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St. Jude, Watson, Hasbro, AT&T: Intellectual Property

The University of Pennsylvania sued St. Jude Children’s Research Hospital over a patent for creating genetically modified versions of immune cells to treat cancer.

The university asked for a court order declaring it hasn’t infringed the patent held by researchers at St. Jude, which it claims is invalid, according to a March 22 complaint in federal court in Philadelphia.

“The University and St. Jude have adverse legal interests with respect to the 645 patent, and a substantial controversy exists,” lawyers for the university wrote, referring St. Jude’s patent 8,399,645.

The lawsuit is the latest chapter in a dispute over the use of the therapy which reprograms T-cells to specifically target leukemia cells. The approach was used by Penn Professor Carl June to treat patients suffering from the blood cancer in an experiment reported in 2011 in the New England Journal of Medicine.

Novartis AG in August acquired the university’s technology as part of a $20 million agreement to fund a research center at the school. Novartis was one of three companies to negotiate with the university, June said at the time.

St. Jude, based in Memphis, Tennessee, sued in July accusing the university of claiming the technology as its own in scientific publications and seeking to commercialize it without consent.

Penn then sued St. Jude in July, accusing the hospital of interfering with its prospective contractual relations. In the new action, it is asking a judge to rule on the validity of the therapy’s underlying patent, which was issued to the hospital last week.

The invention is for an artificial molecule that attaches to normal T-cells and reprograms them to attack cancer cells before they are re-injected into the body. It targets cancers such as acute and chronic leukemia and non-Hodgkin’s lymphoma, according to the complaint.

Judith Black, a spokeswoman for St. Jude, didn’t immediately return a phone call and e-mail seeking comment on the complaint.

The case is Trustees of the University of Pennsylvania v. St. Jude Children’s Research Hospital, 2:13-cv-01502, U.S. District Court, Eastern District of Pennsylvania (Philadelphia).

Drugmaker ‘Pay for Delay’ Accords Questioned by High Court

U.S. Supreme Court justices suggested they will open drugmakers to suits over so-called pay-for-delay agreements, hinting at a ruling that would rewrite the rules governing the release of generic medicines.

Hearing arguments yesterday in Washington, the justices voiced skepticism about the accords, which the Federal Trade Commission says cost buyers as much as $3.5 billion a year. The antitrust agency says brand-name drug companies are paying generic rivals to forestall low-priced versions of popular treatments.

The FTC says 40 more pay-for-delay accords were struck in fiscal 2012 alone. Bayer AG (BAYN), Merck & Co. (MRK) and Bristol-Myers Squibb Co. (BMY) units already have faced lawsuits. Companies say the accords are legitimate patent settlements.

Several justices suggested they weren’t comfortable with the FTC’s proposed test to determine whether the accords are anticompetitive. The antitrust agency says courts should start with the presumption that a payment from a brand-name drug maker to a generic rival is illegal.

Justice Anthony Kennedy, often the court’s swing vote, suggested that brand-name drug makers at least shouldn’t be allowed to pay generic companies more than the generic companies could expect to get by winning patent litigation.

The disputed settlements are a product of the economics of the pharmaceutical industry, where companies can reap billions of dollars from blockbuster drugs -- and then see those sales plummet the moment a generic alternative appears. The FTC says generic drugs sell for an average of 15 percent of the original price, with the brand-name company losing 90 percent of its market share by unit sales. Generics have saved purchasers $1.1 trillion in the last decade, the industry says.

Pharmaceutical patent settlements typically arise when a generic-drug maker has either secured, or is poised to receive, Food and Drug Administration approval. At that stage, only the brand-name company’s patents stand in the way of generic competition.

The FTC and its allies say they have no quarrel with settlements that merely set the date for generic entry. They say that type of agreement simply reflects the companies’ assessments of the chances that a court would invalidate the brand-name company’s patent.

A payment is different, they say. If a brand-name drug maker with $100 million in annual sales can pay a generic rival $20 million to wait an extra year, both companies come out ahead -- at the expense of purchasers, the FTC argues.

The case, which the court will resolve by June, is Federal Trade Commission v. Watson Pharmaceuticals, 12-416.

For more patent news, click here.

Trademark

Double Coins Wins Trademark Dispute Against Indian Distributor

Double Coins Holdings Ltd., a Shanghai-based tire manufacturer, has prevailed in a trademark dispute with its Indian distributor, the Hindu newspaper reported.

The mark was invented and began to be used by the Chinese company in 1930, according to the Hindu.

The distributor, Trans Tyre (India) Private Ltd., registered the mark in India in October 2007 and claimed it was authorized to do so, the newspaper reported.

India’s Intellectual Property Appeal Board, which heard the dispute, said the registration had to be removed because Trans Tyre was merely a distributor rather than the owner of the mark, according to the newspaper.

Hasbro Unit’s Trademark Protest Ends ‘Kaiju’ Campaign

A page on Kickstarter Inc.’s website through which crowd- source funding was sought by a Eugene, Oregon-based games company has been taken down because of possible trademark problems.

The page, which sought consumer funding for Sunstone Games LLC’ s Kaiju Combat game, now says that the project is the subject of an intellectual property dispute and is now unavailable.

The objection came from Hasbro Inc. (HAS)’s Wizards of the Coast unit, which is best known for its Dungeons and Dragons and Magic: The Gathering games.

Renton, Washington-based Wizards that “Kaiju” infringed its “Kaijudo” mark used for game cards and cartoons. According to the database of the U.S. Patent and Trademark Office, Wizards registered that mark in December 2012, and has a pending application to register the mark for a television series for children.

Simon Strange, owner of Sunstone, said in a blog posting that “Kaiju” is “an ordinary word, used in its ordinary context. He said that the IP protections accorded Wizards’ “Kaijudo” mark “cannot extend to the word ‘Kaiju.’”

Voss of Norway, High Liquors Seek Time Extension for Response

High Liquors LLC, a Kentucky-based distiller, sought an extension of time to respond to a trademark complaint filed by a Norwegian bottled-water company.

Voss of Norway ASA filed suit against High Liquors in federal court in Ashland, Kentucky, in January. Voss objects to the shape of the bottles in which High Liquors is packaging and selling vodka, rum, whiskey and tequila.

According to the complaint, the High Liquors bottles have a too-strong resemblance to the cylindrical flat-topped bottles in which Voss is importing and selling its water.

Voss said in its pleadings that because its distinctive bottle shape has been knocked off by third parties before, the company has a “robust policing and enforcement program to protect its brand.”

It claims to be harmed by High Liquors’ actions, and says the public is likely to be confused by the similarity of the liquor company’s packaging to the designs used for Voss’s water bottles.

In addition to seeking an order banning the production and sale of High Liquors products in what it says is infringing packaging, Voss has also asked the court for an order for destruction of all allegedly infringing products and promotional materials, and for awards of money damages, attorney fees and litigation costs. The Norwegian company also asked to be awarded High Liquor’s profits attributable to the claimed infringement.

High Liquors, which filed a joint request with Voss that it be allowed to extend the Kentucky company’s time to answer the complaint until April 15, didn’t respond immediately to an e-mailed request for comment.

The case is Voss of Norway ASA v. High Liquors LLC, 0:13- cv-00004-HRW, U.S. District Court, Eastern District of Kentucky (Ashland).

For more trademark news, click here.

Copyright

AT&T, Verizon Didn’t Infringe Copyright, Appeals Court Affirms

AT&T Mobility LLC, Verizon Wireless Telecom Inc., and several other providers of mobile telephone service did not infringe the copyrights belonging to a producer of mobile multimedia content, a federal appeals court said, affirming a lower-court ruling.

Los Angeles-based Luvdarts LLC had filed the copyright infringement suit in federal court in Los Angeles in July 2010. The appeals court said that Luvdarts failed to state an adequate claim under copyright law that the providers of mobile service had liability for the circulation of its content by users of the services.

The court said that while Luvdarts attached a notice to its content that it could only be shared once, the company didn’t put in place any technical impediments to a recipient’s forwarding the content to “as many people as he wishes.”

The company also failed to allege that the mobile-service carries had a capacity to supervise the forwarding of its content, the court said. “Nowhere does Luvdarts explain what that system is, how it would function, or how much implementing such a system would cost,” according to the court opinion.

The appeal is Luvdarts LLC v. AT&T Mobility LLC, 11-55497, U.S. Court of Appeals for the Ninth Circuit. The lower court case is Luvdarts LLC v. Davis-Reuss, 2:10-cv-05442-DDP-RZ, U.S. District Court, Central District of California (Los Angeles).

For more copyright news, click here.

Trade Secrets/Industrial Espionage

Court Considering Scary Spice’s Trade-Secret Payment Argument

Melanie Brown, the singer also known as “Scary Spice” and “Mel B.”, is trying to keep protected as a trade secret the amount an Australian television network is paying her not to appear on a rival network’s programming, the Australian newspaper reported.

Lawyers for Brown and Australia’s Seven network, where she was a judge on that country’s version of “X Factor,” told an Australian court that the singer would be disadvantaged should the payment figures be revealed and that payments made to on-air talent are a matter of “sensitivity,” according to the newspaper.

Brown was set to be a judge on Australia’s Got Talent on the Channel Nine network, The Australian reported.

The judge hearing the court has said that while the amount specified in the contract is confidential, he’s not sure whether keeping it secret serves the public interest, according to the newspaper.

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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