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Smith & Nephew, ‘Fierce Five,’: Intellectual Property

Smith & Nephew Plc (SN/) lost an appeals court ruling in which it was accused of infringing two Wake Forest University patents over wound-care treatments.

The U.S. Court of Appeals for the Federal Circuit in Washington said yesterday that a trial judge erred in ruling the two patents invalid, and remanded the case to the lower court. The university, which licensed its inventions to Kinetic Concepts Inc., can seek to reinstate a jury verdict it won against Smith & Nephew.

Wake Forest developed the technology that uses a type of suction, or negative pressure, to close large wounds instead of relying on staples or sutures. The Winston-Salem, North Carolina-based school presented testimony that devices with its inventions have been used on more than 3 million patients, and changed the way surgeons treat serious wounds, according to the ruling.

Mike Barger, a spokesman for closely held Kinetic Concepts, said the company is no longer a party to the case.

A federal jury in March 2010 sided with Wake Forest and Kinetic Concepts that Smith & Nephew’s Renasys-F dressing kit infringed the patents. The jury rejected Smith & Nephew’s claims that the patents covered obvious variations of earlier research.

The Federal Circuit said U.S. District Judge Royal Furgeson should have given more deference to the jury’s findings before he ruled the patents invalid.

Smith & Nephew, which gets almost a quarter of its revenue from advanced wound management, can raise other invalidity arguments when the case is sent back to a federal court in San Antonio, where Kinetic Concepts is based, the appeals court said in the ruling posted on its website.

Smith & Nephew said it is considering its next step, including a possible petition to have the case heard before the all active judges of the Federal Circuit, which specializes in patent law.

The company’s wound-treatment products “remain on the market and continue to be readily available to our customers,” Smith & Nephew said in an e-mail statement. “We are determined to defend the right of customers to access a full range of negative-pressure wound-therapy products from Smith & Nephew.”

The case is Kinetic Concepts Inc. v. Smith & Nephew Inc., 2011-1105, U.S. Court of Appeals for the Federal Circuit (Washington.) The lower court case is Kinetic Concepts Inc. v. Bluesky Medical Corp., 08-00102, U.S. District Court for the Western District of Texas (San Antonio).

For more patent news, click here.

Trademark

‘Fierce Five’ Gymnasts Face Hurdle in Landing Nickname Trademark

USA Gymnastics is preparing a trademark filing for the term “Fierce Five,” which was attached to the gold medal-winning women’s gymnastics team at the London Olympics, spokeswoman Luan Peszek said in an e-mail.

NBC announcers during the games repeatedly referred to the team as the “Fab Five,” which previously was used to describe the University of Michigan’s basketball draft class of 1991 that included Jalen Rose, Chris Webber and Juwan Howard. Rose was granted a trademark for the term last year.

Peszek has said the team, including Gabby Douglas, the first black gymnast to win the all-around, preferred Fierce Five to Fab Five.

A California man, Paolo Mazza, filed for a “Fierce Five” trademark on Aug. 8, according to the U.S. Patent and Trademark Office website. No attorney was listed on the filing, which provided only a post-office box in Millbrae, California, as an address. There is no telephone listing available.

A Paolo Mazza with the same post-office box in February applied to trademark the term “lin-sational.” A number of puns, including “lin-sanity,” were spawned by the success of National Basketball Association player Jeremy Lin, who has moved to trademark anything associated with his name.

Darren Heitner, a sports and entertainment lawyer with Wolfe Law Miami in Florida, said Mazza’s application has little chance of being approved.

“Many pronouncements were made that the girls have no interest in Fab Five and instead plan to use the Fierce Five designation for commercial purposes,” Heitner said in a telephone interview. “The USPTO will look at this person’s history, note that he also filed a similar application with Jeremy Lin, and quickly recognize that this person is nothing more than a squatter.”

The “Fierce Five” term was trademarked by DreamWorks Animation and abandoned in 2009.

Douglas and her Olympic teammates will make a base salary of more than $100,000 each for participating in the 40-city Kellogg’s Tour of Gymnastics Champions that begins Sept. 8 in San Jose, California, and ends Nov. 18 in Brooklyn, New York.

Douglas already has an endorsement agreement with Kellogg Co. (K), which put the gymnast on the cover of its cornflakes box. The Battle Creek Enquirer reported that the entire women’s gymnastics team will also appear together on a cornflakes box cover to come out in September.

Chattanooga Won’t Go After ‘Chattanoogaville’ for Use of Name

The city of Chattanooga, Tennessee, won’t challenge the use of its name for a reality television program promoting conservative political views, the Chattanooga Times Free Press reported.

The “Chattanoogaville” program features members of the Tea Party, who travel around the country to confront politicians from both major political parties on conservative values, according to the newspaper.

A spokesman for Chattanooga Mayor Ron Littlefield told the newspaper that potential trademark conflicts with the show’s producers aren’t “worth putting much time in.”

Producer Melanie Tipton, herself a Chattanooga native, wrote on the newspaper’s Facebook page that the show was “not going to take video shots of Chattanooga and make the town look like hillbillies” because she is proud of the city and “will never make this wonderful place look bad.”

FDNY Tells Remembrance Rescue Project to Quit Using Logo

An Illinois group that bought at auction two fire trucks formerly used by the Fire Department of New York has received a cease-and-desist letter from the city, Firehouse.com reported.

The Remembrance Rescue Project of Schaumburg, Illinois, which was formed to honor the memory of the New York firefighters killed on 9/11, and to use the old trucks for educational purposes, told Firehouse.com that its in-house design firm is working on a way to design new logos that the Fire Department of New York won’t find objectionable.

The Illinois group has also placed a notice on its website disavowing any connection with the Fire Department of New York, and has covered up the FDNY logos on the rigs, Firehouse.com reported.

The New York fire department told Firehouse.com that it wasn’t questioning the legitimacy of the Remembrance Rescue Project, and that its cease-and-desist letter was sent in response to queries it had received from the public about whether the groups were affiliated.

Brown-Forman Sends ‘World’s Most Polite Cease-and-Desist Letter’

Patrick Wensink, author of the novel “Broken Piano for President,” has received what has been widely characterized as “the world’s most polite cease-and-desist letter” from Brown- Forman Corp.’s Jack Daniel’s unit.

Wensink posted the letter, signed by Brown-Forman trademark attorney Christy Susman, on his website.

In the letter, Susman said that the while the company was “flattered” by Wensink’s affection for the Jack Daniel’s brand, the cover of his book too closely mimics the style of the beverage’s label design.

If the company permitted such uses “we run the very real risk our trademark will be weakened. As a fan of the brand, I’m sure that is not something you intended or would want to see happen,” Susman wrote.

She then made an offer because “you are both a Louisville ‘neighbor’ and fan of the brand” that the company would contribute “a reasonable amount” toward the cost of changing the cover design when the book is reprinted.

Susman said that if Wensink agreed to this “you will help us to ensure that the Jack Daniel’s brand will mean as much to future generations as it does today.”

In closing she said the company wished Wensink “continued success with your writing.” The letter has received wide news coverage in the U.S. and U.K.

Wensink said of the letter that “if it wasn’t signed by some lawyer, I’d imagine ol’ Gentleman Jack penning it himself, twirling his bushy mustache.” He won’t take Louisville, Kentucky-based Brown-Foreman up on the offer, however.

He said he and his publisher -- Lazy Fascist Press -- are “proudly independent and don’t need any of that sweet corporate booze money to redo the cover.”

For more trademark news, click here.

Copyright

Elton John Says His ‘Nikita’ Song Doesn’t Infringe Copyright

Elton John has responded to a copyright infringement case that claimed he stole the lyrics to his pop sing “Nikita” from a South African resident.

Guy Hobbs sued John in federal court in Chicago in April, claiming his 1992 song “Natasha” was hijacked by John and used as the basis for Nikita. Hobbs claimed he registered the copyright and circulated it to a number of performers and music publishers, including John’s publisher Big Pig Music Ltd.

John responded in an Aug. 7 court filing, asking that the case be dismissed because Hobbs “has no cognizable claim for copyright infringement.”

In a second filing John said that “the suggestion that the Grammy-award-winning composer/lyricist team of Elton John and Bernie Taupin -- who have collaborated on over 30 albums, sold over 250 million records and have more than 50 “Top 40” hits -- would need to copy these commonplace elements from plaintiffs lyrics is not only baseless and absurd, but also misses the essential legal point -- i.e. that none of the similarities perceived by Hobbs constitutes a basis for a claim of copyright infringement.”

Taupin is a co-defendant with John.

The case is Guy Hobbs v. Elton John, 1:12-cv-03117, U.S. District Court, Northern District of Illinois (Chicago).

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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