Bloomberg News

Medtronic, Genes, ‘Happy Birthday’: Intellectual Property (1)

June 17, 2013

Medtronic Inc. (MDT:US)’s aortic valve, inserted into the heart via a catheter, doesn’t violate Edwards Lifesciences Inc. (EW:US)’s Cribier patent, the German District Court of Mannheim ruled.

The Cribier patent invoked doesn’t cover the Medtronic CoreValve device targeted in the case, Stefanie Voelker, a court spokeswoman, said in a telephone interview. There are two more challenges pending in Germany covering different patents that will be resolved later this year or in early 2014.

Medtronic generates about $75 million, or 5 cents in earnings per share, from CoreValve’s sales in Germany, said Danielle Antalffy, an analyst with Leerink Swann in New York. It would have been a “significant windfall” for Irvine, California-based Edwards if the ruling had gone the other way, with an injunction against Medtronic, that could have added 25 cents to 30 cents a share to Edwards’ annual earnings.

The news is “a minor negative for Edwards, as we believe some investors had started to factor in a potential infringement decision and injunction against Medtronic,” Antalffy wrote in a note to clients June 13. “In Germany, where patent law is different than in the U.S., a ruling of patent infringement results in an immediate injunction, which would result in removal of Medtronic’s CoreValve from the German market.”

Edwards is unlikely to win either of the remaining patent decisions, said Larry Biegelsen, an analyst with Well Fargo in New York. While Edwards was able to protect its Andersen patents in the U.S., it wasn’t successful in Germany, he wrote in a note to investors.

“Therefore, we think there is no guarantee Edwards will prevail” in either of the ongoing cases in Germany, he wrote.

Gene Patent Ruling Triggers Race to Market Cancer Risk Scans

Companies and a university are moving to offer cheaper and broader genetic testing for breast cancer risk to a growing group of women, following a U.S. Supreme Court ruling that ended Myriad Genetics Inc.’s (MYGN:US) monopoly over DNA that vastly raises odds for the disease.

Within hours of the decision, the University of Washington and Ambry Genetics, a closely held company in Aliso Viejo, California, said they would immediately offer expanded testing that included the BRCA1 and BRCA2 genes, which Myriad has had under patent since the late 1990s. Quest Diagnostics Inc. (DGX:US) said it would sell testing for the genes later this year.

By invalidating key parts of Myriad’s patents, the court has removed a bar that prevented labs using new technology from developing and selling broader one-time tests that search for all known cancer risks, including the BRCA genes, geneticists said. It could also mean lower prices for the screening, which can cost as much as $4,000 for Myriad’s most comprehensive version of its BRCA cancer gene test.

The bad BRCA1 and BRCA2 genes, the most common cause of hereditary breast and ovarian cancer, are present in roughly 1 in 400 women and give women an elevated risk of ovarian cancer as well as a higher breast cancer risk.

As a result of the Supreme Court’s ruling last week, women can now undergo one-time testing for a wide band of genes that have been linked to breast and other cancers, said Mary-Claire King, the University of Washington geneticist who first proved that a single gene could vastly raise breast cancer risk, leading to the discovery of BRCA1.

The U.S. Patent and Trademark Office issued a memorandum following the ruling that ordered its examiners to reject patent claims on isolated DNA, saying the high court ruling “significantly changes the office’s examination policy.” Further guidelines will be issued once the agency reviews the decision, according to the memo signed by Andrew Hirshfeld, deputy commissioner for patent examination policy.

“We don’t expect today’s decision to impact our business operations,” Ronald Rogers, a spokesman for Myriad, said last week in a telephone interview. The Supreme Court opinion doesn’t affect the vast majority of the company’s patent claims on the tests for the two breast cancer genes, he said.

For more patent news, click here.

Trademark

Chinese Trademark Application Rose 10.6 Percent in Early 2013

Trademark applications in China during the first four months of 2013 rose 10.6 percent over the number filed in the same period last year, Xinhua reported.

By the end of 2012, China led the world in the number of registered trademarks with 6.4 million, according to Xinhua.

Li Junchen, deputy director of the State Administration for Industry & Commerce, said that only a few Chinese trademarks are internationally competitive, Xinhua reported

He told Xinhua that China needs more world-famous trademarks and “a market environment for fair competition” to become a world power in trademarks.

HomeVestors Steps Up Trademark Enforcement in Florida, Texas

HomeVestors of America Inc., a closely held real estate franchise company, said in a statement it has initiated enforcement action against more than 30 trademark infringers in the first six months of 2013.

The Dallas-based company said through its enforcement activities, it has been transferred three Internet domain names, and won three Uniform Domain Name Dispute Resolution Policy proceedings against infringers who incorporated the company’s trademarks into their domain names without authorization.

Among the company’s registered U.S. trademarks are “ugly opportunities,” “we buy ugly houses,” “the ugliest house of the year,” and “Ugly’s OK,” according to the database of the U.S. Patent and Trademark Office.

The company said the highest frequency of instances in which its trademarks have been used without authorization are south Florida, Houston and San Antonio, so it is presently focusing its enforcement activities in those areas.

HomeVestors’ franchisees buy and rehabilitated residential properties.

Trendsettah Sues Florida Competitor Over Cigar Packaging, Marks

Trendsettah USA Inc., the maker of Splitarillos flavored cigars, claims its trademarks are infringed by a maker and seller of a competing product and is seeking at least $2 million in damages.

Miami-based J.A. Tobacco Corp.’s Ziparillo cigars have copied “the entire look and feel” of the Splitarillos product, Trendesettah said in the infringement complaint filed June 11 in federal court in Los Angeles.

According to court papers, both companies’ products are packaged in similar-looking and both sell for three cigars for 99 cents. Both brands’ products come in fruit-flavored versions, with Splitarillos selling blueberry, pineapple, grape-flavored cigars, and Ziparillos coming in berry and grape.

Trendsettah, of Mission Viejo, California, said the Ziparillo packaging uses a font and color of lettering that is confusingly similar to its own. The size and shape of the Ziparillo packaging is “virtually identical” to Splitarillo’s, according to court papers. Ziparillo ads contain an image of an eagle that is very much like the one in Splitarillo’s advertising, the company claims.

Trendsettah asked the court to bar J.A. Tobacco from the use of the Ziparillo name, and from using infringing packaging design. It also seeks an order for the seizure and destruction of all “misleading and confusingly similar material” related to Ziparillos, and asks for awards of profits the Florida company derived from its alleged infringement.

Additionally, Trendsettah asked for awards of $2 million in damages, and litigation costs and attorney fees.

J.A. Tobacco didn’t respond immediately to an e-mailed request for comment.

The case is Trendsettah USA Inc. v. J. A. Tobacco Corp., 2:13-cv-04194-BRO-PJW, U.S. District Court, Central District of California (Los Angeles).

For more trademark news, click here.

Copyright

Time Warner Unit’s ‘Happy Birthday to You’ Copyright Challenged

Time Warner Inc. (TWX:US)’s Warner/Chappell Music unit was sued by a company seeking “Happy Birthday to You” be declared in the public domain and ordering the publisher return licensing fees it has collected in connection with the song.

According to the complaint filed June 13 in federal court in Manhattan, New York-based Good Morning to You Productions Corp. has paid Warner/Chappell Music $1,500 for a license to use the song. The company is producing a documentary about the song, which is the most recognized in the English language, according to court papers.

Good Morning to You recounted the song’s history in court papers, claiming it’s based on a song two sisters wrote before 1893 as “Good Morning to All.” They assigned their copyright to Clayton F. Summy in 1893 in return for 10 percent of the retail sales of a manuscript of their songs, including “Good Morning.”

That year, Summy registered the copyright to the collection of songs, now titled “Song Stories for the Kindergarten,” as the owner but not the author. Summy then incorporated the Clayton F. Summy Co. and filed another copyright application for the work in a new edition in 1896.

The plaintiff said the lyrics to “Happy Birthday to You” weren’t published in the 1896 version. The public began singing the song no later than the early 1900s, even though they hadn’t yet been published, according to the complaint.

The complaint asked that a class be certified of all who entered into any license with Warner/Chappell for the use of “Happy Birthday” from June 13, 2009, until the present.

The court is then asked to address whether the song is in the public domain and whether Warner/Chappell is the exclusive owner of the copyright to the song and has the right to collect fees for its use.

The plaintiff also asked the court to determine whether Warner/Chappell violated the law by collecting fees for the song’s use and whether the publisher is required to return payments made of its licensing.

Additionally, Good Morning to You is seeking what it says is restitution for Warner/Chappell’s actions, and awards of litigation costs and attorney fees.

Warner/Chappell didn’t respond to an e-mail seeking comment on the suit.

The case is Good Morning to You Productions Corp. v. Warner/Chappell Music Inc., 1:13-cv-04040, U.S. District Court, Southern District of New York (Manhattan).

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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Companies Mentioned

  • MDT
    (Medtronic Inc)
    • $62.58 USD
    • -0.07
    • -0.11%
  • EW
    (Edwards Lifesciences Corp)
    • $92.88 USD
    • 8.44
    • 9.09%
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