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Bayer, Nespresso, Al Jazeera: Intellectual Property

Feb. 1 (Bloomberg) -- Bayer AG, Europe’s largest drug and chemical maker, lost its effort to collect patent royalties from Johnson & Johnson’s sales of rheumatoid arthritis drug Simponi.

Bayer, which sued J&J in 2009, conceded that Simponi isn’t infringing its patent under an interpretation of “human monoclonal antibodies” issued by a federal judge last month, according to a Jan. 25 court filing. Bayer’s lawsuit, terminated Jan. 28, could be revived if it wins its appeal of the ruling.

Bayer earlier this month made the same concession in a suit against Abbott Laboratories, maker of the arthritis drug Humira. The decision was “a procedural step in order to allow a quick appeal” of the earlier determination on the definition of the phrase, Oliver Renner, a spokesman for Leverkusen, Germany-based Bayer, said after the Jan. 11 Abbott ruling.

“We agree with the judge’s ruling related to the claim construction and remain confident that it will be sustained on appeal,” Brian Kenney, a spokesman for New Brunswick, New Jersey-based J&J’s Centocor Ortho Biotech unit, said yesterday.

Bayer claimed the arthritis drugs violate a patent for antibodies against tumor necrosis factor, or TNF, an immune-cell protein linked to inflammation.

U.S. District Judge Dennis Saylor in Worcester, Massachusetts, ruled that Bayer’s patent covered only antibodies that have low affinity, referring to the strength of the antibody’s attachment to TNF, and that don’t neutralize the protein. Both sides agreed that Simponi doesn’t fit that description, according to the Jan. 25 filing.

Centocor, which began selling Simponi in 2009, doesn’t break out sales of the treatment.

The case is Bayer Healthcare LLC v. Centocor Ortho Biotech Inc., 09cv11362, and the Abbott case is Abbott Laboratories v. Bayer Healthcare LLC, 09cv40002, U.S. District Court for the District of Massachusetts (Worcester).

Nespresso to Survive Capsule Patents’ Expiration, Inventor Says

Nestle SA will maintain its leadership as the biggest maker of coffee capsules because of the strength of the Nespresso brand even as patents on the product expire, the technology’s inventor said.

“A plethora of rival capsules will come out,” said Eric Favre, who created the first version of Nespresso in 1976 and has since left Nestle to set up a competitor. “The Nespresso brand is more important than the patents,” Favre said in an interview at the Saint-Barthelemy, Switzerland, headquarters of Monodor, his coffee-supply company.

Sara Lee Corp. and Ethical Coffee Co. became the first Nestle competitors last year to make pre-filled capsules that are compatible with Nespresso coffee-making machines. Vevey, Switzerland-based Nestle has challenged the rival products through courts and intellectual-property regulators.

Nespresso sales probably almost tripled to 3 billion Swiss francs ($3.2 billion) in 2010 from 1.2 billion francs in 2006, according to Jon Cox, an analyst at Kepler Capital Markets in Zurich.

As many as 20 rivals may eventually offer coffee that can be made with Nespresso machines, Favre said. The inventor, 63, stopped working at Nestle in 1990 and later founded Monodor, which developed a capsule that’s not compatible with Nespresso. Monodor’s system is produced by Italian coffee company Luigi Lavazza SpA outside Switzerland.

Nestle, the world’s largest food company, said in June that it had sued Downers Grove, Illinois-based Sara Lee in France for alleged patent infringement. Nestle has also sued Ethical Coffee in a Paris court, Hans-Joachim Richter, a spokesman for Nespresso, said by phone on Jan. 28.

A patent on the Nespresso system is due to expire at the end of 2012, according to Jean-Paul Gaillard, who ran Nespresso from 1988 to 1997. Gaillard has since established Ethical Coffee. Another patent on the capsules expires in 2024, he said in a phone interview Jan. 28. Ethical Coffee doesn’t infringe on any Nespresso patents, and Gaillard is “serene” about Nestle’s court case, he said.

Nespresso coffee is sold only through Nestle-controlled shops and concessions. The product costs as much as 10 times the price of un-ground espresso beans, based on weight, at Swiss supermarkets. Nespresso’s earnings before interest, taxes and amortization probably total about 25 percent of sales, Jeff Stent, an analyst at Exane BNP Paribas, estimated in a May 25 report. Nestle doesn’t break out earnings by brand.

Lead Inventor on Patent in Interval Research Case Speaks Out

The lead inventor on one of the patents that a company controlled by Microsoft Corp. co-founder Paul Allen is asserting against major technology companies questioned the lawsuit on his blog.

Michael Naimark joined Allen’s Interval Research Corp. in 1992. He’s now a research associate professor at the University of Southern California’s Interactive Media Division of the School of Cinematic Arts.

He’s the first named inventor on patent 6,757,682, which he said in his blog post came from an Interval project and was about “exploring how to find live events as they happen.”

That patent is one of four that Interval Licensing has accused Apple Inc., eBay Inc., Google Inc., Netflix Inc. and other technology companies of infringing. That suit was filed in federal court in Seattle in August 2010.

On his blog, Naimark said that while he has “a contractual obligation, as a former Interval employee,” to defend intellectual property to which I contributed,” he is concerned about the patent litigation.

“It’s a perplexing thought that the money at risk in this lawsuit will likely exceed the annual budget of the National Endowment for the Arts, possible several times over,” he wrote.

The case is Interval Licensing v. AOL Inc., 2:10-cv-01385-MJP, U.S. District Court, Western District of Washington (Seattle).

For more patent news, click here.


Railhawks Football Club Trademark, Domain Name Sold on EBay

The Carolina Railhawks Football Club, a professional soccer team, sold the team’s trademark, according to eBay Inc.’s online auction website.

Bidding started at $500 with two bidders identified only as “j***c” and “r***a” see-sawing until the auction closed Jan. 30 with a selling price of $14,999. In addition to the team name, the high bidder won all associated logos, symbols, designs, slogans, and mascot, and the internet domain name, according to the eBay listing.

The team, based in Cary, North Carolina, was founded in 2006. One of the team’s owners was Robert Young, the former chief executive officer of Red Hat Inc. and the founder of Lulu Ltd., the self-publishing website.

Young was a member of the entity that had owned the team, and which dissolved Dec. 30, according to the Cary News.

UKTV’s Dave Digital Channel May Be Forced to Change Its Name

UKTV’s attempt to use “Dave” as the name of its digital television channel is opposed by a London-based marketing group that has a unit of the same name, the newspaper Financial Times reported.

The European Union’s Office for the Harmonization of the Market, which handles trademark issues, said last week that the marketing firm’s unit called Dave had the right to use the mark for broadcasting, advertising, and interactive entertainment, according to the Financial Times.

Dave, a branding agency founded in 2003, objected when UKTV started its Dave channel in 2007, Financial Times reported.

UKTV chose “Dave” for its comedy and entertainment channel aimed at young men because “everybody knows a bloke called Dave,” according to the Financial Times.

Cosmonaut’s Daughter Seeks to Register ‘Gargarin’ Trademark

The daughter of Yuri Gargarin, the former Soviet Union’s first cosmonaut, applied to register her late father’s name as a trademark, the Russian International News Agency reported.

Gargarin’s daughter Yulia, who was born one month before her father’s flight in April 1961, filed the application with the Russian Federal Service for Intellectual Property in anticipation of the 50th anniversary celebration of that flight, according to the news agency.

Anatoly Perminov, the head of Roscomos, Russia’s federal space agency, told the news agency he didn’t consider her action shameful as “everyone is making money on Gargarin’s name.”

The Gargarin trademark is worth about 1 billion rubles ($33.5 million), according to the news agency.

Hermes Sues Seller of Canvas Bags Bearing Photos of Birkin Bag

Hermes International, the Paris-based producer of luxury accessories and clothing, sued a California retailer for trademark infringement.

The suit, filed July 28 in federal court in Manhattan, accuses Thursday Friday Inc. of selling knockoffs of Hermes’ $6,000 Birkin handbag.

The French luxury-goods maker said Thursday Friday Inc. of Los Angeles is selling what it calls its “Together Bag” through the website. The canvas bag, which sells for $35, contains on each of its five exterior surfaces, a photograph of the corresponding side of a genuine Birkin bag, according to the complaint.

The original Birkin bag takes between 16 and 19 hours to make and there is presently an 18-month waiting list for customers to buy one from the Hermes stores in the U.S., according to the complaint.

The unavailability of a Birkin bag was a plot element in one episode of the “Sex and the City” television series, Hermes said in its pleadings. Hermes said in the complaint that from 2002 to 2008, it sold more than 30,000 Birkin bags in the U.S., generating more than $200 million in revenue.

Hermes claims it’s harmed by Thursday Friday’s action and that consumers are likely to believe that the “Together Bag” is sold by, licensed, sponsored or endorsed by the French luxury-goods maker.

It asked the court to bar Thursday Friday’s promotion and sale of the allegedly infringing bag, and for an order for the destruction of all inventory and promotional materials relative to the product.

It also seeks money damages, attorney fees and litigation costs.

Thursday Friday didn’t respond immediately to an emailed request for comment.

Hermes is represented by Andrew Baum of Milwaukee’s Foley & Lardner LLP.

The case is Hermes International v. Thursday Friday Inc., 1:11-cv-00580-AKH, U.S. District Court, Southern District of New York (Manhattan).

For more trademark news, click here.


Al Jazeera Puts Egypt Unrest Coverage Into Creative Commons

Al Jazeera, the independent Arabic cable news network, has released much of its coverage of the unrest in Egypt through a Creative Commons license.

The news network is offering for free raw footage of the rioting and police response in Egypt and also of the return to normalcy in Tunisia as long as the network is credited.

Creative Commons, a non-profit organization based in San Francisco, was established in 2001 to make content available within a legal framework.

Although Al Jazeera’s satellite transmission from Egypt was cut off, the network said in a video yesterday it got back on the air through the services of a third party. The network’s camera equipment was seized and was told to shut down its Egypt operations, it said on its website.

For more copyright 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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