The European Union’s second-highest court upheld a ruling that AstraZeneca Plc misled patent officials and flouted antitrust rules to keep a generic competitor off the market. The court also reduced the associated fine against the company.
The EU’s General Court yesterday cut the company’s fine from 60 million euros ($74 million) to 52.5 million euros. The court upheld the decision by the region’s antitrust regulator that AstraZeneca, the U.K.’s second-largest drugmaker, “abused its dominant position by preventing the marketing of generic products” of its Prilosec heartburn medicine.
The ruling may affect an ongoing EU probe into pharmaceutical companies’ strategies to keep generic drugs off the market. AstraZeneca, GlaxoSmithKline Plc and Sanofi-Aventis SA are among companies the Brussels-based European Commission has queried as part of its probe. Companies use a variety of techniques to delay generics, the EU said in a report last July.
AstraZeneca, based in London, had challenged the commission’s June 2005 decision to fine it for market abuse and misleading patent authorities over Prilosec. The court overturned the commission’s finding that AstraZeneca breached EU rules by withdrawing market approvals for older versions of the drug in Denmark and Norway, which prevented entry by generic producers and parallel importers. producers and parallel importers.
“The company is disappointed that our position wasn’t confirmed in full,” AstraZeneca spokeswoman Sarah Lindgreen said in an interview. “Obviously, it’s very complex and we need to review it in detail to comment further.”
This is the first case in which the commission, the antitrust regulator for the 27 EU nations, accused a drugmaker of violating EU antitrust rules by misusing its dominant position to shut out rivals.
The commission welcomed the decision, spokeswoman Amelia Torres told reporters at a regular briefing in Brussels.
The decision shows that companies can’t “misuse the patent system and the system of authorization of medicines,” Torres said. Competition Commissioner Joaquin Almunia “is determined to use competition rules to fight” such behavior, she said.
The case is T-321/05 AstraZeneca v Commission.
Razor Sued by Kettler Over Tricycle Steering-Mechanism Patents
Razor USA LLC, the closely held maker of the aluminum kick scooter, was sued for patent infringement by a German maker of children’s toys.
Heinz Kettler GmbH of Ense-Parsit, Germany, claims Razor infringes four U.S. patents relating to vehicle steering heads, turn systems and steering lock systems. In dispute are patents 7,487,988, 7,156,408, 6,799,772 and 6,378,884.
The technology covered by these patents can prevent a child from over-steering a vehicle or permit an adult to lock the front wheel of a vehicle in a straight position, according to the complaint filed June 24 in federal court in Alexandria, Virginia.
Razor’s RazorRipRider 360, a tricycle, infringes these patents, and the Cerritos, California-based company knew or should have known that, the German company claims.
It asked the court to rule that Razor infringed the patents, and to order a recall of all infringing products in the U.S. that haven’t been sold or shipped to consumers. The company also asked for awards of litigation costs, attorney fees and money damages, and requested that damages be tripled.
The case is Heinz Kettler GmbH v. Razor USA LLC, 1:10-cv- 00708-TSE-JFA, U.S. District Court, Eastern District of Virginia (Alexandria).
Interactive Life, Sex-Toy Maker, Seeks to Block Knockoffs
Interactive Life Forms LLC, the maker of devices such as Fleshlight and Sex-in-a-Can, filed patent-infringement complaints against 25 companies to stop sales of knockoff sex toys in the U.S. that use its technology.
Imports of the Handy Humper and Travel Honeypot brands should be banned because they are among products that violate two Interactive Life patents, the company said in a complaint yesterday with the U.S. International Trade Commission in Washington. Closely held Interactive Life also filed a civil lawsuit in federal court in Austin, Texas, where it’s based.
The patents were issued in 1998 on a device shaped as a flashlight or thermos with elastomeric gel inside.
The complaint names seven manufacturers, 11 distributors and seven retailers that Interactive Life claims are selling the knockoffs, including California Exotic Novelties Inc. in Chino, California, and Nanma Manufacturing Co. in Hong Kong.
The companies aren’t licensed to use the elastomeric gel invention and aren’t paying royalties, according to the complaint.
Interactive Life said the case shouldn’t be limited to those companies and asked that the ITC ban imports of any unlicensed products made with the patented elastomeric gel.
The ITC case is In the Matter of Certain Devices Having Elastomeric Gel and Components Thereof, Complaint No. 2744, U.S. International Trade Commission (Washington). The civil case is Interactive Life Forms LLC v. California Exotic Novelties Inc., 10cv484, U.S. District Court for the Western District of Texas).
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Spike Network’s ‘Pros vs. Joes’ Accused of Infringement
Viacom Inc. was sued for copyright infringement by two New York State residents who claim a show on the entertainment company’s Spike network infringed a program they developed.
Christopher Castorina of Huntington, New York, and Steven Morse of Lake Grove, New York, developed an idea for a sports reality television show that pitted average men against professional athletes, they said in the complaint filed June 28 in federal court in Central Islip, New York.
The premise of their show, to be known as “Two Left Feet,” was that “some men missed their calling as athletes and some men should stay home, content to yell at the TV during games,” they said in their pleadings.
They developed what is known as a “treatment” for the show, and registered it with the Writers Guild of America in April 2004 and with the U.S. Copyright Office in March 2006, according to court papers. They said they submitted their treatment to agents at Industry Entertainment of Los Angeles in January 2005.
Castorina and Morse claim Spike’s “Pros vs. Joes,” which premiered in March 2006, has so many “striking similarities” to their work that “no theory of coincidence, simultaneous creation, prior common source of any explanation other than copying” could account for them.
They also claim that the defendants, which include Industry Entertainment, had access to their treatment and never acknowledged their work. As a result of the defendants’ actions, they say they suffered “loss of economic opportunity” and the “lawful enjoyment of the rights and privileged of their artistic creation.”
They asked the court for an order barring the defendants from infringing their work, and for money damages.
The two men are represented by Donald D. Maio of Huntington’s DeJesu Maio & Associates.
The case is Castorina v. Spike Cable Networks Inc, 2:10-cv- 02954-JS-ARL, U.S. District Court, Eastern District of New York (Central Islip).
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Lady Gaga’s Merchandisers Try to Preempt Bootleg Gear Sales
The merchandising group representing the performer known as Lady Gaga filed a preemptive trademark-infringement lawsuit in advance of the singer’s New York performances.
Bravado International Group Merchandising Services sued 300 unidentified individual and corporate defendants in a complaint filed June 25 in federal court in Manhattan.
The defendants have made, distributed and sold “inferior merchandise bearing the artist’s trademark in the vicinity of the artist’s concerts,” according to court papers. Bravado said it anticipates the same action will take place at the New York shows.
The merchandise company asked the court to authorize law enforcement officials and agents of Bravado to seize and impound all bootleg merchandise sold in the vicinity of the arenas where Lady Gaga performs, before, during and after the concerts.
Additionally, Bravado asked for the destruction of all offending items, for a court order barring the infringement of Lady Gaga’s marks, and an award of money damages.
The case is Bravado International Group Merchandising Services Inc., v. John Does 1-100, 1:10-cv-04942-RJH, U.S. District Court, Southern District of New York (Manhattan).
Alzheimer Charities Battle Over Trademark, Bequest Check
Two charities that focus on Alzheimer’s disease are fighting a trademark battle in federal court. Underlying the trademark dispute is a tug-of-war over a $36,000 bequest from a Virginia woman who died in 2005.
The Chicago-based Alzheimer’s Disease and Related Disorders Association Inc. sued the Alzheimer’s Foundation of American Inc. of New York for trademark infringement on June 28 in federal court in New York.
The New York organization sued the Chicago group for trademark infringement in April in the same court. The complaint in that case states that the Chicago group received a check from the Mildred E. Harbaugh Living Trust that was made out to the Alzheimer’s Foundation and cashed it.
The foundation said it discovered this in 2007 and demanded that the Chicago group send it the money. It claims the Chicago group has continued to receive checks and bequests made payable to the Alzheimer’s Foundation and continues to deposit the proceeds for its own benefit.
The Foundation claims this action infringes its trademark, because the public is misled to believe that Alzheimer’s Association and Alzheimer’s Foundation “represent a single charitable entity.”
It asked the court to bar the association from using the foundation’s marks, from interfering in any way in its relationship with donors, and to quit cashing checks made out to the foundation.
The Chicago group, in its court filings, accuses the foundation of infringing its trademarks, which it says have priority over any used by the foundation. The association claims the foundation deliberately selected a name that would confuse donors, social workers and health-care professionals.
The association also claimed that the trustees of Harbaugh’s estate have been confused by the foundation’s action. The association filed a state court action in Virginia against the trustees because they stopped making payments from the bequest, which in total amounts to 15 percent of Harbaugh’s estate.
The Chicago group asked the court to find that the foundation infringed the association’s marks, and to order the group to quit using the term “Alzheimer’s Foundation” in connection with providing services or grants and with fund raising.
Additionally, it seeks an award of all the money the foundation has raised since 2002, together with litigation costs and attorney fees.
The association is represented by Joseph R. Robinson of Chicago’s McDermott Will & Emery LLC. The foundation is represented by Mark J. Ingber of Millburn, New Jersey’s Ingber & Gelber LLP and Jeffrey S. Greener of Rivkin Radler LLP of Uniondale, New York.
The original case is Alzheimer’s Foundation of America Inc., v. Alzheimer’s Disease and Related Disorders Association Inc. 1:10-cv-03314-RWS, U.S. District Court, Southern District of New York (Manhattan).
The new case is Alzheimer’s Disease and Related Disorders Association Inc. v. Alzheimer’s Foundation of American Inc., 1:10-cv-05013-UA, U.S. District Court, Southern District of New York (Manhattan).
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Barnes & Thornburg Expands Minneapolis IP Practice
Williams, a litigator, joins from Houston’s Fulbright & Jaworski LLP. He has represented clients whose technologies included medical devices, software, biotechnology, semiconductors, and business-method and chemical patents.
He has an undergraduate degree from the University of Iowa and a law degree from Drake University.
Jenner & Block Brings Back IP Litigator Bradford P. Lyerla
Lyerla rejoins the firm from Marshall, Gerstein & Borun LLP, a Chicago-based IP specialty firm. A veteran of more than 40 patent-litigation cases, he also has handled antitrust, trademark, trade-secret and copyright disputes.
In addition to his commercial litigation, Lyerla has successfully defended two death-penalty cases on a pro bono basis.
Lyerla has an undergraduate degree in philosophy and a law degree from the University of Illinois.