CBOE, Otsuka, Novozymes, Lamborghini: Intellectual Property
CBOE Holdings Inc. (CBOE)’s Chicago Board Options Exchange must face patent-infringement claims brought by International Securities Exchange over an automated system for trading options contracts, a U.S. appeals court said.
The U.S. Court of Appeals for the Federal Circuit said yesterday a trial judge erred in interpreting key aspects of the ISE’s patent 6,618,707, and remanded the case for further proceedings. The lower court had ruled that CBOE’s Hybrid Trading System didn’t infringe the patent.
CBOE sued ISE in 2007 after it received a letter from ISE demanding that it pay patent royalties and was sued by ISE in New York. Chicago-based CBOE sought a court ruling that cleared its system of any infringement claims.
The Hybrid system blends a traditional calling of trades with electronic execution, according to the ruling. CBOE, the oldest U.S. options exchange, is the biggest operator of U.S. options markets by volume.
ISE is owned by Frankfurt-based Deutsche Boerse AG’s Eurex subsidiary. In March, the company said it may introduce a second platform for U.S. equity options.
The case is Chicago Board Options Exchange Inc. v. International Securities Exchange LLC, 2011-1267, U.S. Court of Appeals for the Federal Circuit (Washington). The lower court case is Chicago Board Options Exchange v. International Securities Exchange LLC, 07cv623, U.S. District Court for the Northern District of Illinois (Chicago).
Otsuka’s Abilify Patent Upheld in U.S. After Teva Appeal
Otsuka Holdings Co. (4578)’s pharmaceutical unit and partner Bristol-Myers Squibb Co. (BMY) won an appeals court ruling that will help ward off generic-drug competition to their schizophrenia drug Abilify until April 2015.
The U.S. Court of Appeals for the Federal Circuit rejected yesterday invalidity arguments by Teva Pharmaceutical Industries Ltd. (TEVA), the world’s biggest generic-drug company, and Apotex Corp. The decision upholding Otsuka’s patent 5,006,528 was posted on the court’s website.
Abilify, also known by its active ingredient aripiprazole, was first approved by U.S. regulators in 2002. New York-based Bristol-Myers reported its share of Abilify sales was $2.76 billion last year, or 13 percent of the company’s revenue.
The generic-drug makers conceded that their copycat versions would infringe the patent, so legal arguments centered on whether the patent was valid. Teva and Apotex contended that the drug was already covered by a patent that expired in 2005.
The Federal Circuit in Washington, which specializes in patent law, said researchers would have first looked to other compounds to find a new antipsychotic, and Teva and Apotex failed to prove that the compound aripiprazole would have been the obvious choice.
The appeals court called the argument by Petach Tikva, Israel-based Teva and Weston, Ontario-based Apotex “a poster child for impermissible hindsight reasoning.”
Laura Hortas, a spokeswoman for Bristol-Myers, said the two drugmakers were pleased with the decision, which “maintains the patent protection for Abilify in the United States until April 2015.” Denise Bradley, a spokeswoman for Teva, said the company had no comment.
The case is Otsuka Pharma Co. v. Sandoz Inc., 2011-1126 and 2011-1127, U.S. Court of Appeals for the Federal Circuit (Washington). The lower court case is Otsuka Pharmaceutical Co. v. Sandoz Inc., 07-cv-1000, U.S. District Court, District of New Jersey (Trenton).
Novozymes to Appeal Judge’s Ruling Invalidating Ethanol Patent
Novozymes A/S (NZYMB), the world’s largest maker of industrial enzymes, said it will appeal a federal judge’s ruling invalidating its patent 7,713,723.
In March, a federal jury in Madison, Wisconsin, awarded Novozymes $18.3 million in an infringement verdict against DuPont Co. (DD)’s Danisco unit. Danisco, the biggest maker of food additives and second-largest industrial enzyme producer, was found to have willfully infringed the patent at issue.
At that time, DuPont, which bought Danisco in June, said it planned to appeal that verdict.
In a May 4 order, U.S. District Judge Barbara B. Crabb said that from the very beginning of the case “I have questioned the validity of the patent” with respect to patent law’s requirement that the written description give adequate information about the patent.
The patent covers a process through which ethanol is produced from corn starch.
The judge said that by “clear and convincing evidence” the defendants proved that claims of the patent are inadequate and invalid as a matter of law. She directed the clerk to enter judgment in favor of the defendants.
In a statement yesterday, Novozymes General Counsel Mikkel Viltoft said his company disagrees with Crabb’s decision. The company will file an appeal with the U.S. Court of Appeal for the Federal Circuit, the Washington-based court that handles appeals of patent cases.
The case is Novozymes A/S v. Danisco A/S, 3:10-cv-00251- BBC, U.S. District Court, Western District of Wisconsin (Madison).
Brunei Agrees to Be Bound by Patent Cooperation Treaty
The agreement is set to go into effect on July 24.
Under the treaty, applicants have a unified procedure for filing patent applications.
According to a September 2011 list compiled by the Geneva- based WIPO, a United Nations agency, 144 other nations have also agreed to be bound by that treaty.
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EA Trademark Filing Hints at Ocean Destination for Sims Games
Electronic Arts Inc. (EA), publisher of the Madden NFL computer games, may be taking its Sims franchise to sea.
The Redwood City, California-based games company filed two applications to register “SimOcean” as a trademark, according to the database of the U.S. Patent and Trademark Office.
The two applications were filed April 25 and specify that the marks would be used for an online computer game and computer-game software.
Among Electronic Arts’ already-registered trademarks related to its Sims series of games are “The Sims Social,” “The Sims Medieval,” “The Sims Online,” “The Sims Carnival” and “MySims.”
Orthodox Union Sues New Zealand Coffee Company for Infringement
The Union of Orthodox Congregations of American, one of the organizations that provides Kosher certification for food in the U.S., sued a New Zealand coffee company for trademark infringement, the J-Wire Australian Jewish news service reported.
At issue is the logo used by Underground Coffee Co. of Christchurch, which the Union says too closely resembles the letter U inside a circle that it uses to identify Kosher food, according to J-Wire.
The coffee company has used the logo since 2003 and the union began objecting to its use in 2009, J-Wire reported.
Lamborghini Applies to Register ‘Huracan’ as U.S. Trademark
Automobili Lamborghini SpA applied to register “huracan” as a trademark, according to the database of the U.S. Patent and Trademark Office.
According to the application, filed in April, the Italian automaker plans to use the mark for passenger cars and parts and for model cars.
In March, Lamborghini Chief Executive Officer Stephan Winkelmann said the Sant’Agata Bolognese, Italy-based company might be introducing a new model to boost sales of the luxury cars. Several automotive websites have suggested that “huracan” might be the name of the new model.
The only holder of an issued U.S. trademark registration for “Huracan’ is Design Beverage Inc. of New York, which registered the name in August 2007 to use for a energy drink, according to the patent office database.
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Oracle Jury Gives Google Early Victory in Android Copyright Case
A federal judge said Oracle Corp. (ORCL) can’t seek $1 billion in damages from Google Inc. (GOOG) for infringing copyrights when it developed Android software running on more than 300 million mobile devices because a jury couldn’t agree on whether it was ‘‘fair use.”
A jury in San Francisco yesterday found that Google, the largest Web-search provider, infringed Oracle’s copyrights for programming tools and nine lines of code. U.S. District Judge William Alsup said at this point Oracle can only seek damages on the nine lines, which by law would be at most $150,000.
“There has been zero finding of liability on copyright, the issue of fair use is still in play,” Alsup said about the 12-member jury’s decision on the programming tools. He ordered the patent phase of the case to begin today; damages will be taken up by the jury in the last phase of the eight-week trial.
Anyone can use copyrighted work without consent of the owner if it advances the public interest by adding something new or functional. Google attorney Robert Van Nest asked Alsup to declare a mistrial, saying the issue of whether the company is liable for infringement is directly linked to the question of whether it was fair use. Alsup gave each side until May 10 to submit arguments on that issue and didn’t say when he’ll rule.
“Google won the battle and it remains to be seen who won the war,” said Brian Love, an intellectual property attorney and teaching fellow at Stanford Law School.
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Madonna Accused of Infringing Aussie Artist’s Symbol Copyright
An Australian artist claimed that pop star Madonna infringed the copyright for a symbol he uses to promote his work, Sydney’s Telegraph newspaper reported.
RJ Williams sent a letter to Madonna’s agent saying that the “M” symbol used on the singer’s new “Truth or Dare” fragrance line too strongly resembles the symbol he has used in his painting and on clothing, according to the Telegraph.
He told the Telegraph that he is asking the performer to halt her unauthorized use of his symbol and he seeks profits realized from the sale of the fragrance and a future license agreement.
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Trade Secrets/Industrial Espionage
Former Sanofi Chemist Gets 18 Months for Trade Secrets Theft
A former Sanofi (SAN) research chemist was sentenced to 18 months in prison for stealing company trade secrets and making them available for sale through the U.S. unit of a Chinese company.
Yuan Li, 30, was sentenced yesterday in federal court in Trenton, New Jersey, where she pleaded guilty Jan. 17 and admitted to stealing information about Sanofi compounds and selling them on the website of Abby Pharmatech Inc. Li, a Chinese national who lives in Somerset, New Jersey, was also ordered by U.S. District Judge Joel Pisano to pay $131,000 in restitution.
Li is a 50 percent partner in Abby, which sells pharmaceuticals. Abby is a U.S. unit of a Chinese company, Xiamon KAK Science & Technology Co., according to court papers.
Li worked from 2006 to 2011 in the U.S. headquarters of Paris-based Sanofi in Bridgewater, New Jersey, where she worked to develop compounds that could be used in future drugs and that hadn’t been disclosed to the public, including in patent applications, according to a statement by U.S. Attorney Paul Fishman.
In pleading guilty, Li admitted that from January 2010 to June 2011, she downloaded data on compounds, including their chemical structures, and used personal e-mail or a USB thumb drive to transfer it to her home computer, Fishman said.
Li’s attorney Paul Brickfield didn’t immediately return a call seeking comment on the sentence.
The case is U.S. v. Li, 12-cr-34, U.S. District Court, District of New Jersey (Trenton).
German Folding Stool Design Stolen From Egypt, Scholars Say
The discovery of more than 20 folding stools in Germanic archaeological sites has led scholars to speculate that the stools’ Egyptian designers were victims of early day industrial espionage, Spiegel Online reported.
The stools, which were commonly used in Egypt 4,000 years ago, turned up in grave sites in Germany and Denmark beginning in 1400 B.C., according to Spiegel.
The German versions were copied from those made in Egypt, Spiegel reported. Bettina Pfaff, a German archaeologist specializing in pre-history, told Spiegel that the design and dimension of the Germanic folding stools are too similar for them to have been a parallel development without any contact with the Egyptian originals.
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