Nestle, Shire, AstraZeneca, Apple: Intellectual Property

The U.S. Supreme Court put new limits on the availability of patents for diagnostic medical tests, ruling in favor of the Mayo Clinic in a decision that will shape the growing field of personalized health care.

In yesterday’s ruling the justices said two patents owned by Nestle SA (NESN)’s Prometheus unit are invalid because they cover a natural phenomenon. Prometheus argued that the patents concerned an application of a law of nature, not the law itself.

The case tested the types of medical inventions that are eligible for legal protection. Companies, trade groups and lawyers filed more than two dozen legal briefs, many warning that the court’s ruling might have widespread, unintended ramifications. Each side in the case said a defeat might stifle innovation.

Writing for the court, Justice Stephen Breyer pointed to “a concern that patent law not inhibit further discovery by improperly tying up the future use of laws of nature.”

Patent protection is important for companies that are focusing on personalized medicine, including Myriad Genetics Inc. (MYGN) and Novartis AG. (NOVN) The field involves determining whether a patient is genetically susceptible to a particular disease or would be especially responsive to certain medicines.

The dispute divided companies. Verizon Communications Inc., Hewlett Packard Co. and Laboratory Corp. of America Holdings backed Mayo, arguing for patent limits. Trade groups for the biotechnology and pharmaceutical industries, along with SAP America Inc., sided with Prometheus.

Prometheus sued two units of the Mayo Clinic, the nonprofit medical practice based in Rochester, Minnesota. Mayo at one point shipped patient samples to Prometheus and paid the company to perform the test. That relationship ended in 2004, when Mayo created its own test.

The decision reversed a ruling by the U.S. Court of Appeals for the Federal Circuit, which specializes in patent issues.

Nestle, based in Vevey, Switzerland, acquired Prometheus last year.

Myriad, Novartis, Laboratory Corp. of America’s Monogram Biosciences and Genomic Health Inc. (GHDX) all have urged that diagnostic methods be patentable. Monogram and Genomic Health told the Supreme Court in 2009 that they would have difficulty getting funding without patent protection.

The case is Mayo Collaborative Services v. Prometheus Laboratories, 10-1150.

Apple Fails to Wrest Android Data From Motorola Mobility

Apple Inc. lost a bid to force Motorola Mobility Holdings Inc. to turn over data about Google Inc.’s development of its Android mobile-phone operating system and planned acquisition of the mobile phone manufacturer.

U.S. Circuit Judge Richard A. Posner, who in June will preside over back-to-back patent trials pitting Apple against Motorola, denied the production request in a single-paragraph order issued March 19.

“The motion is vague and overbroad and Motorola’s objections are persuasive,” Posner wrote. The mobile phone maker’s opposition to Apple’s March 16 demand was filed under seal.

Google last month received U.S. and European Union approval for its planned $12.5 billion acquisition of Libertyville, Illinois-based Motorola Mobility, which already makes phones reliant upon the Android system.

Google, based in Mountain View, California, would also acquire about 17,000 patents. In a regulatory filing yesterday, Motorola said it expected the sale to close in the first half of this year, while adding that it can provide no assurances the transaction will be approved by China.

Apple, based in Cupertino, California, makes the rival iPhone which runs on the company’s own proprietary software.

Motorola Mobility, which spun off from Motorola Inc. last year, has been warring with Apple over patent rights in U.S. and European courts.

Posner on March 5 ordered Motorola to produce the information sought by Apple on its pending acquisition and the Android development data. In its March 16 filing, Apple told the court Motorola hadn’t yet complied.

Appended to that filing was a copy of a March 16 e-mailed message from Motorola attorney Amanda Williamson to Apple counsel Robert Vlasis objecting to the scope of some of Apple’s information requests.

“If Apple desires a further court order compelling production of data within the scope of the March 5 order,” Posner said in his order, “it will have to narrow its request to a manageable and particularized set of documents.”

The case is Apple Inc. v. Motorola Inc., 11-cv-08540, U.S. District Court, Northern District of Illinois (Chicago).

Shire Signs $190 Million Drug Licensing Pact With Heptares

Shire Plc (SHP) will pay closely held Heptares Therapeutics as much as $190 million to license an experimental treatment targeting disorders of the central nervous system.

The amount includes an upfront fee and future milestone payments, the companies said yesterday in a statement. Hertfordshire, England-based Heptares will additionally receive royalties on any future sales of the treatment.

Shire, based in Dublin with headquarters in Basingstoke, England, will get rights to develop a new type of compound called an adenosine A2A antagonist. Shire and Heptares plan to develop therapies for a range of central nervous system disorders by blocking the A2A receptor in the brain, the companies said.

AstraZeneca Won’t Seek Approval for Targacept Antidepressant

AstraZeneca Plc (AZN) said it won’t seek regulatory approval of an experimental antidepressant licensed from Targacept Inc. (TRGT) after the compound failed in its two remaining late-stage studies.

The setback may further test AstraZeneca’s strategy of avoiding large acquisitions since its 2007 purchase of MedImmune Inc. for about $15.2 billion. AstraZeneca’s second-best-selling drug, Seroquel for schizophrenia, loses U.S. patent protection in March, while the patent on Nexium for ulcers, the third- biggest seller, expires in 2014. Together the two medicines generated more than $10 billion in sales last year.

AstraZeneca will take an impairment charge of $50 million, the London-based drugmaker said yesterday in a statement. AstraZeneca and Targacept were testing the drug, known as TC-5214, as an adjunct treatment for major depressive disorder.

AstraZeneca had licensed the depression treatment from Winston-Salem, North Carolina-based Targacept in 2009 in a deal valued at as much as $1.24 billion. Targacept shares fell 36 percent on Dec. 20 after the two drugmakers said TC-5214 had failed in the second of four late-stage trials.

For more patent news, click here.

Trademark

Mars, Heinz Watties Take Dog Food Trademark to New Zealand Court

Mars Inc., the closely held maker of M&M candies and Pedigree dog food, is appealing a decision by New Zealand authorities not to register “Advanced Pet Nutrition” as a trademark, Auckland Now reported.

Heinz Watties Ltd., based in Hastings, New Zealand, is opposing the registration, saying the phrase infringes its unregistered trademarks “Champ Advanced Dog Nutrition” and “Advanced Dog Nutrition” in that country, according to Auckland Now.

New Zealand’s assistant commissioner of trademarks said in a Sept. 14 decision that McLean, Virginia-based Mars’s use of the phrase would confuse consumers, Auckland Now reported.

The dispute between the two companies is to be heard in New Zealand’s High Court, according to the newspaper.

For more trademark news, click here.

Copyright

Premier League CEO Says U.K. Television Sale May Be Scrapped

The Premier League may scrap plans to sell its record- breaking live soccer rights to the U.K. market and instead issue a pan-European license from 2013 following an antitrust ruling by the region’s top court.

Chief Executive Officer Richard Scudamore said his organization is considering an option to sell the rights in a bundle across the continent after the European Court of Justice last year stated that homeowners could purchase decoders showing foreign broadcasts.

“There’s not a decision been made yet as to whether we’re going to do a domestic deal or not,” Scudamore said. “One of the implications of the ECJ decision is that we are still working on whether we now actually sell the rights on a pan- European basis.”

The English league’s current three-year U.K. contracts with Sky Sports and ESPN are valued at 1.78 billion pounds ($2.8 billion) and finish at the end of the 2012-13 season. It gets another 1.4 billion pounds from overseas sales, making it the highest-grossing domestic soccer league in the world. Pubs remain barred from using a European card to show matches that feature copyrighted material owned by the league.

The tender documents for the next round of rights bidding will be released between April and June and the league will keep its options open, Scudamore said.

The Premier League’s financial success has come from payments from British Sky Broadcasting Group Plc (BSY), which has broadcast the competition in the U.K. since the league’s inception in 1992. Scudamore said that relationship counts for little when it comes to deciding who will get the rights.

Apple Hit With Copyright-Infringement Claims by Chinese Authors

Apple Inc. (AAPL) faces compensation claims from 23 Chinese authors who claim unlicensed versions of their books are being sold through the company’s App Store, Associated Press reported.

Some of the authors have already sued in Beijing No. 2 Intermediate Court, with 11 others waiting to file their complaints, AP reported.

Apple Spokeswoman Carolyn Wu told AP the company responds promptly and appropriately to complaints from content owners.

Wang Guohua, a Bejing lawyer representing some of the authors, told AP that the unauthorized content is coming to the App Store by way of developers, who re-loaded it after Cupertino, California-based Apple deleted some of the unlicensed books in January, following author requests.

‘Agent Vinod’ Film’s Song ‘Pyar Ki Pungi’ Accused of Plagiarism

A song from a Bollywood spy thriller film set to be released this week may be plagiarized from as many as three sources, critics say, and the Hindustan Times reported.

Pyaar ki Pungi,” the song featured in the upcoming “Agent Vinod” film, is “a rage” on the Internet and playing throughout India, Hindustan Times reported.

Among the number’s alleged sources are an Arabic song and a work by the Tehran-based pop band Barobax, according to the newspaper.

Dinesh Vijan, co-producer of the film, told Hindustan Times there is no copyright infringement and “any attempt to initiate proceedings for alleged infringement of copyright is ill- conceived, ill-advised and untenable by law.”

Summit Gets ‘11-20-09’ Artwork Removed From Zazzle Website

Summit Entertainment LLC (SUET), producer of the “‘Twilight’’ series of films, asked print-on-demand company Zazzle Inc. to remove an image created by a Wisconsin artist on the grounds that it infringed its copyrights.

The artist, Kelly Howlett of Green Bay, Wisconsin, said in a Facebook posting that she initially couldn’t figure out why her piece was removed. Her notice from Zazzle said that her product ‘‘has been removed from Zazzle’s Marketplace due to an infringement claim by Summit Entertainment. This may be due to the actual design of the product, description, search tags or character names that references the Twilight Saga which is owned by Summit Entertainment.”

Howlett said she hadn’t seen any of the “Twilight” films or read any of the Twilight books “but I’m pretty sure there’s no way this drawing invokes ‘Twilight.’”

The artwork is a pastel sketch of a woman with long flowing hair. Howlett said she “did a little digging” and discovered that the takedown request may have come because of the title of her work. She listed the drawing with the date on which she created it as its title.

She said she “figured out that 11-20-09 (the date I created my sketch) is also the release date from New Moon. That’s why I got flagged. They were claiming that using 11-20-09 as a search tag was infringing on their intellectual property.”

She included a link in her Facebook posting to a website listing a t-shirt design bearing that date and a text -- “My Wolf Awaits” -- that did seem to have a “Twilight” connection.

Although her work has since been put back on the Zazzle site, Howlett said her brush with an infringement allegation left her unsettled. “All these anti-piracy laws are scaring me because it’s just assumed that these companies are right, and if not, their army of lawyers can certainly outlast my bank account,” she said.

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: Michael Hytha at mhytha@bloomberg.net.

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