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Apotex, Fandango, High Times: Intellectual Property

Apotex Inc. defeated Sanofi (SAN), France’s biggest drugmaker, in an Australian patent dispute over the rheumatoid arthritis drugs Arava and Arabloc, with the country’s highest court ruling for the first time on the patentability of medical treatments for humans.

The High Court of Australia said in a majority decision yesterday that Apotex, a Canadian maker of generic drugs, didn’t infringe Sanofi’s patents. It overturned two lower-court rulings that sided with the French drugmaker and blocked Apotex’s sales of generic copies in Australia.

Sanofi’s patent, due to expire in March in Australia, on the compound leflunomide in the drugs is limited to treating or curing psoriasis, Justices Susan Crennan and Susan Kiefel wrote on behalf of the majority. Because Apotex proposed to use leflunomide in its generic copies of the drugs to treat active rheumatoid arthritis and active psoriatic arthritis, it didn’t infringe the patent, the justices said.

“It was not shown, nor could it be inferred, that Apotex had reason to believe that the unpatented pharmaceutical substance, which it proposes to supply, would be used by recipients in accordance with the patented method,” the justices said.

Apotex, based in Toronto, argued unsuccessfully that methods of medical treatment couldn’t be patented. Earlier laws and rulings had excluded such methods from patenting.

“This court has not had to decide the question until now,” Chief Justice Robert French wrote in his decision. “Whatever views may have held in the past, methods of medical treatment, particularly the use of pharmaceutical drugs, cannot today be conceived as ‘essentially non-economic.’”

Sanofi has competed with copycat versions of Arava in the U.S. since 2005, when Apotex and other generic drug makers won Food and Drug Administration approval to sell their copies of the medicine.

The case is Apotex Pty v Sanofi-Aventis Australia Pty. S219/2012 and S1/2013. High Court of Australia (Canberra).

For more patent news, click here.

Trademark

Comcast’s Fandango Seeks to Block World Wrestling Application

Fandango, Comcast Corp. (CMCSA)’s movie ticketing service, asked the U.S. Patent and Trademark Office for more time to file its opposition to an application by World Wrestling Entertainment Inc. (WWE) to use the “Fandango” name in its shows.

Johnny Curtis, the 6’4’’ (193 centimeter) 244-pound (110-kilogram) wrestler, performs for the WWE as “Fandango,” according to the Internet Movie Database and the wrestling company’s website.

According to the patent office database, Stamford, Connecticut-based WWE filed its application Aug. 23, specifying that the mark would be used for entertainment services, including wrestling exhibitions and performances by professional wrestlers and entertainers. The unit of Philadelphia-based Comcast said such use will infringe its trademarks.

The patent office said Oct. 27 that Fandango has until Feb. 26, 2014, to file its opposition.

Niagara Falls Smoke Shop Ordered to Pay Damages to High Times

Trans High Corp., publisher of the pro-marijuana magazine High Times, won a C$55,000 ($51,000) judgment in a trademark infringement suit against a Niagara Falls merchant, the Toronto Globe & Mail reported.

The Hightimes Smokeshop was found to have infringed the magazine’s trademarks, the newspaper reported.

The court said that the shop’s sign used a font similar to that on the magazine’s logo and that the store’s owners failed to respond to an offer by Trans High to settle the case, according to the Globe & Mail.

The award included C$25,000 in damages and C$30,000 in attorney fees, the newspaper reported.

Tamil Word for Grandmother Can’t Have Protection, Court Says

Aachi Masala Foods Ltd., a Chennai, India-based producer and distributor of spices, lost its dispute with Aachi Cargo Channels Pvt. Ltd. over the use of the Tamil word for “grandmother,” India’s Business Standard reported.

The Madras High Court dismissed the spice company’s trademark suit, saying that “aachi,” or grandmother, was too generic a term to be afforded trademark protection, according to the newspaper.

Aachi Cargo, a shipping company also based in Chennai, said it operated in areas that had nothing to do with the spice company’s businesses and there was no likelihood of confusion, according to the Business Standard.

Copperfield Seeks to Conjure Up ‘DC’ Trademark for Comic Books

Magician David Copperfield filed a trademark application seeking to register “DC” as a trademark for products including comic books.

Copperfield plans to use the mark with a wide range of goods and services, also including clothing, magic kits, music, video games and calendars, according to the application filed Aug. 14.

The application indicates that the two letters would be used surrounded by a broken outer circle, and a broken inner circle, with the letter D backwards.

Time Warner Inc. (TWX)’s DC Comics unit -- home of Superman, the Green Lantern and Wonder Woman -- didn’t respond immediately to an e-mail seeking comment on the application and whether the company planned to oppose it.

For more trademark news, click here.

Copyrights

Oracle Seeks to Revive Claim Google’s Android Used Copied Code

Oracle Corp. (ORCL) asked a U.S. appeals court today to let it pursue claims that Google Inc. owes it more than $1 billion for building its Android operating system, the most popular mobile-phone platform, using copied code.

Google “took the most important, the most appealing” parts of Oracle’s Java programming language to create Android, attorney Josh Rosenkranz, a partner at Orrick, Herrington & Sutcliffe LLP, told a three-judge panel of the U.S. Court of Appeals for the Federal Circuit in Washington.

The appeal centers on whether copyright protection is available for application programming interfaces, shortcut tools used in software to perform basic functions such as connecting to the Internet. Oracle is trying to overturn a judge’s finding that legal protection isn’t available for Java’s interfaces, which lets developers write programs that work across operating systems.

The case has split companies between those who write interface code and those who rely on it to develop their own software programs, with Microsoft Corp. joining arguments that upholding the district court’s finding “would destabilize the software industry.”

During 90 minutes of arguments, the judges indicated they may side with Oracle on that issue. U.S. Circuit Judge Kathleen O’Malley said that Java’s free availability to programmers didn’t negate its ability to obtain copyright protection, nor did the fact that it was widely used.

Should the appeals court say the packages are copyright protected, the next step would be to decide whether Google’s actions were permissible because it used only a portion of the code to create a new product.

Rosenkranz, Oracle’s attorney, said the panel can rule there was no fair use of the copyrights, while Google lawyer Bob Van Nest said the issue would need to be remanded to the trial court for further review.

Oracle sought as much as $6.1 billion in damages from Google before the estimate was thrown out by the judge before trial. It could still seek more than $1 billion.

Oracle, the world’s largest maker of database software, said Google used interfaces without permission -- or paying -- because it was behind schedule in developing Android and needed the operating system to extend its Internet advertising dominance to mobile devices. The result was to supplant Java and eliminate Oracle’s ability to capitalize on the boom in smartphones, Rosenkranz said.

The case is Oracle America Inc. v. Google Inc. (GOOG), 13-1021, U.S. Court of Appeals for the Federal Circuit (Washington). The lower-court case is Oracle America Inc. v. Google Inc., 10-cv-03561, U.S. District Court, Northern District of California (San Francisco).

Copyright Doesn’t Generate Much Income for Musicians, Study Says

Musicians received, on average, no more than 12 percent of their income from copyright-protected activities, according to a study by a Northwestern University law professor, Digital Music News reported.

Professor Peter DiCola analyzed data assembled from 5,000 musicians and found that the bulk of their income derives from live performances, session work, teaching or merchandising, Digital Music News said.

DiCola said his study shows that more aggressive copyright enforcement would only add a tiny amount to musicians’ bottom line, Digital Music News reported.

He did say that while stronger copyright enforcement might motivate musicians to “move up the ladder in a winner-take-all kind of market,” it wouldn’t provide them with any particular benefit today, according to Digital Music News.

For more copyright news, click here.

To contact the reporter on this story: Victoria Slind-Flor in San Francisco at vslindflor@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

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