Bloomberg News

Judge, Samsung, Macy’s, Ripoff Report: Intellectual Property

August 02, 2013

The U.S. Senate yesterday confirmed President Barack Obama’s appointment of Raymond Chen for a seat on the U.S. Court of Appeals for the Federal Circuit.

Chen, who has served as the U.S. Patent and Trademark Office’s deputy general counsel and patent solicitor, was nominated for the Washington-based court that hears appeals of patent cases Feb. 7.

He will be taking the seat previously occupied by Richard Linn, who was appointed to the court in 1999 by President Bill Clinton. Before Linn, the seat was held by Giles Sutherland Rich, who served on the court from its inception until his death in 1999 at 95.

Chen has been with the patent office since 1998, serving first as assistant solicitor. He argued more than 20 cases before the Federal Circuit. Before joining the patent office, he was a technical assistant at the Federal Circuit.

He has an undergraduate degree from the University of California, Los Angeles, and a law degree from New York University.

Apple Against Samsung Over Phones Turns on Who Copied Whom

Apple Inc. (AAPL:US) hasn’t had much to show for two years of efforts to prove Samsung Electronics Co. (005930) “slavishly copied” the iPhone as its top competitor became the world’s biggest smartphone maker.

Its next chance at putting a dent in Samsung’s sales comes Aug. 9, after a decision was delayed yesterday, when a U.S. trade agency in Washington is to announce whether it will block imports of some of the South Korean company’s phones.

An import ban on some iPhone 4s starts at midnight Aug. 4 unless President Barack Obama intervenes, while an appeals court hears Apple’s arguments for banning Samsung products in a separate case Aug. 9.

Those three events could alter the balance in the global smartphone-patent battle -- leaving one company in a better bargaining position, continuing the cycle of litigation or forcing both sides to negotiate. The fight is for more share of a market that grew 34 percent to $293.9 billion last year, according to data compiled by Bloomberg.

As it seeks to block Samsung phones from the U.S., Apple is fighting to overturn an International Trade Commission import ban on some of its own devices. Apple could be forced to remove some versions of its iPhone 4s and iPad 2 3G from the U.S. market next week unless the ban is overturned by the Obama administration or put on hold by the courts.

Apple will also ask a U.S. appeals court Aug. 9 to reverse a trial judge’s ruling that has allowed continued sale of Samsung products which a jury last year said infringed Apple patents.

The ITC delayed a decision it was scheduled to make yesterday on Cupertino, California-based Apple’s claims that Samsung “deliberately copied Apple’s patented designs and technology” for the iPhone and “undercut Apple’s prices and captured a significant share of the U.S. market.”

For more patent news, click here.

Trademark

Macy’s Makes Final Bid to Block Rival’s Martha Stewart Goods

Macy’s Inc. (M:US), the second-biggest U.S. department store chain, made a final bid to block Martha Stewart’s company from selling bedding, cookware and other merchandise at J.C. Penney Co. (JCP:US)

New York State Supreme Court Justice Jeffrey Oing in Manhattan heard closing arguments yesterday in a nonjury trial of lawsuits filed by Cincinnati-based Macy’s seeking to block a December 2011 sales agreement between Martha Stewart Living Omnimedia Inc. and J.C. Penney.

Martha Stewart Living breached its 2006 contract with Macy’s by entering into the later deal with J.C. Penney, Ted Grossman, a lawyer for Macy’s, told the judge.

Oing is to decide whether Plano, Texas-based J.C. Penney has the right to sell any merchandise designed by Stewart’s company in categories where Macy’s claims exclusivity. Mark H. Epstein, a lawyer for J.C. Penney, blamed Macy’s for the dispute.

Eric Seiler, a lawyer for Martha Stewart Living, told the judge that Macy’s is no longer asking for a court order barring J.C. Penney from selling goods made by his client that don’t bear the Stewart brand, and is instead going to seek damages at a later trial. Macy’s shouldn’t be able to try case a second time, Seiler said.

Regardless of the outcome, the case will change the way licensing agreements are drafted, said Steven R. Gursky, a partner at Olshan Frome Wolosky LLP in New York who focuses on contract negotiations and intellectual property.

“It may send people out who have existing agreements with Macy’s and others to say, ‘What does my agreement say? Do I really have an exclusive and can I have my cake and eat it too?’” Gursky said.

The cases are Macy’s Inc. v. Martha Stewart Living Omnimedia Inc. (MSO:US), 650197/2012, and Macy’s Inc. v. J.C. Penney Corp., 652861/2012, New York State Supreme Court (Manhattan).

For more trademark news, click here.

Copyright

Lawyer Turns to Copyright to Force Negative-Review Removal

A Boston lawyer who won the copyright to negative remarks about him posted on the Ripoff Report website is suing the site’s operator for copyright infringement.

Richard A. Goren filed suit in federal court in Boston against Arizona-based Xcentric Ventures LLC. In May, the Suffolk County Superior Court awarded him the copyright to a negative review of his Small Justice LLC law practice that was posted on the Ripoff Report by a John Doe doing business as Arabianights-Boston Massachusetts, according to court papers.

The state court conveyed all rights to the posting to Goren, and gave him all rights to require Ripoff Report to take down the material. Goren next sued Xcentric for keeping the content up.

He said in his federal complaint that the objectionable content has been re-indexed to bear different dates from the original posting and that it continues to appear in Google search results.

Goren asked the court to bar further publication of the material and for money damages, litigation costs and attorney fees.

According to its website, Ripoff Report doesn’t ever take down reports. The company said that while it “cannot and will not consider removal requests from anyone,” it will permit those who think they have been unfairly targeted to post a rebuttal.

The case is Small Justice LLC v. Xcentric Ventures LLC, 13-cv-11701, U.S. District Court, District of Massachusetts (Boston).

For more copyright news, click here.

Trade Secrets/Industrial Espionage

Fera Persuades Federal Court Not to Dismiss Trade Secrets Case

A trade secrets case filed by Fera Pharmaceuticals LLC, a provider of anti-infective ophthalmic medicines, can go ahead, a federal judge in Manhattan ruled July 30.

Fera sued business partner Akorn Inc. (AKRX:US) in New York state court in September 2012, seeking more than $100 million in damages for contract violations and misuse of trade secrets.

Fera alleged that Akorn, of Lake Forest, Illinois, in 2009 agreed to make Fera products for seven years, “failed to perform its duties” and sought to acquire Locust Valley, New York-based Fera’s trade secrets and make at least two products itself, according to court papers.

The case was moved to federal court in October 2012. Akorn asked the court to dismiss the case, claiming the issues raised by Fera were actually mitigated by a supply agreement between them.

U.S. District Judge Louis L. Stanton disagreed. He said that if the supply agreement was obtained by fraud, the contract can’t be used to defend Akorn’s actions.

He found that Fera’s allegations of fraud by Akorn “adequately specify the time, place, speaker and content of the alleged misrepresentations” and he dismissed Akorn’s assertion that Fera didn’t adequately make its claims. He rejected Akorn’s dismissal motion.

The case is Fera Pharmaceuticals LLC v. Akorn Inc., 13-cv-07694, U.S. District Court, Southern District of New York (Manhattan).

North Carolina Will Keep Insurance Rates Secret, Radio Says

North Carolina refused to release the rates companies can charge in the state’s new online marketplace for health insurance, claiming the figures are a trade secret, WFAE, a Charlotte public radio station, reported.

Although New York, Maryland and Indiana have published the rates for their insurance marketplace, North Carolina’s Department of Insurance kept the rates secret at the insurance companies’ requests, according to WFAE.

Timothy Jost, a consumer representative for the National Association of Insurance Commissioners, told WFAE that early rate disclosure is in the consumers’ interest because it can force companies to compete on rates.

An intellectual property attorney WFAE consulted told the station that few companies’ trade-secret claims will hold up under North Carolina law.

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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