Eli Lilly & Co., the world’s biggest maker of psychiatric drugs, persuaded a judge to temporarily block generic versions of its attention-deficit treatment Strattera while the company considers an appeal of an earlier patent ruling.
U.S. District Judge Dennis M. Cavanaugh issued the order yesterday, giving Lilly time to weigh its options following his Aug. 12 ruling that invalidated a patent on the medicine. The order ends 14 days after the judge signs a final judgment in that case, unless the U.S. Court of Appeals for the Federal Circuit in Washington decides it should last through the appeal.
The invalidation of Lilly’s Strattera patent opened the door for generic copies by as many as 10 companies, including Mylan Inc., Teva Pharmaceutical Industries Ltd. and Novartis AG’s Sandoz unit. Strattera, known by its active ingredient atomoxetine, generated U.S. sales of $445.6 million last year as a treatment for attention deficit hyperactivity disorder, Lilly said in a fourth-quarter earnings statement. The Indianapolis- based company reported $21.8 billion in total annual revenue.
Lilly’s patent on Strattera would have prevented sales of copies until May 2017. The company said after the Aug. 12 ruling that it expects “near-term entry” of generic versions and reduced its sales-growth forecast for the year to the low- to mid-single digits, from the mid-single digits.
According to data from the Atlanta-based Centers for Disease Control, 4.5 million children ages 5-17 in the U.S. have been diagnosed with attention deficit hyperactivity disorder. The rate of treatment with drugs is variable, with 2.5 percent of the children in that age range given ADHD drugs in the state of California, and 6.5 percent in Arkansas.
The company’s top-selling drugs Zyprexa and Cymbalta, which account for more than a third of its revenue, face generic competition by 2013. Zyprexa is used to treat schizophrenia and Cymbalta is an antidepressant.
A U.S. appeals court on July 28 upheld a ruling that a patent on Lilly’s cancer medicine Gemzar was invalid. The decision may allow generic competition as early as November, two years earlier than Lilly had projected. Gemzar had $747.4 million in U.S. sales last year.
Mylan, based in Canonsburg, Pennsylvania, is the largest generic-drug maker based in the U.S. Petah Tikva, Israel-based Teva Pharmaceutical is the world’s biggest, followed by Basel, Switzerland-based Novartis’s Sandoz unit.
The other generic-drug makers who had challenged the Strattera patent were Synthon BV; Iceland’s Actavis Group hf; Canada’s Apotex Inc.; and India’s Aurobindo Pharma Ltd., Glenmark Pharmaceuticals Ltd., Sun Pharmaceutical Industries Ltd. and Cadila Healthcare Ltd.’s Zydus.
The case is Eli Lilly & Co. v. Actavis Elizabeth LLC, 07cv3770, U.S. District Court for the District of New Jersey (Newark).
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Copyright
MGA Claims Mattel Sent Spies to Toy Shows and Its Lawyers Helped
The copyright-infringement case between rival toy companies Mattel Inc. and MGA Entertainment Inc. of Van Nuys, California, now contains trade-secret misappropriation claims, according to an Aug. 16 case filing.
In a 53-page document filed in federal court in Los Angeles, MGA accused Mattel of trying to steal its trade secrets and claimed that it was assisted in this process by some of its lawyers. The document was one of more than 8,600 contained in the case file at federal court in Los Angeles.
The underlying dispute related to MGA’s Bratz dolls that Mattel said were designed by one of its employees and taken to the competitor. In July, a federal appeals court overturned a trial court order giving Mattel the rights to most of MGA’s Bratz products and said the dispute would probably need to be retried.
The new filing on MGA’s behalf claims that Mattel hired people to attend toy fairs, misrepresent themselves to get into private showrooms, and photograph and videotape what they saw in those rooms. These Mattel employees pretended to be retailers because, as employees of an MGA competitor, they would not have been admitted to the showrooms.
Not only MGA was harmed by this, according to court papers. In the new filing, MGA says “practically every toy company in the business” was infiltrated and unreleased product information was gathered.
MGA also accused lawyers from Los Angeles’ Quinn Emanuel Urquhart & Sullivan LLP and Mexico’s Basham Ringe y Correa of aiding Mattel in obtaining competitors’ confidential information. Mattel, the El Segundo, California-based toy company, said in an e-mailed statement yesterday that the MGA “11th-hour claims are without merit.”
The statement, which was sent by Lisa Marie Bongiovannia, Mattel’s vice president, corporate affairs, claimed the MGA filing was “a cynical attempt to deflect attention” from its own wrongdoing. Mattel says it will “expect more of the same” as the new trial approaches.
“As legal professionals recognize, this kind of attack on opposing counsel is a second-rate tactic that only serves to show how desperate MGA has become as a trial on the merits of MGA’s misconduct approaches,” said Michael T. Zeller, a Quinn Emanuel lawyer representing Mattel in the Bratz case,
The case is Carter Bryant v. Mattel, 2:04-cv-09049-DOC-RNB, U.S. District Court, Central District of California (Los Angeles).
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Trademark
Lucasfilm Calls in The Force of Litigation Against ‘Jedi Mind’
Lucasfilm Ltd., the film company of “Star Wars” director George Lucas, sued the creator of a computer application for trademark infringement.
The Nicasio, California-based film company claims its “Jedi” and “The Force” marks -- associated with the “Star Wars” series of films -- are infringed by Jedi Mind Inc. of Encinitas, California. Co-defendant with Jedi Mind is Brent Fouch, the president and chief executive officer of the company.
According to the complaint filed Aug. 17 in federal court in San Francisco, Fouch’s company has created computer applications that are controlled by a user’s mind, without the need of an external control device.
Lucasfilm claims Jedi Mind is trying to trade off the fame and attributes of its trademarks, including an unregistered mark -- “Jedi Mind Trick” -- by which a Star Wars Jedi knight can use telepathic ability to control enemies or bystanders.
The film company also objects to Jedi Mind’s promotion and sale of an interactive software product known as a “Jedi Mouse.”
In response to a May 29, 2009, cease-and-desist letter from Lucasfilm, Fouch said he would phase out the use of Jedi marks, and asked for a “reasonable time frame” to do so. The response letter from Fouch is included in the court filing.
Lucasfilm said it gave Fouch a one-month period to comply. The company said Fouch and Jedi Mind have not fulfilled the agreement. When the Jedi Mind website was accessed yesterday, the company was offering the Jedi Mouse for sale.
The film company said Fouch’s continued use of the trademarks without authorization can confuse consumers and cause them to believe falsely that there’s a connection between the two entities.
It asked the court to order Fouch and Jedi Mind to stop unauthorized use of the marks, and to destroy all infringing products and promotional materials. Additionally, Lucasfilm asked for money damages of at least $15 million, in addition to awards of attorney fees and litigation costs.
Lucasfilm is represented by David M. Given of Phillips, Erlewine & Given LLP of San Francisco.
The case is Lucasfilm Ltd. v. Jedi Mind Inc., 4:10-cv- 03632, U.S. District Court, Northern District of California (San Francisco).
Canon Sues EBay Sellers of Alleged Fake Batteries, Camera Grips
Canon Inc., the Tokyo-based maker of cameras and copying machines, sued two North Carolina men for trademark infringement.
Michael Freeman and Wayne Van Freeman are accused of selling fake Canon batteries and battery grips for digital cameras on Ebay.com Inc.’s auction website.
The sale of the fakes is damaging to its reputation, Canon’s Canon USA unit said in a complaint filed Aug. 18 in federal court in North Carolina.
Canon asked the court to bar the sale of the fakes, and to order the defendants to stop infringing the trademarks. Additionally, the company asked the court to order the destruction of all infringing products and promotional material, and the recall of all fakes previously sold.
In addition to money damages of as much as $2 million, Canon asked for awards of the defendants’ profits flowing from the alleged infringement, and attorney fees and litigation costs.
Canon is represented by Charles Marshall of Brooks Pierce McLendon Humphrey & Leonard LLP of Raleigh, North Carolina, and Mark Schonfeld of Burns & Levinson LLP of Boston.
The case is Canon USA Inc. v. Michael Freeman, 1:10-cv- 00642, U.S. District Court, Middle District of North Carolina.
For more trademark news, click here.
Intel, Vice Sued by Georgia Non-Profit Over ‘Creators Project’
Intel Corp., the world’s biggest chipmaker, was sued for trademark infringement by a Georgia non-profit organization.
The Creatives Community Housing Project Inc. of Atlanta objects to “The Creators Project,” Intel’s joint project with New York’s Vice Magazine. Intel and Vice announced the collaboration in May 2010, which is intended to identify artists and let them showcase their works through interactive media, including a website, thecreatorsproject.com, according to the complaint filed Aug. 18 in federal court in Atlanta.
The Georgia organization, which supports and promotes the arts, uses “the creators project” as an identifier, it said in the complaint. The project finds free or non-profit housing for artists by connecting them with landlords who have a surplus of housing, and began using “The Atlanta Creatives Project” in August 2007, according to court papers.
It claims it’s harmed because its work is likely to be confused by the public with the Intel-Vice joint project. It also objects to the “extremely vulgar” website used by Vice, www.viceland.com. One of the Georgia project’s objectives is outreach programs to youth, so it finds the Vice website objectionable.
The non-profit said it did a Google search of the viceland.com website using the Federal Communication Commission’s list of “seven dirty words” and came up with more than 25,000 results. Given what it says is the public confusion between itself and the Vice-Intel project, the content on the Vice website is “intolerable,” according to court papers.
Creative Community also objects to an application Intel filed May 19 with the U.S. Patent and Trademark Office to register “The Creators Project” as a trademark.
It asked the court to bar Intel and Vice from using “The Creators Project” mark, and “the creatorsproject.com domain name. Additionally, it seeks destruction of all materials in Intel and Vice’s control that contain what it says are infringing marks.
The non-profit organization also asked for awards of money damages, extra damages to punish the chipmaker and magazine for their alleged infringement, attorney fees and litigation costs.
Creative Community is represented by David M. Lilenfeld and R. Scott Griffin of Atlanta’s Lilenfeld PC.
The case is Creatives Community Housing Project Inc. v. Vice Magazine Publishing Inc., 1:10-cv-02588-TCB, U.S. District Court, Northern District of Georgia (Atlanta).
IP Moves
Eckert Semans Expands IP Practice With Hire From Duane Morris
Eckert Seamans Cherin & Mellott LLC hired P. Terrence Gaffney for its IP practice, the Pittsburgh-based firm said in a statement.
Gaffney, who does both transactional work and litigation, joins from Philadelphia’s Duane Morris LLP.
His practice has focused on life-science issues, including pharmaceuticals, biotechnology, medical device, and dietary supplements.
Before he was a lawyer, Gaffney worked at SmithKline Beecham, and on the critical-care nursing staff at a teaching hospital.
Gaffney has an undergraduate degree from John Carroll University and a law degree from Cleveland State university.
To contact the reporter on this story: Victoria Slind-Flor in Oakland, California, at vslindflor@bloomberg.net.
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