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J&J, Apple, Delta, Claiborne, Google: Intellectual Property

Abbott Laboratories, the maker of the arthritis drug Humira, succeeded in a bid to overturn a $1.67 billion patent-infringement verdict won by Johnson & Johnson.

The 2009 verdict, the largest patent-related damages award in U.S. history, was reversed yesterday by the U.S. Court of Appeals for the Federal Circuit in Washington, according to the court’s website. The three-judge panel ruled that patent 7,070,775, co-issued to New York University and J&J’s Centocor unit, is invalid.

The Federal Circuit ruled yesterday that J&J failed to show it described fully human antibodies in 1994, when it sought patent protection. The elements of the patent asserted against Abbott are therefore invalid because they don’t adequately describe the invention, the court said. Inventors are required to provide descriptions so others may emulate or build on the work.

“The evidence clearly showed that Abbott was first to invent a fully human anti-TNF antibody, Humira,” said Scott Stoffel, a spokesman for Abbott.

J&J, which sells the competing arthritis medicine Remicade, had convinced a jury that Abbott infringed the patent, which J&J said covered the human antibodies used in Humira. The appeals court ruled that J&J’s patent application never described fully human antibodies and said at most the claims “constitute a wish list of properties” that such an antibody would have.

“The opinion confirms that you can’t claim what you didn’t invent,” said William Lee of Boston’s WilmerHale, who represented Abbott in the case.

Rob Bazemore, president of the Centocor unit, said in a statement the company is considering whether to ask the panel to reconsider its decision or request that the case be heard by all active judges of the court.

Humira is Abbott’s biggest drug with $6.55 billion in sales worldwide last year, or about 18 percent of the Abbott Park, Illinois-based company’s total revenue, according to data compiled by Bloomberg. Remicade is J&J’s largest drug product, accounting for about 7.5 percent of the New Brunswick, New Jersey-based company’s business, or $4.61 billion in sales.

Humira blocks action of tumor necrosis factor, or TNF. When the body produces too much TNF, it can cause the immune system to attack healthy tissue and leads to inflammation.

J&J sued in 2007, seeking royalties and compensation for what it said was unauthorized use of the patent.

A federal jury in Marshall, Texas, agreed and in June 2009 said Abbott owed $504 million in patent royalties to J&J based on sales of Abbott’s Humira arthritis drug, plus $1.17 billion to compensate J&J for decreased sales of its competing treatments. The trial judge later added $175.6 million in interest, bringing the total to $1.84 billion.

Abbott has filed its own lawsuit against the Centocor unit, claiming J&J’s arthritis drug Simponi, made with human antibodies, is infringing an Abbott patent. It also claims a J&J psoriasis medicine, Stelara, violates two other patents. Those cases are pending in federal court in Worcester, Massachusetts.

Arthritis, which involves the breakdown of the cartilage protecting joints, affects one out of seven Americans, or 37 million people, according to the National Institutes of Health. Three of the largest drugs used to treat arthritis are Humira, Remicade and Enbrel, which generated $3.53 billion in sales last year for Thousand Oaks, California-based Amgen Inc.

The case is Centocor Inc. v. Abbott Laboratories, 10-1144, U.S. Court of Appeals for the Federal Circuit (Washington). The lower court case is Centocor Inc. v. Abbott Laboratories, 07cv139, U.S. District Court, Eastern District of Texas (Marshall).

Delta Must Face Virgin on Upper-Class Seating Patent, Court Says

Delta Air Lines Inc., the world’s second-biggest carrier, should go to trial over Virgin Atlantic Airways Ltd.’s claims it infringed a patent for its “upper-class” seating system, a U.K. appeals court ruled.

A November 2010 ruling in Delta’s favor erred because the patent covering the seating system applies to seats assembled off the aircraft, not just those on board, Justice Robin Jacob wrote at the Court of Appeal in London yesterday.

“The case must proceed to trial, where, I understand, Delta will take a number of other non-infringement points,” Judge Jacob wrote on behalf of a three-judge panel.

Virgin, the long-haul carrier controlled by billionaire Richard Branson, sued Atlanta-based Delta in 2008 for using seats for its first class section designed by Premium Aircraft Interiors Group Ltd., a U.K. aircraft-interior designer that was sued by Virgin a year earlier for about 49 million pounds ($79.6 million).

The ability to provide comfortable reclining seats on long- haul routes can play a vital part in the success of an airline, according to an earlier judgment in the case. When Virgin introduced its flat-bed seats in 2003 it increased its market share on long-haul routes by 12 percent, it said.

Delta spokeswoman Betsy Talton didn’t immediately return a call seeking comment yesterday.

Apple Seeks Patent on Method of Increasing Battery Capacity

Apple Inc., the Cupertino, California-based company that makes the iPod and iPhone, applied for a patent on a technology aimed at increasing the capacity of batteries used in electronic devices without increasing their size.

Application 20110037439, which was published in the database of the U.S. Patent and Trademark Office Feb. 17, is for a method of increasing the energy density in rechargeable lithium battery cells.

According to the application, increasing the coating for the batteries’ current collectors can improve the battery capacity. This could include coating surfaces of collectors with materials separated by an electrolyte separator.

Apple filed the application in September 2009 with the assistance of Park Vaughn Fleming & Dowler LLP of Davis, California.

For more patent news, click here.

Trademark

Claiborne’s Juicy Unit Claims Jesus Juice Infringes Marks

Liz Claiborne Inc.’s Juicy Couture unit sued a New York clothing company for trademark infringement.

According to the complaint filed Feb. 18 in federal court in Manhattan, marks used by Jesus Juice Coature LLOC confused the public. Juicy also claims that the name of Jesus Juice was deliberately chosen to trade on Juicy’s fame and that the spelling of “coature” is “a deliberate misspelling and play on the word ‘couture.’”

Juicy, based in Pacoima, California, says its products are sold in more than 30,000 retail stores and that the brand has been used and promoted by a range of Hollywood celebrities.

They include Jessica Biel, Gerard Butler, Adrien Brody, Ashton Kutcher, Madonna, Gwyneth Pantrow, Brad Pitt, Ben Affleck, Sarah Jessica Parker, Reese Witherspoon and Drew Barrymore, according to court papers.

Despite receiving multiple requests from Juicy, Jesus Juice continues actions that infringe the Juicy marks, according to court papers.

Juicy asked the court to order Jesus Juice to quit infringing the trademarks, and for destruction of all products and promotional material that has marks “confusingly similar” to the Juicy marks.

The company also asked for awards of money damages, attorney fees, and litigation costs, and Jesus Juice’s profits attributable to the alleged infringement.

Jesus Juice didn’t respond immediately to an e-mailed request for comment.

Claiborne acquired Juicy in April 2003.

Juicy is represented by Martin J. Feinberg of Olshan Grundman Frome Rosenzweig & Wolosky LLP of New York, and Kevin C. Parks and Nimita L. Parekh of Leydig Voit & Mayer Ltd. of Chicago.

The case is Juicy Couture Inc. v. Jesus Juice Coature LLC, 1:11-cv-01152-LTS U.S. District Court, Southern District of New York (Manhattan).

For more trademark news, click here.

Copyright

Google’s Belgian Copyright Appeal Could Decide European Policy

Google Inc. is fighting a Belgian ruling blocking it from publishing links to local newspapers on its online news service that could decide the fate of search engines and referencing services in Europe.

Google is appealing a 2007 Belgian court ruling that its news search breached copyright laws, forcing it to remove links and snippets of articles from French- and German-language newspapers. The judge in that case “seemed to have badly understood” the functioning of Internet search services, Google’s lawyers said.

“This case will have serious consequences to the way information is searched and managed” on the Internet, Eric Valgaeren, one of the lawyers representing Google, told the Brussels Court of Appeal in a hearing yesterday. “A negative ruling would put at risk all referencing services or even cause them to disappear.”

The court should “put an end to the hypocritical position” of the claimants and the “astronomical sums” they’re seeking, Valgaeren, a partner in the Brussels office of Stibbe firm, said at the hearing.

Copiepresse, a group that represents French and German- language newspapers, and an association that represents journalists on copyright issues, were among those that filed the original lawsuit after Google News was introduced in Belgium in 2006.

There is “no exception” for Google in copyright law, the Brussels court said in its Feb. 13, 2007, ruling. The court ordered Google to pay 25,000 euros ($34,300) a day until it removed news content from Belgium’s French- and German-language publications. Flemish newspapers didn’t join the case. Google had to remove articles, photos and graphics linked to the papers “from all its sites” and cached copies visible in searches.

The newspapers have a second lawsuit pending against Google in which they seek up to 49.1 million euros for the period in which their content was visible on Google News.

Google presented its arguments yesterday and the hearing is scheduled to resume in March. The Mountain View, California- based company gets no commercial benefit from linking articles because the news service is free, Nicolas Roland, another Google lawyer told the court.

Due to its potential implications for search engines across Europe, the case could end up in the European Union’s highest court. The Belgian tribunal could ask the 27-nation EU’s Court of Justice for guidance on how to interpret copyright rules in cases such as these, Petillion said.

Google and the newspapers had to wait longer than they wanted for this hearing. The slowness of some Belgian courts was partly to blame, said Margaret Boribon, secretary-general for Copiepresse. It took about two years from the end of the written procedure, where written arguments between the parties and the court are exchanged, to get a date for yesterday’s court hearing.

The Belgian newspapers argue Google News doesn’t generate enough traffic to their sites to make inclusion attractive. Google News no longer references the newspapers involved in today’s case. Only Google’s main search site lists the newspapers, such as La Libre Belgique and Le Soir, the most-read French-language daily in Brussels.

“If Google agrees to pay,” the newspapers will come back to Google News, said Boribon.

For more copyright news, click here.

IP Moves

WilmerHale Snares Munger Patent Litigator Andrea Weiss Jeffries

Wilmer Cutler Pickering Hale & Dorr LLP hired Andrea Weiss Jeffries for its Los Angeles IP practice, the Boston-based firm said in a statement yesterday.

Jeffries, a patent litigator, joins from Los Angeles-based Munger Tolles & Olson LLP. She has represented clients whose technologies have included computer memory, software, database technology, pharmaceutical formulations, medical devices and wireless communications. Jeffries served as a judicial clerk to Judge Harry L. Hupp of U.S. District Court for the Central District of California.

She has an undergraduate degree in chemistry from Duke University and a law degree from Stanford University.

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: John Pickering at jpickering@bloomberg.net.

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