For two years, Apple Inc. (AAPL) has told the world that phones running on Google Inc.’s Android operating system are iPhone rip-offs. Now Apple is about to learn whether a U.S. trade agency thinks its claims have merit.
The International Trade Commission is set to rule Dec. 14 in a patent complaint lodged by Apple against rival smartphone maker HTC Corp. (2498) The decision, postponed from the original date of tomorrow, would mark the first final verdict from any judicial entity in Apple’s global patent war against HTC and fellow Android-phone makers Samsung Electronics Co. (005930) and Motorola Mobility Holdings Inc.
A ruling for Apple may lead to a ban on U.S. imports of HTC devices, derailing the Taoyuan, Taiwan-based company’s trajectory from a small contract manufacturer founded in 1997 to the biggest U.S. smartphone seller in the third quarter. A victory for HTC may help it secure favorable terms in any settlement with Apple.
“In the past two years, HTC has emerged essentially from obscurity by promoting their own brand and high-end phones, and they’ve largely been able to do this by leveraging Android,” said Alex Spektor, an analyst with Strategy Analytics Inc.
HTC generated about $5 billion in U.S. sales last year, according to a separate patent complaint it filed at the trade agency against Cupertino, California-based Apple. That’s more than half of HTC’s $9.1 billion (NT$275 billion) in global 2010 sales.
HTC sold 24 percent of the smartphones in the U.S. during the third quarter, ahead of Samsung’s 21 percent and Apple’s 20 percent, Canalys reported Oct. 31. The Android platform accounts for almost 70 percent of the U.S. smartphone market, the Palo Alto, California-based researcher said. There were 120.4 million smartphones worldwide in the third quarter, a 49 percent jump from the year-ago period, Canalys said.
HTC’s Android phones, introduced in 2008, infuriated Steve Jobs, according to Walter Isaacson’s biography of the late Apple founder. Jobs made it his mission “to destroy Android,” which he said “ripped off the iPhone, wholesale,” according to the book.
Apple contends that HTC’s Android phones infringe four Apple patents, including one for a system to detect telephone numbers in e-mails so they can be stored in directories or called without dialing the numbers. The commission is reviewing an agency judge’s findings that HTC infringed that patent and one covering the transmission of multiple types of data, along with two other Apple patents that the judge said weren’t infringed.
The case is one of about a dozen before the commission related to the dispute over Android devices. Microsoft is fighting with Motorola Mobility and Barnes & Noble Inc., while Apple has legal disputes with HTC, Samsung and Motorola Mobility around the world.
The case is In the Matter of Certain Personal Data and Mobile Communications Devices and Related Software, 337-710, U.S. International Trade Commission (Washington).
Google’s Schmidt Says Patents Shouldn’t Block Innovation
“It is very important that patents are not used to stop things,” Schmidt said in a Brussels speech yesterday at the Innovation Convention organized by the European Commission.
Blood-Test Case at Top U.S. Court May Send Patent ‘Shock Waves’
Computer, drug and biotechnology companies have a message for the U.S. Supreme Court as it prepares for arguments this week on patents for diagnostic medical tests: Be careful.
Companies, trade groups and lawyers have filed more than two dozen legal briefs, many warning that the court’s ruling might have widespread, unintended ramifications.
“The claims have to do with diagnostic methods, but it has the potential to touch industries we don’t know about,” said Erika Arner, a Washington lawyer who filed a brief asking the the court not to restrict software and computer patents.
Because the court will consider the most fundamental question in patent law -- what can be patented -- the ruling “will or could have shock waves across all industries,” said Arner, who represents SAP America Inc., a business-software maker based in Newtown Square, Pennsylvania.
The case, to be heard on Dec. 7, will test the longstanding principle that natural phenomenon can’t be patented. A lower court ruled that two patents now owned by Nestle SA’s Prometheus unti were potentially valid because they involve the application of a law of nature, not the law itself.
The patents cover a method for determining the proper dosage of thiopurine, a stomach medicine, based on the rate at which particular patients metabolize the drug. Doctors can use the method, which involves testing blood for metabolites, to maximize effectiveness and limit toxic side effects while treating Crohn’s disease and other inflammatory bowel illnesses.
Prometheus is suing two units of the Mayo Clinic, the not- for-profit medical practice based in Rochester, Minnesota. Mayo licensed the patents until 2004, when it created its own test.
Mayo contends the patents would give Prometheus a monopoly over all uses of the natural relationship between the metabolites created by thiopurine and the drug’s impact on the human body. The patents are so broad they would bar doctors familiar with the Prometheus method from even thinking about the connection between metabolite levels and the proper dosage for a patient, Mayo’s lawyers say.
Prometheus counters that its patents concern concrete applications of scientific principles, which the Supreme Court has long said fall within the scope of the U.S. Patent Act.
The case may have its greatest impact on the field of personalized medicine, an emerging practice that involves determining whether a patient is genetically susceptible to a particular disease or would be especially responsive to certain treatments. Two companies focusing on that field, Myriad Genetics Inc. and Novartis AG, are backing Prometheus.
The American Medical Association says the exact opposite is the case.
“Patents on scientific observations threaten to stifle innovation, including the development of personalized medicine,” the AMA and 10 other medical groups said in court papers backing Mayo.
Mayo also has the support of Verizon Communications Inc. (VZ), Hewlett-Packard Co., Laboratory Corporation of America and AARP, which represents older Americans.
The Obama administration is urging the court to take a middle ground.
“The mixing of chemical substances for a useful result is a quintessential patent-eligible process,” the government argued in court papers. A ruling declaring those types of methods ineligible “would cast doubt on a host of patents for transformative medical processes that are novel and non- obvious.”
The case is Mayo Collaborative Services v. Prometheus Laboratories, 10-1150, U.S. Supreme Court (Washington).
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New College, Oxford, Seeks Trademark Registration in U.K.
University of Oxford’s 632-year-old New College is seeking U.K. registration of its name as a trademark in the wake of an application filed to register London-based New College of the Humanities as a trademark, the BBC reported.
A spokeswoman for private for-profit New College of the Humanities, which hasn’t yet admitted any students, told the BBC she didn’t think there would be any confusion over the two names given the older school’s “great heritage” and her institution’s “distinct positioning around humanities and social science.”
New College, Oxford, one of the university’s constituent colleges, is seeking registration for its entire name because “New College” by itself is considered too broad for protection, the BBC reported.
Its application covers a wide range of uses, including cufflinks, wastebaskets and umbrellas, according to the BBC.
Non-Kardashian Seeks Registration for ‘KardashianLash’ Trademark
A resident of Beverly Hills, California, filed an application to register “KardashianLash” as a trademark, according to the database of the U.S. Patent and Trademark Office.
In the application she filed Nov. 9, Sarah Ehrlich said she plans to use the mark with “medicated liquid eyeliner for the purpose of enabling eyelash growth.”
Ehrlich’s application has raised the ire of the Kardashian family of reality-television performers, who are threatening an infringement lawsuit, according to the celebrity gossip website TMZ.com. Ehrlich told TMZ.com she didn’t think the Kardashians would mind and that she would sell her product to finance cosmetology school for Honduran orphans.
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Jolie’s Film Accused of Infringement by Bosnian Journalist
The actress, who is making her directorial debut with the film, is accused of infringing copyrights to the Croatian- language book “The Soul Shattering” by James J. Braddock.
In the complaint he says his book and Jolie’s film “share similarities so substantial” that the production and distribution of the film constitutes copyright infringement.
Braddock cites many similarities between the book and the film, including the fact that both are love stories taking place in Bosnia and Herzegovina in the early 1990s, the main female character is Muslim, and in both works, she is subject to abuse and rape by soldiers and officers. He says that the main male character in both works is a high-ranking “Greater Serbian” nationalist and army officer.
He claims that he met repeatedly with a Bosnian resident and film producer who is a co-defendant with Jolie, and that they discussed making a film from his book. He learned of Jolie’s film in 2010, and that the Bosnian film producer was “actively involved in its production.”
Braddock, who is also known as Josip J. Knezevic, asked the court for money damages, and awards of litigation costs and attorney fees. Additionally, he asked for an order barring the distribution and performance of the film.
One of the other co-defendants is GK Films of Santa Monica, California, producer of the film. GK didn’t respond immediately to an e-mailed request for comment.
The case is James J. Braddock v. Angelina Jolie, 11- cv-08597, U.S. District Court, Northern District of Illinois (Chicago).
Copyrights, Images From Early Marilyn Monroe Photo Shoot Sold
The photos, taken in 1946, before the actress changed her name from Norman Jeane Dougherty, came with negatives and the right to sell and distribute the images, according to AP.
The sale was part of the “Icons & Idols” auction in Beverly Hills, California, and also featured a dress worn by pop singer Lady Gaga.
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Trade Secrets/Industrial Espionage
Maine Town Uses Secret to Build Free-Standing Lobster Trap Tree
The town of Rockland, Maine, says its municipal lobster- trap Christmas tree uses a trade secret engineering method so it doesn’t have to be anchored to the ground, according to the Bangor Daily News.
Because of this trade secret, Rockland is claiming it has Maine’s tallest freestanding lobster-trap tree, even though its tree is lower than those constructed in other nearby towns, the Bangor Daily News reported.
Rockland uses red and green lobster traps that are specially constructed for use in the tree, financed by a raffle that will award 100 of the traps to the raffle winner, according to the newspaper.
The lobster-trap Christmas tree will be featured Dec. 10 on “Extreme Christmas Trees” on Discovery Communications Inc.’s (DISCA) TLC channel, the Bangor Daily News reported.
Kelley Drye Hires IP Litigator Paul Garcia From Kirkland & Ellis
He has represented clients in trademark, trade secret, trade dress and false advertising disputes involving such technologies as pharmaceutical products, food items, satellite television and auto manufacturing.
He has an undergraduate degree in Political Science and Hispanic Studies from Vassar College, and a law degree from the University of Chicago.
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