IPCom, Eli Lilly, Nintendo, Discovery, Axel Braun: Intellectual Property

IPCom GmbH & Co. is confident it will win a German case in which Nokia Oyj and HTC Corp. challenged a patent held by the licensing company that could potentially block sales of the handset makers’ devices in Germany, according to Bernhard Frohwitter, IPCom’s chief executive officer.

Germany’s Federal Patent Court in Munich said Oct. 27 that it would uphold IPCom’s patent protecting random access channel technology, Frohwitter said yesterday in a phone interview. Nokia and HTC said the court won’t make a final ruling in the case until after additional arguments on Dec. 16.

The case is part of Pullach, Germany-based IPCom’s effort to force Nokia and HTC to pay royalties for a portfolio of mobile technology patents it acquired from Robert Bosch GmbH in 2007. This year, Nokia succeeded in overturning some IPCom patents in a U.K. court and lost a bid to invalidate another patent at the European Patent Office.

“This will give an incredible boost to our cases pending in other German courts,” said Frohwitter. “We will finally get the ruling Nokia has been trying to run away from for two years.”

HTC’s German lawyer, Martin Chakraborty, said the court hasn’t taken a final position on the issue and will only decide it after hearing new arguments from HTC and Nokia.

“Nokia does not believe that any injunction can be imposed on Nokia products in Germany based on these IPCom claims,” company spokesman Mark Durrant said in an e-mailed statement. It is “inaccurate” to claim the patent at issue has been found valid, he said.

An eventual ruling by the patent judges can be appealed to the Federal Court of Justice, Germany’s highest civil tribunal.

IPCom has filed separate infringement suits in German courts to stop the handset makers from selling products in that country. Some of the suits were put on hold while patent authorities and patent courts rule on the validity of the intellectual property.

All patents IPCom asserted against Nokia in Germany that have come to judgment have been found to be invalid or not infringed by Nokia products, Durrant said.

IPCom won an infringement case against HTC in a Mannheim court that is now pending on appeal.

Lilly Loses Bid for Rehearing in Gemzar Patent Case

Eli Lilly & Co. failed to win an appeals court rehearing over its loss of patent protection for the cancer drug Gemzar, which may lead to generic rivals in two weeks.

The U.S. Court of Appeals for the Federal Circuit in Washington said yesterday it would let stand a July 28 ruling that a patent on the medicine expiring in May 2013 is invalid. The patent is similar to one that expires Nov. 15, the court ruled in a victory for Indian generic-drug maker Sun Pharmaceutical Industries Ltd.

Gemzar, used for lung, breast, pancreatic and ovarian cancers, generated $1.36 billion in global sales last year including $747.4 million in the U.S., the Indianapolis-based company said in its fourth-quarter earnings report.

Teva Pharmaceutical Industries Ltd., Hospira Inc. and Novartis AG’s Sandoz also are seeking to sell lower-cost versions of the medicine.

“We are currently considering our remaining legal options,” Mark Taylor, a Lilly spokesman, said in an e-mailed statement. “We will not speculate on whether generic competitors will be prepared to enter the market upon expiration of Gemzar’s compound patent in mid-November.”

Lilly had asked that the original three-judge panel reconsider the case or that it be heard before all active judges of the court, which specializes in U.S. patent law.

Of the nine active judges, four said the case should have been heard before the entire court, saying there are questions about the legal standard to determine if there has been double patenting.

The case is Sun Pharmaceutical Industries Ltd. v. Eli Lilly & Co., 10-1105, U.S. Court of Appeals for the Federal Circuit (Washington). The lower court case is Sun Pharmaceutical v. Eli Lilly, 07-15087, U.S. District Court, Eastern District of Michigan (Detroit).

Nintendo Avoids $21 Million Award as High Court Rejects Appeal

The U.S. Supreme Court refused to revive a $21 million patent-infringement verdict against a unit of Nintendo Co., the world’s biggest maker of video-game players.

Yesterday the justices rejected an appeal by Anascape Ltd., a closely held Texas company, leaving intact an appeals court decision throwing out the award. The lower court also invalidated a patent held by Anascape. The dispute was over controllers, devices that move images, in Nintendo’s Wii and GameCube systems.

The jury verdict had resulted in an order that ultimately might have blocked sales of the Wii Classic Controller, as well as the WaveBird and Nintendo GameCube controllers no longer sold by Nintendo.

The Wii is Nintendo’s flagship product after replacing the GameCube as the company’s main home video-game system. The company, based in Kyoto, Japan, last month posted a 15 percent drop in second-quarter profit after demand for the Wii console and DS handheld players slumped.

The case is Anascape v. Nintendo of America, 10-301.

For more patent news, click here.

Trademark

Discovery’s Cake Boss Can Continue to Use Name, Court Rules

Discovery Communications Inc.’s “Cake Boss” television show can continue to use its name under a settlement agreement in a trademark case.

The reality-based TV program features highly decorated cakes created at Carlo’s City Hall Bake Shop in Hoboken, New Jersey. The Cake Boss himself is Bartolo “Buddy” Valastro, the master baker who owns the shop.

Valastro, Discovery and its Learning Channel unit were sued for trademark infringement in federal court in Seattle in March 2010. Masters Software Inc. of Cedar Park, Texas, a maker of the CakeBoss computer software used for baking instruction in culinary arts programs, claimed it was harmed and the public was used by the television program’s unauthorized use of the mark.

Masters had argued that the program’s audience and its potential software customers fell into similar categories. The company said it had received more than 90 e-mails and letters intended for the program, including requests for cakes made by Valastro.

Every time Cake Boss aired, the software company’s website was “compromised due to television fans attempting to find the Cake Boss television show website,” the company said in its complaint.

In July, U.S. District Judge Richard A. Jones barred the program’s use of “Cake Boss.” He lifted the order and dismissed the case in an Oct. 22 order, saying that the parties had stipulated to this result. No financial terms were disclosed.

The case is Masters Software Inc., v. Discover Communications Inc., 2:10-cv-00405-RAJ, U.S. District Court, Western District of Washington (Seattle).

Weather Channel Says Weather-Channel.org Domain Name Infringes

The Weather Channel Inc., the television station that broadcasts weather news 24 hours a day, sued the New Hampshire- based operator of a website for trademark infringement.

Eric Schifone of Nashua, New Hampshire, is accused of operating a website -- weather-channel.org -- that infringed on the television station’s trademarks. He’s accused of using the allegedly infringing domain name to offer “information and services of the same type” as offered by the Weather Channel.

The television station claims it’s been damaged and the public is confused by Schifone’s website. It said the inclusion of a hyphen and the “.org” top level domain indicator doesn’t sufficiently distinguish his efforts from the company’s trademarks.

Schifone offered to sell the allegedly infringing domain name to the Weather Channel, according to the complaint filed Oct. 29 in federal court in Atlanta. He also offered it for sale for $50,000 on an Internet auction website, flippa.com, the Weather Channel said in its pleadings.

It asked the court to bar Schifone’s use of what it says is the infringing domain name and that it be transferred to the Weather Channel instead. Additionally, the television station asked for awards of all of the defendants profits attributable to the alleged infringement, money damages, attorney fees and litigation costs.

The company also requested destruction of all infringing material in Schifone’s possession.

The Weather Channel is represented by Sabina A. Vayner, Judith A. Powell and Jessica Ash of Atlanta’s Kilpatrick Stockton LLP.

The case is The Weather Channel Inc. v. Eric Schifone, 1:10-cv-03531-RWS, U.S. District Court, Northern District of Georgia (Atlanta).

For more trademark news, click here.

Copyright

Axel Braun Turns to Adult Copyright Co. for Infringement Case

Axel Braun Productions, a maker of adult films, sued 7,098 unidentified defendants for infringing the copyright to its “Batman XXX: A Porn Parody.” The film company is represented by a lawyer from a company that works exclusively on adult-film copyright-infringement cases.

Kenneth J. Ford of the Adult Copyright Company of Charles Town, West Virginia, represents Axel Braun. According to the company website, Adult Copyright is devoted exclusively to the adult-film industry, which, it claims, has been harmed more by illegal file sharing than any other segment of the content industries.

Adult Copyright says on its website that it will pursue infringement claims against illegal downloaders of adult-film content ‘at no cost or expense to the rights holders.”

In the complaint filed Oct. 29 in federal court in Martinsburg, West Virginia, the Porter Ranch, California-based filmmaker said its product is infringed by unknown parties who use the BitTorrent protocol to distribute copies of the film. The use of this file-sharing method led to a “viral spreading” of its film without authorization.

Axel Braun claimed that each defendant lives in the federal judicial district of West Virginia, or “a substantial part of the acts of infringement” occurred there. The company said it has suffered “great and irreparable injury” at the hands of the alleged infringers.

The filmmaker asked the court for an order barring future infringement of its copyright, for money damages, and for awards of attorney fees and litigation costs.

The case is Axel Braun Productions v. Does 1-7098, U.S. District Court, Northern District of West Virginia (Martinsburg).

For more copyright news, click here.

Obituary

Pioneer Biotech Patent Lawyer Bertram I. Rowland Dies at 80

Bertram I. Rowland, the lawyer who drafted and obtained the patent on the Cohen-Boyer gene-splicing invention that kick- started the biotech industry, died of pancreatic cancer Oct. 28 at the age of 80.

Rowland drafted and managed the application process for more than 500 patents. In an account of his work on the Cohn- Boyer patent -- patent 4,237,224 -- published on a George Washington University website, Rowland said that one of the two inventors -- Stanford University’s Stanley Cohen -- initially insisted the invention had no commercial application and wasn’t patentable. During its lifetime, the patent generated more than $300 million.

Rowland had an undergraduate degree in chemistry from the University of California at Los Angeles, a doctorate in physical organic chemistry from the University of Washington and a law degree from George Washington. He worked for Chevron Corp. as patent counsel, had been a partner at the San Francisco firm now known as Townsend & Townsend & Crew LLP and at Leydig, Voit & Mayer Ltd. of Chicago.

He was president and chief executive of DrugAbuse Sciences Inc. and was a member of the executive team at Shalone Ventures of Palo Alto, California.

Rowland is survived by his wife and three children. A memorial is set for 2 p.m. Nov. 28 at Ralston Hall at Notre Dame de Namur University in Belmont, California.

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: David E. Rovella at drovella@bloomberg.net.

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