Dow, Watson, Republic, Viacom: Intellectual Property

A unit of Bayer AG, Europe’s largest drug and chemical maker, sued a Dow Chemical Co. agroscience subsidiary in federal court in Delaware alleging infringement of a U.S. patent for herbicide-resistant crops.

Bayer CropScience AG of Monheim am Rhein, Germany, is seeking a jury trial, unspecified damages and an injunction against infringing sales by Indianapolis-based Dow AgroSciences LLC, according to a complaint filed Dec. 3 in Wilmington. In dispute is patent 6,153,401, which was issued in November 2000.

“Dow Agro has developed, manufactured, used and announced its plans to sell” transgenic corn, soybean and cotton plants and seeds in violation of the patent, Bayer said in court papers.

Dow said in a Nov. 2 statement that it’s pursuing an application to patent a “new class of herbicide tolerant traits,” including resisting the “2,4-D” herbicide -- which Bayer claims infringes the patent in today’s lawsuit.

“Dow AgroSciences was previously granted patents for crops containing this herbicide tolerant trait in New Zealand and South Africa,” and may use it in U.S. corn in 2012, and soybeans and cotton later, Dow said in its statement.

Bob Plishka, a Dow Chemical spokesman, couldn’t immediately comment on the lawsuit.

Bayer is represented by Frederick L. Cottrell III, Anne Shea Gaza, and Jeffrey L. Moyer of Richards, Layton & Finger PA of Wilmington.

The case is Bayer v. Dow, 1:10-CV-01045-UNA, U.S. District Court, District of Delaware (Wilmington).

U.S. Judge Orders Watson Executive to Comply With FTC Subpoena

A Watson Pharmaceuticals Inc. executive was ordered by a federal judge to comply with a U.S. Federal Trade Commission subpoena in a patent case involving Cephalon Inc.’s sleep- disorder drug Provigil.

Paul Bisaro, president and chief executive officer of Corona, California-based Watson, a generic-drug maker, “has failed to demonstrate” that the subpoena “would be burdensome at all, let alone unduly so,” U.S. District Judge Colleen Kollar-Kotelly wrote in her opinion.

AstraZeneca Raided By European Antitrust Officials

AstraZeneca Plc, the U.K.’s second-biggest drugmaker, and Nycomed A/S were raided by European Union antitrust officials as part of a probe into whether companies colluded to keep cheaper copies of medicines off the market.

The European Commission said it raided the premises of “a limited number” of pharmaceutical companies that may have slowed the sale of generic medicines. AstraZeneca said inspections at its premises concerned the ulcer drug Nexium.

“We have the responsibility to ensure that consumers are not charged unjustified bills for their medical needs,” said EU Competition Commissioner Joaquin Almunia, in the text of a speech in Brussels Dec. 3. “I will continue to enforce with determination competition rules in the pharmaceutical sector.”

Antitrust regulators on both sides of the Atlantic are focusing on how settlements between branded-drug makers and generic manufacturers might harm consumers. Makers of generics are vying for a share of the ulcer-treatment market after AstraZeneca lost European patent protection on Nexium sales in March. The pill had sales of $912 million in Western Europe, out of a worldwide total of $3.74 billion, in the first nine months of this year.

The commission “has reason to believe” that the companies “may have acted individually or jointly, notably to delay generic entry for a particular medicine,” the EU executive, which declined to name the drugmakers, said in an e-mailed statement Dec. 3. “This could be a potential violation of EU antitrust rules.” The raids took place Nov. 30, it said.

The commission said in a report last year that companies use a variety of techniques to delay “for as long as possible” the introduction of generics.

“We can confirm we are subject of inspections by certain competition authorities which relate to alleged practices regarding esomeprazole (Nexium) in Europe,” AstraZeneca, based in London, said in an e-mailed statement. “We are cooperating with the authorities.”

AstraZeneca faced generic competition in Germany during the third quarter from companies including Teva Pharmaceutical Industries Ltd. and Ratiopharm GmbH. Teva, the world’s biggest maker of generic drugs, agreed in March to buy Ratiopharm.

Yossi Koren, a spokesman for Petah Tikva, Israel-based Teva, declined to comment on the EU probe. Ratiopharm wasn’t visited by antitrust officials, said spokesman Markus Braun.

Two German sites of closely held Nycomed were raided by antitrust officials, Beatrix Benz, a spokeswoman for the Zurich- based company, said in an e-mail. The company will “fully co- operate with the authorities,” she said.

Drugmakers are “acutely aware” of antitrust rules, Andrew Witty, chief executive of GlaxoSmithKline Plc, said at a conference in Brussels today. Patents are “continuously being tested” in the courts and “that’s what keeps the system healthy.”

Glaxo wasn’t involved in the antitrust probe, said David Daley, a spokesman for the U.K.’s biggest drugmaker.

Amelia Torres, a commission spokeswoman, declined to comment beyond the statement. Colin Mackay, a spokesman for the European Federation of Pharmaceutical Industries & Associations, declined to comment.

Securus Sues Centric Group Unit Over Patent Royalty Negotiations

Securus Technology Inc. and T-Netix Inc., providers of telephone services for the incarcerated, sued a unit of St. Louis-based Centric Group LLC for patent infringement.

The suit related to the acquisition of Inmate Calling Solutions LLC by Centric Group’s Keefe Group, according to the complaint filed Dec. 3 in federal court in Dallas.

Inmate Calling Solutions, based in San Antonio, took a license to two patents owned by Securus predecessor Evercom and T-Netix. Both patent owners are based in Dallas.

The disputed patents -- 6,560,323, issued in May 2003, and 5,319,702, issued in June 1994 -- had been the subject of a 2006 patent-infringement case they filed against ICS in federal court in Marshall, Texas.

According to the complaint filed in the new case, the license agreement stemming from the settlement ended Nov. 30. Between April and May, Securus and T-Netix negotiated new terms with Inmate Calling Solutions.

Securus and T-Netix said in their pleadings that ICS didn’t disclose that it was on the verge of acquisition by the Keefe Group. That acquisition “completely undermined the assumptions as to ICS’s growth potential” that formed the basis of the negotiations, according to the complaint.

The acquisition took place in July, according to a filing to the New York Department of Public Service that was included in the case file.

Because the Keefe group is “a very substantial company” and “enjoys a very large customer base” ICS will likely experience “exponential growth” in a short period of time, the patent owners said in their suit.

This growth should be reflected in the patent royalties, which are “substantially lower” than they would have been had T-Netix and Securus known of the coming acquisition, they said in their pleadings. The presently royalty that was negotiated is “wholly inadequate under the circumstances,” they claim.

Because the license has expired without being renewed, the patent owners claim ICS is now infringing the patents.

They asked the court to order new negotiations for the license agreement, for awards of money damages for the alleged infringement, and attorney fees and litigation costs. Additionally, they asked for court orders barring the use of the patented technology, and for a tripling of damages.

The patent owners are represented by G. Michael Gruber, Anthony J. Magee, Michael J. Lang and Demarron A Berkley of Dallas-based Gruber, Hurst, Johansen & Hail LLP.

The case is T-Netix v. Inmate Calling Solutions LLC, 3:10- cv-02458-M, U.S. District Court, Northern District of Texas (Dallas).

For more patent news, click here.

Trademark

Republic Sues World Avenue, Claims Gift Cards Offered Infringe

Republic Airways Holdings Inc. and its Frontier Airlines unit filed a trademark-infringement case against the operator of a website offering gift cards as consumer incentives.

The carriers sued World Avenue USA LLC of Sunrise, Florida, three other named defendants and 10 unnamed defendants in federal court in Denver Dec. 1. The website makes unauthorized use of the Frontier trademarks in its offerings of free gift cards, the airline said in its court papers.

World didn’t respond immediately to an e-mail requesting comment.

According to an exhibit filed with the complaint, World Avenue had previously been the target of a consumer-protection suit filed in Florida state court in August 2007 by the state’s attorney general.

Both suits relate to pop-up windows that promise free merchandise in return for meeting certain requirements, typically filling out questionnaires and surveys. Republic alleges that World Avenue has been offering Frontier Airlines gift cards without authorization as incentives.

On its website, World Avenue says it has previously been investigated by the attorneys general of Florida and Texas. The Florida investigation closed in January 2008, and the attorney general’s suit was dismissed. World Avenue said in a statement at that time that the suit related to its use of “Free” in Internet ads, and that the attorney general “made no determination that the company had violated any law, rules or regulations.”

World Avenue said it made a $1 million contribution to the Florida Department of Legal Affairs’ Revolving Trust Fund “to assist with future efforts in developing industrywide standards and best practices.” It also said it voluntarily agreed “to make certain changes to minimize the potential for any possible misunderstanding by consumers.”

World said in a May 2008 statement that there had been “no determination that the company had violated any law, rules or regulations” in the investigation by the Texas attorney general.

World said that “in its bid always to be a responsible corporate citizen,” it agreed to reimburse the attorney general’s office for its investigation expenses.

Republic also named as defendants World Chairman Niuniu Ji and Online Reward Center, a name under which it said World does business.

Republic asked the court to order the defendants to quit using any of the Frontier marks without authorization, and for money damages, attorney fees and litigation costs. The airline also asked that damages be tripled and that profits relative to the alleged infringement also be awarded.

The airline is represented by Benjamin Vetter, Lucy Arnold, Mark N. Mutterperl and Chehrazade Chemcham of Houston-based Fulbright & Jaworski LLP.

For more trademark news, click here.

Copyright

Viacom Seeks to Overturn YouTube Copyright Ruling

Viacom Inc., operator of the MTV and Comedy Central cable- television channels, told a U.S. appeals court that Google Inc.’s YouTube video-sharing website failed to take steps to halt what it knew was unauthorized posting of copyrighted material.

In a brief filed in the New York-based federal appeals court Dec. 3, Viacom argued that a lower-court judge was wrong to rule that YouTube is protected from infringement claims by the “safe harbor” provision of the Digital Millennium Copyright Act.

“YouTube indisputably was aware of massive infringement,” New York-based Viacom argued in its opening brief in the appeal. “If it wished to remain in the safe harbor, it was obligated to take reasonable steps (no heroic acts required) to prevent further infringement.”

In the appeal, filed in August, Viacom seeks to reinstate its 2007 suit against YouTube, in which it claimed more than $1 billion in damages for alleged violation of its copyrights for programs including “South Park” and “The Daily Show With Jon Stewart.”

U.S. District Judge Louis Stanton dismissed the suit in June, ruling that YouTube didn’t infringe Viacom’s copyrights because it’s protected by the safe-harbor provision of the federal Digital Millennium Copyright Act. Under that provision, a service provider isn’t liable if it removes infringing material when notified by the copyright owner.

“We regret that Viacom continues to drag out this case,” Aaron Zamost, a spokesman for Mountain View, California-based Google, said in an e-mailed statement. “The court here, like every other court to have considered the issue, correctly ruled that the law protects online services like YouTube, which remove content when notified by the copyright holder that it is unauthorized.”

The case is Viacom International Inc. v. YouTube Inc., 10- 3270, 2nd U.S. Circuit Court of Appeals (Manhattan).

Gawker Sued Over Use of Artist’s Representation of Dante’s Hell

Gawker Media LLC, publisher of the Kotaku video-gamer website, was sued for copyright infringement by a Maryland who claims the company used her rendering of Dante’s Inferno without permission.

Lindsay McCulloch, a professor of visual arts at Anne Arundel Community College, is the creator of an illustration of Hell as described in Dante Alighieri’s “La Divina Commedia.”

According to the complaint, filed in federal court in Manhattan, McCulloch drew upon her undergraduate and graduate theses, both of which focused on the Italian poet’s 14th-century work.

She claims that Gawker used her illustration in discussions of Electronic Arts Inc.’s “Dante’s Inferno” video game, released in February 2010. According to court papers, Gawker Media posted an unauthorized digital copy of her work on a number of websites, including Kotaku, io9, Deadspin, Gizmodo, Jalopnik, Jezebel and Lifehacker, as well as its main Gawker site.

“We deny the allegations and maintain that our use is fair,” Gaby Darbyshire of Gawker said in an e-mail.

McCulloch asked the court to order Gawker to quit infringing her copyright, and to order the destruction of any digital copies of images incorporating her art, together with an award of all profits Gawker realized through the alleged infringement.

She’s represented by Shourin Sen of the Law Office of Shourin Sen in New York.

The case is Lindsay McCulloch v. Gawker Media LLC, 1:10-cv-08602-JGK, U.S. District Court, Southern District of New York (Manhattan).

For more copyright news, click here.

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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