Apple Inc. (AAPL)’s patent complaint that seeks to block imports of Samsung Electronics Co.’s Galaxy S mobile phone and Galaxy Tab computer will be reviewed by the U.S. International Trade Commission.
The ITC, a quasi-judicial agency in Washington that arbitrates trade disputes, said in a notice yesterday it instituted the investigation. The commission, which typically takes 15 to 18 months to complete the review, has the power to block imports of products that infringe U.S. patents.
Apple and Samsung have each lodged patent-infringement cases against each other in the U.S., Europe, Asia and Australia. The ITC last week said it would investigate a complaint Suwon, South Korea-based Samsung filed to block imports of Cupertino, California-based Apple’s iPhone and iPad.
Apple, which has accused competitors of “widespread imitation,” has taken particular aim at Samsung, which had been a supplier of chips for some Apple devices. Apple contends that the Galaxy phone and tablet “slavishly” copy the iPhone and iPad.
The new case is In the Matter of Certain Electronic Digital Media Devices, 337-796, and Samsung’s case is In the Matter of Mobile Electronic Devices, including Wireless Communication Devices, Portable Music and Data Processing Devices, and Tablet Computer, 337-794, both U.S. International Trade Commission (Washington.)
Google Loses Bid to Seal Records in Patent Case With Oracle
Google Inc., the world’s largest Internet search company, lost a bid to seal papers in a patent-infringement lawsuit filed last year by a unit of software maker Oracle Corp. (ORCL)
Claiming attorney-client privilege, Google sought to protect parts of a transcript of a hearing about expert witnesses containing references to a company document, U.S. District Judge William Alsup in San Francisco said in an order Aug. 1.
The document is “an incomplete draft of an e-mail message” and “never was sent to anyone,” Alsup wrote in denying Mountain View, California-based Google’s request. “Thus, the document is not a communication of any type, much less a communication protected by the attorney-client privilege.”
Oracle America Inc., based in Redwood City, California, sued Google, alleging patent infringement over the use of Java technology in Google’s Android operating system in an Oct. 27 amended complaint.
Alsup wrote in a July 22 filing that the passage in question was from an internal e-mail in 2010 to Google executive Andy Rubin saying “the technical alternatives to using Java for Android ‘all suck’ and stating, ‘we conclude that we need to negotiate a license for Java under the terms we need.’”
“We aren’t commenting on this,” Katelin Todhunter- Gerberg, a Google spokeswoman, said in an e-mailed message.
The case is Oracle America Inc. v. Google Inc. (GOOG), 3:10-cv- 03561, U.S. District Court, Northern District of California (San Francisco).
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Georgia-Pacific Loses Appeal in Toilet Paper Trademark Case
Koch Industries Inc.’s Georgia-Pacific unit lost its appeal of a lower court’s trademark decision involving a pattern used on its toilet paper.
Georgia-Pacific sued Kimberly-Clark Corp. in federal court in Chicago in April 2009, accusing the Dallas-based company of infringing trademarks associated with a quilted diamond design it used on its Quilted Northern toilet paper.
The Atlanta-based Koch unit objected to the design Kimberly-Clark was using on its Cottonelle Ultra and Scott Kimberly-Clark Professional brands of toilet paper.
A trial court judge agreed with Kimberly-Clark that the design was functional and therefore not eligible for protection as a trademark. Georgia-Pacific then filed its appeal to a Chicago-based federal appeals court.
In an opinion released by the court July 28, a three-judge panel affirmed the lower court ruling. Senior Judge Terrence Thomas Evans noted in the decision that 675,000 pages of documents were produced in connection with the case and more than a dozen witnesses were deposed.
“That’s quite a record considering, again, that this case is about toilet paper,” Evans said in the ruling.
“Who really pays attention to the design on a roll of toilet paper?” Evans wrote. “The parties are quick to inform us that in a $4 billion industry, designs are very important. Market share and significant profits are at stake.”
The appeals court found that Kimberly-Clark “produced strong evidence of functionality, and Georgia-Pacific has failed to prove that the design is incidental.”
The court also rejected Georgia-Pacific’s contention that the depiction of the quilted design on the Kimberly-Clark toilet paper’s packaging infringed. Because the design is functional and not protectable under trademark law, the court said the accurate depiction of that design also isn’t capable of infringement.
The lower court case is Georgia-Pacific Consumer Products LP v. Kimberly-Clark Corp. (KMB), 1:09-cv-02263, U.S. District Court, Northern District of Illinois (Chicago).
The appeals court case is Georgia-Pacific Consumer Products LP v. Kimberly-Clark Corp., 10-3519, 7th U.S. Circuit Court of Appeals (Chicago).
Valio Takes on Olvi, Pouttu in Finnish Trademark Disputes
Valio Finnish Co., Finland’s largest dairy, is suing two companies over the right to use the Finnish words “olo” (feeling) and “onni” (happiness), the Helsingin Sanomat newspaper reported.
Valio is arguing to the Helsinki District Court that Olvi hasn’t used its “Raikas Kevyt Olo” (fresh light feeling) brand for five years, so the mark should be unlisted, the newspaper reported.
The dairy made a similar argument with respect to Pouttu’s Onni trademark, according to the newspaper.
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Abdul-Jabbar’s Film Company Settles Suit with Black Fives
A film company headed by basketball player Kareem Abdul- Jabbar settled a copyright-infringement lawsuit brought by a Connecticut company that promotes the history of African- American participation in basketball, according to a court filing.
Black Fives Inc., of Greenwich, Connecticut, sued Union Productions LLC in federal court in Manhattan in March, alleging the film company infringed its copyright and trademarks. The suit was occasioned by the release of “On the Shoulders of Giants,” a film celebrating the Harlem Renaissance basketball team.
Union Products was accused of unauthorized use of a photo of the late John Isaacs, a member of the Renaissance team. The complaint also alleged that the film infringed trademarks associated with the team -- also known as the “Rens” -- and registered to Black Fives.
In addition to orders seeking the recall and destruction of all infringing products and promotional materials, Black Fives had asked the court for awards of money damages, litigation costs and attorney fees. No terms of the settlement were disclosed in July 28 court filing ending the case.
Black Fives was represented by Kimberly N. Reddick of Gibbons PC of Newark, New Jersey. No counsel is listed in the court file for Long Beach, California-based Union Productions.
The case is Black Fives Inc., v. Union Productions LLC, 1:11-cv-02148-DAB, U.S. District Court, Southern District of New York (Manhattan).
Disney Wins Dismissal of ‘Cars’ Copyright-Infringement Suit
British writer Jake Mandeville-Anthony sued Disney in March, claiming his copyrights for “Cookie & Co.” and “Cars/Auto Excess/Cars Chaos” were infringed. His works were based on the true-life adventures of Michael Owen Perkins and Brian Mullineaux, who won the 1988 London to Sydney Vintage Car Endurance Rally, Mandeville-Anthony said in his complaint.
In a July 27 order, U.S. District Judge Valerie Baker Fairbank dismissed the case. She determined that Disney showed that the protectable elements of plot, sequence of events, pace, characters, theme, mood and setting “are not substantially similar as a matter of law” to Mandeville-Anthony’s.
Mandeville-Anthony was represented by Nicholas Allen Kurtz of Leesburg, Virginia’s Dunlap Grubb & Weaver PLLC. Disney was represented by in-house counsel Alexander A. Myers and David R. Singer, and Sanford M. Litvack of Washington’s Hogan Lovells US LLP. Litvack is Disney’s former general counsel.
The case is Jake Mandeville-Anthony v. The Walt Disney Co., 2:11-sv-02137-VBF-JEM, U.S. District Court, Central District of California (Los Angeles).
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Trade Secrets/Industrial Espionage
Ex-TCW Employee Testifies of Search for Office Before Firing
DoubleLine Capital LP employee Barbara VanEvery testified she started looking for office space before TCW Group Inc. fired her and Jeffrey Gundlach in 2009, saying she was trying to be prepared if they were terminated.
“I was under the impression that something was going to happen by December,” VanEvery told jurors yesterday in the trade-secrets case being tried in state court in Los Angeles. “It was coming to a head. I felt there was going to be some kind of separation.”
Gundlach, 51, was the investment chief at TCW, the Los Angeles-based unit of Societe Generale. (GLE) He started DoubleLine in December 2009, within weeks of TCW firing him. TCW sued Gundlach a month later, after half of its fixed-income professionals joined DoubleLine. Gundlach countersued, saying he was fired so that TCW wouldn’t have to pay him hundreds of millions of dollars in performance fees.
While he was at TCW, Gundlach managed or oversaw about $70 billion of the company’s $110 billion in assets, according to the May 14, 2010, amended cross-complaint.
TCW clients withdrew about $25 billion after Gundlach was fired. TCW said in its complaint that Gundlach lied to its clients in a series of webcasts with them in December 2009 to incite them to join DoubleLine and to malign TCW’s newly acquired fixed-income management unit, Metropolitan West Asset Management LLC.
DoubleLine claims TCW clients started withdrawing billions of dollars immediately after Gundlach was fired and before any webcasts.
The case is Trust Co. of the West v. Gundlach, BC429385, California Superior Court, Los Angeles County.
Baker Donelson Hires Bayer CropScience’s Top Patent Counsel
Baker Donelson Bearman Caldwell & Berkotitz PC hired Richard E.L. Henderson for its intellectual-property practice group, the Memphis, Tennessee-based firm said in a statement.
Henderson joins from Bayer AG (BAYN)’s Bayer CropScience unit, where he was senior patent counsel and head of the patent group. He has also served as patent counsel for Bayer’s Industrial Chemicals Division. Before that, he was a patent attorney at Merck & Co.
He does patent and trademark acquisition and IP-related transactional work.
He has an undergraduate degree from the University of North Carolina, a doctorate in organic chemistry from the University of Illinois and a law degree from the Chicago-Kent College of Law.
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