing Bringing More Home-Design Copyright Registration
An improvement in the new-housing market is causing a parallel increase in copyright registration for home designs, Florida’s Fort Myers News-Press reported.
Registration efforts that had been almost nonexistent since the housing bubble crash five years ago began to turn around about six months ago, according to the newspaper.
Tim Rose, president of Fort Myers-based Rutenberg Homes Inc., told the News-Press he was surprised there were no copyright-infringement cases for his company to pursue during the downturn because in a recession, builders sometimes do desperate things they wouldn’t consider during boom times.
Before the crash, there was a lot of copying that resulted from potential homebuyers taking a brochure from one home designer to a contractor and asking for that home to be built, according to the newspaper.
Kenya Copyright Board Moves to Halt Cricket-Match Programming
The Kenya Copyright Board raided a local pay-television company and impounded its equipment, alleging it had been used for copyright infringement, the Star newspaper of Nairobi reported.
The company was accused of using the equipment to distribute Indian Premier League cricket matches without authorization, according to the newspaper.
The content was distributed through the company’s cable-television platform, the Star reported.
The distribution took place in both Mombasa and Nairobi, according to the Star.
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Trade Secrets/Industrial Espionage
Florida Hospital Head Says Negotiated Rated to Be Made Public
The chief executive officer of Mount Sinai Medical Center in Miami agreed to reveal the negotiated rates of payment it receives from insurers, the Washington Post reported.
Hospitals and insurers usually treat these negotiated rates -- typically lower than so-called “sticker rates -- as a closely guarded secret, according to the Post.
The hospital will post its prices relative to Blue Cross and Aetna and challenge other area hospitals to do the same, CEO Steve Sonereich said in an interview on a local radio station, the Post reported.
Baptist Health South Florida was asked it if would follow suit and refused, according to the newspaper.
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