Vestas, AstraZeneca, Kitfix: Intellectual Property

Vestas Wind Systems A/S, the world’s biggest wind-turbine maker, said it reached a settlement with Enercon GmbH in a patent dispute over grid connections.

The agreement will end worldwide lawsuits, including cases in the U.K, the Netherlands, Ireland and Canada, the Randers, Denmark-based company said in a statement to the Copenhagen stock exchange Nov. 26.

Decisions already handed down will stand, according to the statement. Vestas, which has 15,000 employees worldwide, won patent cases brought in Dutch court by Enercon founder Aloys Wobben in January, and April.

AstraZeneca Argues EU60 Million Antitrust Fine Based on Errors

A 60 million-euro ($77.8 million) fine on AstraZeneca Plc for misusing patents and flouting European Union antitrust rules was premised on a flawed interpretation of the facts, an EU court was told.

AstraZeneca, the U.K.’S second-biggest drugmaker, argued that the European Commission mistakenly decided in 2005 that the London-based company abused its dominant position and misled patent officials to keep generic versions of its Prilosec ulcer medicine off the market.

The commission’s decision was “fatally flawed and should be quashed,” AstraZeneca lawyer Mark Hoskins told the European Court of First Instance in Luxembourg, the main appeals tribunal for EU antitrust decisions. The agency excluded a different treatment with similar uses from its analysis and reached the wrong conclusion, said Hoskins of London’s Brick Court Chambers.

The case is the first in which the commission accused a drugmaker of violating EU antitrust rules by misusing its dominant position to shut out rivals. A ruling in favor of the EU could open the door to further penalties against drugmakers and force changes to their practices, lawyers said.

“This is the most crucial case ongoing in the pharmaceutical industry,” said Maria Isabel Manley, an intellectual-property lawyer focusing on EU regulatory and antitrust law. “The decision was a big mistake” and “created a lot of uncertainty for what pharmaceutical companies can do and cannot do.”

The court hearing coincides with today’s expected release of the preliminary findings of an EU probe into similar behavior by drugmakers and whether they misuse the patent system and settle lawsuits to keep lower-cost, generic versions of their drugs off the market.

The outcome in the Nov. 26 case could affect the EU’s wider probe of the pharmaceuticals market, said Manley of the Bristows law firm in London. Commission inspectors earlier this year raided the offices of AstraZeneca, GlaxoSmithKline Plc, Sanofi- Aventis SA and several competitors as part of the investigation.

AstraZeneca was able to keep generic versions of its ulcer drug off the market in seven countries between 1993 and 2000, the commission said after the six-year investigation that led to the court dispute.

The company gave misleading information to patent offices to extend rights on Prilosec, the world’s best-selling drug in the late 1990s, block cheaper versions and keep prices “artificially high,” the agency said in June 2005. AstraZeneca provided the patent offices in Belgium, Denmark, Germany, the Netherlands, Norway and the U.K. with incorrect information and dates to extend patent protection on Prilosec, said the commission.

“In the history of time no authority has ever examined with such detail and care” the issue of dominance as the commission did in this case, Fernando Castillo de la Torre, a lawyer for the commission, told the five-judge panel Nov. 26. The assessment was based “on accurate, relevant and coherent data.”

The company also misused drug-authorization systems by withdrawing market approvals for older versions in Denmark, Norway and Sweden, preventing entry by generic producers and parallel importers, said the Brussels-based EU regulator.

Pharmaceutical companies often withdraw market authorization for an older version of the drug after having improved it, said Manley, who has represented Novartis and AstraZeneca in other cases and isn’t involved in this one.

“The company acted in line with what was the law at the time,” she said. “It’s extraordinary that the commission went after the company for breaching the law instead of changing the law.”

The commission previously brought cases against drugmakers preventing so-called parallel traders from buying their medicine in low-priced countries, such as Spain, and selling them in higher-priced countries, such as the U.K. The EU regulator never before brought a case against a drugmaker for abusing registration procedures to maintain market supremacy.

The last big case on abuse of dominance to reach the Court of First Instance was Microsoft Corp.’s appeal of a 497 million- euro EU fine in 2004 for blocking rivals from accessing some of its data. Microsoft lost in September 2007.

GlaxoSmithKline, also based in London, is Europe’s biggest drugmaker.

The case is T-321/05 AstraZeneca v. Commission.

Crossroads Systems Settles Patent Case with Seven Defendants

Crossroads Systems Inc., provider of data security systems, settled a patent case with seven defendants, the company said in a statement Nov. 25.

The Austin, Texas-based company sued Accusys Inc., Auragen Technologies Inc., Digi-Data Corp., Rave Computer Association Inc., Ci Design Europole BV, Arena-Maxtronic Inc., Baydel North America Inc., Storage Engine Inc., Compellent Technologies Inc., and Inline Corp. on May 20 in federal court in Austin.

Crossroads accused the defendants, all providers of network storage solutions, of infringing one or both patents in dispute: 6,425,035, issued in July 2002; and 7,051,147, issued in May 2006.

Under terms of the settlement, the companies received a non-exclusive license to the technology covered by the patents. Financial terms were not disclosed.

Courtney Paige Thornton Stewart, John Allcock, John Michael Guaragna, Sean C. Cunningham, and Thomas Jesse Hindman of Chicago’s DLA Piper; and Elizabeth Brown Fore, and Steven Robert Sprinkle of the Sprinkle IP Law Group of Austin represented Crossroads.

The case is Crossroads Systems Inc., v. Accusys Inc., 1:08- cv-00394-SS, U.S. District Court, Western District of Texas (Austin).

For more patent news from Nov. 26, click here.

Copyright

UK’s Brown Urged to Support Copyright Term Extension

A video made on behalf of 38,000 musicians was sent to Prime Minister Gordon Brown urging his support for an extension of copyright terms, the BBC reported Nov. 26.

Present UK copyright terms extend for 50 years from creation of the work for performers, and 70 years after death for composers and authors, according to the BBCV.

The musicians are seeking UK support for the draft European Copyright Term Directive that would extend performers’ and producers’ rights for sound recordings to 95 years from the release of the product, the BBC reported.

The Open Rights Group, a UK based technology and civil rights group advocacy organization, opposes the change, saying any economic gains created by term extension would go to the record labels and “a handful of very famous performers,” according to the BBC.

For more copyright news from Nov. 26, click here.

Trademark

Kitfix Wins Trademark Infringement Case over Sequin Art

Kitfix Swallow Group, maker of the Sequin Art craft products since 1990, won a UK trademark base against toy wholesaler Great Gizmos Ltd., the BusinessWeekly.co.uk Web site reported Nov. 26.

A UK court granted Kitfix Swallow’s request for an order barring Great Gizmos of Crawly, West Sussex in the UK from future infringement of the Sequin Art trademarks, according to BusinessWeekly.

Great Gizmos must pay Kitfix Swallow 50,000 British pounds ($76,000) toward court costs and give the Norfolk, UK-based craft manufacturer data about past sales of infringing products, BusinessWeekly reported.

Kitfix Swallow was represented by Matthew Talbot and Hannah Streggles of the UK firm Howes Percival of Clintonville, Northampton, according to BusinessWeekly.

The case is Kit Swallow Group Ltd. and Great Gizmos Ltd., HC07C0099, High Court of Justice, Chancery Division.

American Eagle Wins Lyle & Scott Suit Over Trademark

American Eagle Outfitters Inc., the U.S. retailer of moderately priced clothing for 15- to 25-year-olds, won a lawsuit protecting its eagle trademark in Europe from a legal challenge by Scottish apparel maker Lyle & Scott Ltd.

A 2006 hand-written agreement between the competitors to let their logos co-exist worldwide is valid and must be enforced, U.S. Magistrate Judge Amy Reynolds Hay ruled Nov. 26 in federal court in Pittsburgh, where American Eagle is based.

Two weeks after reaching the agreement at a meeting in London, closely held Lyle & Scott challenged its validity and refused to sign a formal document, court records show. American Eagle sued to enforce the deal, which gives it the right to register trademarks in Europe and continue Internet sales.

“The evidence does not show that any of the parties addressed or manifested in any way an understanding that they would not be bound by the terms of the London memorandum,” Reynolds said in the ruling.

Lyle & Scott began the dispute in 2005 when it threatened to sue to prevent its yellow “Scottish eagle” logo from being confused with American Eagle’s design. Both trademarks include stylized eagles with spread wings and outstretched talons.

The Scottish clothier specializes in shirts and sweaters for men and women that sell for as much as 85 British pounds ($130), according to the company Web site. American Eagle sweaters and jeans listed on the company Web site are in the $40-$60 range.

Representatives of the companies shook hands after reaching the original deal, under which American Eagle agreed to pay $1 million, drop its challenge to Lyle & Scott’s application for a U.S. trademark and avoid targeting the golf market, according to the ruling. The deal also gave the U.S. clothier the right of first refusal to buy Lyle & Scott.

Lyle & Scott’s lawyer, Charles Wolfe of the Philadelphia- based Blank Rome, didn’t immediately return a call for comment.

The case is American Eagle Outfitters Inc. v. Lyle & Scott Ltd., 2:06-cv-00607, U.S. District Court, Western District of Pennsylvania (Pittsburgh).

For more trademark news from Nov. 26, click here.

University Technology Transfer

BioLineRX Licenses Inflammation Treatment from Hebrew University

BioLineRx Ltd., an Israeli drug developer, has taken a license through Yissum Ltd. for a treatment for inflammatory bowl disease developed at Hebrew University of Jerusalem, the two entities said in a joint statement.

Yissum is a technology transfer agency founded in 1964 to commercialize and protect IP developed at Hebrew University. Previously this year, Yissum licensed university-developed IP relating to the treatment of neurodegenerative disease to Eucalyptus Ltd. of Holon, Israel.

The deal with BioLineRX involves BL-5040, an anti-hormone that can be used against a variety of inflammatory diseases.

The compound was initially developed by Professor Arieh Gertler from Hebrew University’s Robert H. Smith Faculty of Agriculture, Food and the Environment; and Dr. Isabel Callebaut of L’Universite Pierre et Marie Curie, and Dr. Jean Djian of France’s National Institute for Agricultural Research. Some of the rights to the compound were also obtained from Tel Aviv Sourasky Medical Center.

Financial terms of the agreement were not disclosed.

For Bloomberg articles by lawyers on intellectual property topics, click here.

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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: Patrick Oster at poster@bloomberg.net.

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