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Samsung, Novartis, NuVasive: Intellectual Property

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Oct. 29 (Bloomberg) -- Samsung Electronics Co. agreed to settle a patent-infringement case before the U.S. International Trade Commission over its flash-memory chips used in Apple Inc.’s iPhone and Research In Motion Ltd.’s BlackBerry.

ITC Judge Theodore Essex said he will delay by 30 days a ruling that was scheduled for yesterday on whether Samsung violated patents owned by closely held BTG International Inc. The companies named in the case, including Samsung, Apple, RIM and Dell Inc., sought time to complete “a joint motion to terminate the investigation based on settlement agreement,” according to the order on the ITC’s website. The ITC must approve the settlement.

BTG had been seeking an order to ban U.S. imports of products containing Samsung Nand flash-memory chips, which store songs or pictures on portable electronics, because they may have infringed the company’s patents. BTG’s patents relate to ways of programming and reading flash-memory cells that store more than a single bit of information per cell, called “multi-level cell,” according to the original complaint.

The company targeted products that are made in China, Hong Kong and Taiwan and then sold in the U.S. Those electronics include Apple’s iPhone, iPod music player and MacBook Air notebook computer; RIM’s BlackBerry Storm mobile phone; Sony Corp.’s digital cameras, Vaio computers and MP3 players; and Suwon, South Korea-based Samsung’s mobile phones, camcorders, computers and MP3 players, according to the complaint.

Telephone and e-mail messages left for Samsung and BTG about the ITC’s announcement weren’t immediately returned.

BTG, which doesn’t make any products, also is seeking unspecified cash compensation in a civil lawsuit filed in federal court in Marshall, Texas. That case has been put on hold pending the outcome of the ITC investigation.

The ITC is tasked with protecting U.S. markets from unfair trade practices by using its power to ban imports of products that violate U.S. patents. Unlike a civil court, the Washington-based agency has no authority to impose royalties on violators.

Also targeted in the case are computers by Asustek Computer Inc. and Lenovo Group Ltd., and flash-memory cards by PNY Technologies Inc. and Transcend Information Inc.

BTG is based in West Conshohocken, Pennsylvania.

The case is In the Matter of Certain MLC Flash Memory Devices and Products Containing Same, 337-683, U.S. International Trade Commission (Washington).

Novartis Wins J&J Appeal in France Over Lens Patent

Novartis AG won an appeals court bid in Paris to uphold the French portion of its European patent for extended-wear lenses, defeating claims by Johnson & Johnson to overturn the intellectual-property protection.

The ruling by France’s Court of Appeal Oct. 27 confirms a March 2009 decision to reject an appeal by J&J and order the New Brunswick, New Jersey-based maker of Acuvue brand contact lenses to stop selling the product in France.

“The latest ruling confirms the validity of Novartis’s patent in France,” Pierre Veron, the lawyer representing the Basel, Switzerland-based drugmaker, said by telephone yesterday. J&J removed its product from the French market last year.

Courts have issued mixed rulings on the dispute since J&J, the world’s biggest health-products company, started selling Acuvue Oasys lenses in 2005. Judges in the U.S., France and the Netherlands have backed Novartis’s patent, while courts in the U.K., Germany and Austria have sided with J&J. Parallel cases are pending in Ireland, Italy and Spain.

Novartis, Switzerland’s largest drugmaker, sued J&J in France in 2007 over claims that the lenses infringed its patent by using similar chemicals.

J&J spokesman Gary Esterow said the company is disappointed with the Oct. 27 ruling in Paris and will appeal.

“We will continue to respect the injunction,” Esterow said yesterday in an e-mail.

In the U.K. dispute, the Court of Appeal in London upheld a lower-court ruling and invalidated Novartis’s patent over claims it was “insufficient.” J&J has appealed its loss in the U.S. A hearing hasn’t been scheduled, Esterow said.

For more patent news, click here.


Oracle Says SAP Won’t Contest Copyright Infringement Claims

Oracle Corp. said in court filings that SAP AG won’t contest Oracle’s claims that SAP contributed to copyright infringement by a now-defunct software-maintenance unit being sued for improperly downloading Oracle software.

SAP lawyers told Oracle in an e-mail Oct. 27 about its decision and its plan to ask the judge who presides over the case to shorten the trial, scheduled to begin Nov. 1, according to a filing yesterday in federal court in Oakland, California. Oracle, which is seeking billions of dollars in damages, says it needs to revise its trial plans and asked the judge to postpone the trial until Nov. 4.

“We are electing not to contest the claim for contributory copyright infringement,” Greg Lanier, SAP’s attorney, said in an e-mail contained in the court filing. Lanier didn’t return a voice-mail message.

SAP previously said that the software-maintenance unit, called TomorrowNow, was liable for its conduct and SAP, while it owned the company, didn’t cause or contribute to the infringement, according to an Aug. 27 court filing.

The case is Oracle Corp. v. SAP AG, 07-01658, U.S. District Court, Northern District of California (Oakland).

Spoonflower Says Economics Prevents Copyright Infringement

Although copyright-infringement lawsuits are common in the textile industry, a North Carolina company that custom prints fabric designs says it has so far managed to avoid any such litigation.

Spoonflower, based in Durham, prints on demand fabrics derived from images uploaded by consumers. Spoonflower spokesman Stephen Fraser said that unlike music piracy, it would make no economic sense for a consumer to rip off a commercial design and ask his company to reproduce it.

“Digitally printed fabric, which is what Spoonflower produces, is significantly more expensive than conventionally produced fabric,” he said in an e-mail yesterday. The price of commercial fabric is around $8 a yard, while Spoonflower’s digitally produced fabric costs about $18 a yard, he said.

“This is in stark contrast to the environment for piracy in purely digital goods like music and movies,” Fraser said. “The incentive for copying a movie or a song is not having to pay for it. Not so with fabric.”

The company’s terms of service bar the unauthorized uploading of intellectual property, Fraser said. “When we receive notice from any individual or organization that a piece of its copyrighted content appears on our site without permission, we remove it immediately,” he said.

Blue Magic Founder Claims DVD Infringes Copyright

Vernon Sawyer, a founding member of the 1970s soul band Blue Magic, sued an Illinois-based music producer for copyright infringement.

The lawsuit stems from what Sawyer says is the unauthorized taping and sale of a recording of a Blue Magic live performance in Washington. Darryl Payne of Aurora, Illinois, is accused of recording the concert and editing it into a “bootleg” DVD titled “Blue Magic Live in Concert,” according to the complaint filed Oct. 27 in federal court in Manhattan.

Vernon Sawyer said that while he and Payne entered into negotiations after the fact about the sale and distribution of the DVD, they never reached an accord. Instead, Sawyer said, Payne presented a contract to two other members of the group, persuaded them to sign it, and then proceeded with the sale and distribution based on that agreement.

The DVD has been sold by Inc. other outlets, and has received “extremely unfavorable” ratings because of the poor production quality, according to court papers. Not a single review of the DVD on the website is favorable, Sawyer said in his pleadings.

He claims his reputation and future performing opportunities are harmed by the sale and distribution of the allegedly infringing recording.

Sawyer asked the court to bar further sale and reproduction of the proprietary content, and for awards of money damages, attorney fees and litigation costs. He also asked for destruction of all marketing materials that incorporate his content without authorization.

He is represented by Jerome S. Fortinsky, Christopher M. Halfnight and Karina B. Lubell of New York’s Shearman & Sterling LLP and Gregory C. Wyckoff and Robert L. Raskopf of Los Angeles-based Quinn Emanuel Urquhart & Sullivan LLP.

The case is Vernon Sawyer v. Darryl Payne, 1:10-cv-08142-PKC, U.S. District Court, Southern District of New York (Manhattan).

For more copyright news, click here.


NuVasive Loses $60 Million Trademark Infringement Verdict

NuVasive Inc., a medical-device company based in San Diego, was ordered to pay a competitor $60 million in a trademark-infringement case.

A jury in federal court in Los Angeles awarded the damages to Neurovision Medical Products Inc. on Oct. 25.

Neurovision, based in Ventura, California, filed the lawsuit in September 2009, claiming NuVasive began infringing its trademark after discussions about a long-term contract between the two companies ended without an agreement.

The jury found that NuVasive deliberately infringed the mark and concealed that it knew of Neurovision’s prior use of the mark when it filed trademark applications at the patent office.

NuVasive said in a statement that it will appeal the verdict, which had ‘no bearing on our proprietary technology or product platform” and wouldn’t affect sales.

The case is Neurovision Medical Products Inc. v. NuVasive Inc., 2:09-cv-06988-R-JEM, U.S. District Court, Central District of California (Los Angeles).

INGfertility Registers ‘Seriously Fun Baby-Making’ Trademark

INGfertility LLC, a maker of products aimed at improving human reproductive outcomes, registered “Seriously fun baby-making” as a trademark.

The Spokane, Washington-based company will use the mark for a sexual lubricant that doesn’t interfere with conception, according to a statement released yesterday. The product, known as Pre-Seed, is a water-soluble lubricant sold through CVS Caremark Corp.’s stores, as well as independent pharmacies and clinics.

INGfertility applied for the mark in February with the assistance of Gayle L. Strong of Miami’s Greenberg Traurig LLP, according to the trademark database of the U.S. Patent and Trademark Office.

According to the INGfertility website, the company is named for Ing, a Norse deity associated with fecundity.

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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