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Medtronic, Whitserve, Oracle: Intellectual Property

Sept. 10 (Bloomberg) -- Medtronic Inc., the world’s largest medical-device maker, got a mixed ruling in its appeal of a $7.4 million verdict won by Synthes Inc. over a patent for spinal discs.

The U.S. Court of Appeals for the Federal Circuit in Washington yesterday upheld findings that two Medtronic products infringed a Synthes patent, while saying there was no violation related to a third device. Part of the damage award against Medtronic was vacated and the case was sent back to a lower court for recalculation of what Synthes is owed.

Synthes, the world’s biggest maker of bone-related devices, claimed Medtronic infringed a patent related to an implant used to replace degenerative or diseased spinal discs. Its 2007 lawsuit targeted Medtronic’s Maverick, A-Maverick and O-Maverick implants.

In dispute was patent 6,936,071, issued in August 2005.

A jury in 2008 awarded $5.7 million as compensation for profit lost by a Synthes unit, and said Medtronic also should pay an 18 percent royalty on $9.1 million in sales of its three implants.

In yesterday’s ruling, the Federal Circuit said Synthes wasn’t entitled to lost profits because the unit that makes a product that competes directly with Maverick discs wasn’t a party to the case. The appeals court also said O-Maverick doesn’t infringe the patent.

The court in addition upheld the validity of the patent and said an order Synthes had won to ban sales of products that infringe the patent can’t be applied to overseas sales.

Officials with West Chester, Pennsylvania-based Synthes and Minneapolis-based Medtronic didn’t immediately return messages seeking comment.

Jeffrey M. Olson of Chicago’s Sidley Austin LLP argued the case for Synthes. Medtronic’s case was argued by Seth P. Waxman of Washington’s Wilmer Cutler Pickering Hale & Dorr LLP.

The case is Spine Solutions Inc. v. Medtronic Sofamor Danek USA Inc., 2009-1538, U.S. Court of Appeals for the Federal Circuit (Washington). The lower case is Spine Solutions Inc. v. Medtronic Sofamor Danek Inc., 07cv2175, U.S. District Court, Western District of Tennessee (Memphis).

Medicines Co. Angiomax Ruling Won’t Be Appealed by Government

Medicines Co.’s court victory to extend its patent term for anticoagulant Angiomax won’t be appealed by the U.S. government, the nation’s solicitor general said.

Medicines Co. won a court ruling in August that may force the U.S. Patent and Trademark Office to add four more years of patent protection on Angiomax, which accounted for all of the company’s $404 million in revenue last year.

The solicitor general, the government’s top courtroom lawyer, “has, at this time, elected against appeal in this action,” according to a court filing yesterday.

Teva Pharmaceutical Industries Ltd. and Fresenius SE’s APP Pharmaceuticals are seeking to sell copies of Angiomax and have filed notices of appeal to the August court decision. The judge in that case ruled that the patent office erred in rejecting a request to extend the patent term to compensate for the time it took the drugmaker to get regulatory approval for the medicine.

The case is The Medicines Co. v. Kappos, 10cv286, U.S. District Court, Eastern District of Virginia (Alexandria).

Patent Lawyer’s Infringement Suit Includes Law Firm Defendants

A Connecticut patent owner who sued General Electric Co., EMC Corp. and Intel Corp. for patent infringement also named six law firms as defendants.

Whitserve LLC’s patents 5,895,468 and 6,182,078, issued in April 1999 and January 2001 respectively, cover a system for delivering professional services over the Internet. According to the complaint filed in federal court in Greenbelt, Maryland, the patents were licensed nonexclusively to three entities for patent and trademark maintenance.

In an earlier case against Computer Packages Inc. of Rockville, Maryland, a jury awarded Whitserve $8.4 million for infringement of the two patents.

The new case is against users of two products made by Computer Packages. Whitserve said it “has not been made whole” by the earlier suit, and the defendants in the new case “remain liable for the damages associated with their infringing use” of the products.

The named inventor on the patent, Wesley W. Whitmyer Jr., is a partner in Stamford, Connecticut-based St. Onge Steward Johnston & Reens LLC. According to his biography, posted on the firm’s website, he is a patent and trademark litigator. Whitserve is a “technology company specializing in tools for implementing knowledge worker functions in web businesses,” according to the biography.

The firms Whitserve sued in the new case are Chicago’s Brinks Hofer Gilson & Lione; Cincinnati’s Dinsmore & Shohl LLP; Benesch Friedlander Coplan & Aronoff LLP of Columbus, Ohio; Kusner & Jaffee of Highland Heights, Ohio; Mueting, Raasch & Gebhardt PA of Minneapolis; and Washington’s Wilmer Cutler Pickering Hale & Dorr LLP.

In the complaint against the three companies and the law firms, Whitserve asked for a court order barring further infringement of its patents, and for awards of money damages, litigation costs and attorney fees. The complaint was filed June 10. None of the parties has yet answered it, according to the case file.

Whitserve is represented by Gene S. Winter and Stephen Ball from the St. Onge firm, and Barton D. Moorstein of Rockville’s Blank & Moorstein LLP.

The case is Whitserve LLC v. Benesch Friedlander Coplan & Aronoff LLP, 8:10-cv-01630-RWT, U.S. District Court, District of Maryland (Greenbelt). The earlier case is WhitServe LLC v. Computer Packages Inc., 3:06-cv-01935-AVC, U.S. District Court, District of Connecticut (New Haven).

NetApp, Oracle Agree to End File-System Patent Dispute

NetApp Inc. and Oracle Corp. agreed to dismiss a patent dispute begun in 2007 over network file systems. Terms weren’t disclosed in NetApp’s statement yesterday.

NetApp sued Sun Microsystems Inc., now owned by Oracle, claiming Sun’s Zettabyte File System technology infringed its patents. Sun in turn claimed Sunnyvale, California-based NetApp used Sun inventions in its information-technology products. Redwood City, California-based Oracle, the world’s second-biggest software company, bought Sun in January.

“For more than a decade, Oracle and NetApp have shared a common vision focused on providing solutions that reduce IT cost and complexity for thousands of customers worldwide,” NetApp Chief Executive Officer Tom Georgens said in yesterday’s statement. “We will continue to collaborate with Oracle to deliver solutions that help our mutual customers gain greater flexibility and efficiency in their IT infrastructures.”

The cases are Sun Microsystems Inc. v. Network Appliance Inc., 08cv1641; Network Appliance Inc. v. Sun Microsystems Inc., 07cv6053; and Sun Microsystems Inc. v. Network Appliance Inc., 07cv5488, all U.S. District Court for the Northern District of California (San Francisco).

For more patent news, click here.


Bollywood Fights Piracy With Denial-of-Service, DNA India Says

Makers of India’s Bollywood films are protecting their new releases by hiring companies that hit illegal file-sharing sites with denial-of-service attacks, the DNA India news website reported.

When the “Peepli Live” film was released in mid-August, pirated copies were found available for downloading the same day, principally from three services, according to DNA India.

An official with Bangalore, India-based Aiplex Software Pvt. Ltd. told DNA India his firm floods websites offering unauthorized copies with requests beyond server capacity, “causing denial of service.”

Aiplex has been used to “secure” releases of more than 30 films, limiting pirates’ access to illegal copies, according to DNA India.

For more copyright news, click here.


Ceausescu Son Claims Theater Infringed Family-Name Trademark

The son of former Romanian President Nicolae Ceausescu argued that “The Last Hours of Ceausescu” play infringed a trademark for the family name during a trial that began in Bucharest yesterday, Agence France-Presse reported.

A lawyer for the younger Ceausescu told AFP the damages sought are less than 1 euro ($1.27) because what’s important is the protection of the trademark.

A lawyer for the Romanian theater where the play was shown said he would contest the trademark’s registration as an “abuse” and “dangerous precedent,” according to AFP.

The play about Nicolai Ceausescu and his wife Elena -- who were executed in 1989 at the end of Romania’s Communist regime - - has also been performed in Berlin and Zurich, AFP reported.

Dick Barbour Claims Miniature Car Models Infringe Trademark

Dick Barbour, the auto racer who once had the late Paul Newman as a driver on his team, sued a maker of miniature car models for trademark infringement.

Exoto Inc. of Woodland Hills, California, is accused of selling a die-cast replica race car model stamped with the “Dick Barbour Racing” trademark and Barbour’s name. The exact-copy model cars, offered through the website, sell for $200 to $400, according to the complaint filed Sept. 7 in federal court in Atlanta.

The trademark and the racer’s name are used without authorization, Barbour claims in his complaint. Barbour registered his trademark in 2003 and said that although the registration lapsed this year, he has another application pending and “has never stopped using the mark in commerce.”

Barbour claims that the use of his name on the model cars “is likely to cause confusion” for consumers. The cars falsely appear to have Barbour’s “sponsorship, approval, affiliation and connection,” he claims.

He asked the court for awards of money damages, attorney fees and litigation costs. Barbour also seeks an award of Exoto’s profits attributable to the alleged infringement, and asked that damages be tripled to punish Exoto for its actions.

Barbour and his Barbour Racing International LLC are represented by Jason W. Graham and Mary E. Meyer of Graham & Penman LLP of Atlanta.

The case is Barbour Racing International LLC v. Exoto Inc., 1:10-cv-02852-CAP, U.S. District Court, Northern District of Georgia (Atlanta).

‘The Situation’ Seeks to Register Catch Phrases as Trademarks

Mike “The Situation” Sorrentino, a character who appears on the “Jersey Shore” reality television program, filed new trademark applications, according to the database of the U.S. Patent and Trademark Office. The marks relate to phrases he commonly uses on the program, which runs on Viacom Inc.’s MTV network.

On July 6, Sorrentino’s company, MPS Entertainment, filed applications to register “Grenade Free America” and “Fresh to Death.” He has an earlier application, filed in February, to register “GTL.” According to the Washington Post, the acronym stands for “gym, tan and laundry.”

Sorrentino is seeking the trademarks to be used on clothing. He tried to register “The Situation” and was refused in May because of a possible conflict with an existing mark, according to patent office files. His February application to register “Situation Nation” is proceeding with no opposition to date.

For more trademark news, click here.

To contact the reporter on this story: Victoria Slind-Flor in Oakland, California, at

To contact the editor responsible for this story: David E. Rovella at

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