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Monsanto, Merck, Tata, Ditto, Kraft: Intellectual Property (1)

June 11, 2013

Monsanto Co. (MON:US) won’t have to face a challenge to its patents on genetically modified seeds after a U.S. appeals court affirmed a decision to throw out a lawsuit filed by organic farmers and seed sellers.

The world’s largest seed company has made “binding assurances” that it won’t take patent action against farmers whose crops inadvertently contain traces of Monsanto’s biotechnology genes, so there’s no reason for a lawsuit, the U.S. Court of Appeals for the Federal Circuit in Washington said in an opinion posted on its website yesterday.

Monsanto has pursued more than 800 patent cases against farmers who planted its seeds without paying the proper royalty. The lawsuit, filed in March 2011, was a preemptive action by farmers, seed sellers and agricultural groups that said they had no desire to plant Monsanto seeds, took steps to avoid doing so and yet feared becoming the target of a patent-infringement suit if Monsanto’s modified traits were found in their soybeans, corn or other crops.

“Monsanto’s binding representations remove any risk of suit against the appellants as users or sellers of trace amounts (less than one percent) of modified seed,” Circuit Judge Timothy Dyk wrote for the three-judge panel. “The appellants have alleged no concrete plans or activities to use or sell greater than trace amounts of modified seed, and accordingly fail to show any risk of suit on that basis.”

Between 1997 and 2010, Monsanto filed 144 infringement suits and settled about 700 other cases without litigation, according to the opinion. The company’s practices have been upheld by courts, including a May decision from the U.S. Supreme Court.

The case brought by the farmers is Organic Seed Growers and Trade v. Monsanto Co., 12-1298, U.S. Court of Appeals for the Federal Circuit.

Merck Loses U.S. Appeal of Apotex Patent Win Over Nasonex

Merck & Co. (MRK:US) lost a U.S. appeals court bid to revive a patent-infringement claim against generic-drug maker Apotex Inc. over a copy of the allergy medicine Nasonex.

Apotex didn’t infringe the patent, the U.S. Court of Appeals for the Federal Circuit in Washington said in a notice posted yesterday on its website. The court, without issuing a formal opinion, did affirm a lower court ruling that upheld the validity of the Merck patent.

The cases are Merck Sharp and Dohme Corp. v. Apotex Inc., 2012-1516,-1543, U.S. Court of Appeals for the Federal Circuit (Washington).

Rovi Loses Ruling in Patent Case Against Netflix and Roku

Rovi Corp. (ROVI:US) lost the first round in its patent-infringement case against Netflix Inc. (NFLX:US) and Roku Inc. over interactive television program guides at the U.S. International Trade Commission.

Netflix and Roku didn’t infringe Rovi patents, trade Judge David Shaw said in a notice posted on the Washington agency’s website today. Rovi claimed Netflix infringes four patents and Roku one and is seeking an order that would block U.S. imports of Roku boxes and stop certain Netflix software applications.

The judge’s findings are subject to review by the six-member commission, which has set a target to complete the investigation by Oct. 7.

Ditto Technologies Used Indiegogo, T-Shirt Sales in Patent Fight

A two-year-old startup e-commerce company based in San Mateo, California, that is the target of two patent-infringement suits is offering T-shirts to donors who help fund the litigation.

Ditto Technologies Inc. sells eyeglass frames and uses a novel technology that lets its customers “try on” various styles at home by creating a video of their faces with their computer’s webcams.

The company was sued in federal court in Marshall, Texas, March 27, where it was accused of infringing Lennon Image Technologies LLC’s patent 6,624,843. That patent covers customer image capture and its use in a retailing system.

That suit is one of a more than 10 cases brought in the same court by Tyler, Texas-based Lennon. That particular judicial district has a reputation of being particularly hospitable to plaintiffs in patent cases.

The second case was brought in federal court in Utah Feb. 26 by Wellpoint Inc. (WLP:US)’s 1-800-Contacts unit. In that suit, Ditto is accused of infringing patent 7,016,824, covering an interactive try-on platform for eyeglasses.

Ditto has turned to Indiegogo Inc.’s website, the crowdfunding platform. In a letter posted on the Indiegogo website, Ditto founders said that the cost of defending the company against what it calls “patent trolls” could put Ditto out of business.

The company set a goal to raise $30,000 through Indiegogo, and is offering “I Beat Trolls” T-shirts to those who donate a minimum of $30 to the cause.

San Francisco’s Electronic Frontier Foundation, a digital-rights organization, has weighed in on Ditto’s behalf. In a posting on the EFF website, the organization said that 1-800-Contacts bought the patent it claims is infringed right after one of its executive went on Ditto’s website to check out the competition. That company said its own virtual try-on technology would be available in May 2013.

According to the U.S. Patent and Trademark Office’s database of changes in patent ownership. 1-800-Contacts acquired the patent on Oct. 28, 2012. The suit against Ditto was filed Feb. 26.

EFF posted an e-mail from 1-800-Contacts’ counsel on its website. In that e-mail, the company said it is offensive and false to call it a “patent troll,” and claims it does use the technology covered by the patent it claims Ditto infringes, and that the technology was in development “long before Ditto was founded.”

The first case is Lennon Image Technologies LLC v. Ditto Technologies Inc., 2:13-cv-00236-JRG, U.S. District Court, Eastern District of Texas (Marshall). The second case is 1-800-Contacts v. Ditto Technologies 2:13-cv-00145-DN, U.S. District Court, Central District of Utah (Salt Lake City).

For more patent news, click here.


Tata Goes After Unknown Infringers, Files Complaint in Delhi

Tata Motors Ltd. (TTMT), India’s biggest automaker, filed a trademark complaint in a Delhi court related to automotive accessories, India’s Economic Times reported.

Although the complaint didn’t name any specific defendant, the Mumbai-based company has asked that those producing, storing or selling the fakes be taken into custody, according to the newspaper.

In addition to making trademark claims, Tata’s complaint alleged that the defendants have violated India’s penal code by cheating, committing forgery and possessing the tools to enable counterfeiting trademarks, according to the Economic Times.

Tata is arguing that members of the public are cheated when they aim to buy the company’s legitimate products and instead receive fakes, the newspaper reported.

Kraft Sued Over ‘Topper’ Trademark by Canadian Dairy Company

Kraft Foods Group Inc. (KRFT:US), the maker of Velveeta, Miracle Whip and Tang, was sued for trademark infringement by a unit of Canada’s Saputo Inc. (SAP)

According to the complaint filed June 7 in federal court in Chicago, Saputo Cheese USA claims Kraft is infringing the “Toppers” trademark belonging to the Canadian dairy company. Saputo registered its mark with the U.S. Patent and Trademark Office in March 2000.

Packaging for a line of Northfield, Illinois-based Kraft’s Velveeta products began containing the word “toppers” beginning in 2012, Saputo said. The company claims that consumers are likely to be confused and to assume, mistakenly, that it is the source of the Kraft product.

The Canadian dairy company said that Kraft responded to a cease-and-desist letter by saying the company was “looking into this matter” and promised a substantive response to Saputo’s concerns. Despite this response, Kraft has continued in its use of “toppers” on its labels, Saputo claims in its pleadings.

St. Leonard, Quebec-based Saputo asked the court to bar further unauthorized use of its trademark, together with an order for recall and destruction of all infringing products, packaging and promotional materials. Saputo also seeks awards of attorney fees, litigation costs and money damages, including extra damages to punish the food company for its “willful and intentional conduct.”

“We do not comment on pending litigation,” Angela Wiggins, a Kraft spokeswoman, said in an e-mailed statement.

The case is Saputo Cheese USA Inc. v. Kraft Foods Group Inc., 1:13-cv-04245, U.S. District Court, Northern District of Illinois (Chicago).

Anheuser-Busch InBev Tells Small U.K. Brewery to Change Its Name

Anheuser-Busch InBev NV (BUD:US) has demanded a small craft brewery in the U.K. change the name of its beer or risk being sued for trademark infringement, the U.K.’s Daily Mail newspaper reported.

Belleville Brewing Co. of Wandsworth, which is named after a primary school attended by children of the company’s two directors, has been told customers could potentially confuse their product with the fruit-flavored Belgian-style Belle-Vue beer produced by Anheuser-Busch, according to the Daily Mail.

Counsel for the Leuven, Belgium-based brewery told Belleville Brewing that the two names were too similar both in appearance and sound, the newspaper reported.

The U.K. brewery, which has been given 28 days to change its name, and to destroy all potentially infringing packaging and promotional materials, told the Daily Mail the notion that customers would be confused is “ludicrous” because their American-style beers are completely different from Anheuser-Busch’s Belle-Vue products.

For more trademark news, click here.

For copyright news, click here.

Trade Secrets/Industrial Espionage

Ex-AMD Workers at Nvidia Lose Bid to End Trade-Secrets Suit

Former employees of Advanced Micro Devices Inc. (AMD:US) lost a bid for dismissal of the company’s claims that when they joined competing chipmaker Nvidia Corp. (NVDA:US) they disclosed trade secrets and urged ex-colleagues to join them.

Ruling yesterday in Worcester, Massachusetts,, U.S. District Judge Timothy Hillman rejected the motion by the ex-employees to dismiss claims including misappropriation of trade secrets and breach of contract. The judge granted a request to throw out a claim of unfair competition.

“Plaintiff has demonstrated a likelihood of success on the merits with regard to misappropriation,” Hillman said in an order denying most of the defendants’ motion.

AMD, based in Sunnyvale, California, accused ex-employees of taking sensitive company documents when they went to work for Nvidia. The former employees transferred more than 100,000 electronic files pertaining to AMD’s graphics-processor business in the days before their departure, AMD said in a complaint filed in January. The employees also allegedly recruited other AMD workers to leave the company.

Hillman last month granted AMD an injunction barring the ex-workers from disclosing trade secrets.

The employees all worked at AMD’s site in Boxborough, Massachusetts, according to the complaint.

Nvidia, based in Santa Clara, California, isn’t a defendant in the suit.

The case is Advanced Micro Devices v. Feldstein, 13-cv-40007, U.S. District Court, District of Massachusetts (Worcester).

To contact the reporter on this story: Victoria Slind-Flor in Oakland, California, at

To contact the editor responsible for this story: Michael Hytha at

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