Lilly, Ironwood, Mattel, Celgene: Intellectual Property

Eli Lilly & Co. sued Biogen Idec Inc. in a London court to revoke a European patent on a potential treatment for immune-system diseases.

Biogen’s patent on the use of a class of medicines known as BAFF inhibitors to regulate the activity of a type of white blood cell is “not new” and doesn’t “involve an inventive step,” Eli Lilly said in court papers filed in London in November.

Eli Lilly, whose top-selling schizophrenia drug Zyprexa lost its U.S. patent protection in October, is working to overcome expiring patents by investing in research. The Indianapolis-based drugmaker has new treatments for Alzheimer’s, diabetes and cancer in final-stage trials.

Biogen, the world’s largest maker of medicines for multiple sclerosis, responded in November saying its BAFF inhibitors patent is valid. Penny Gilbert, a lawyer for the Weston, Massachusetts-based company, didn’t respond to a phone call yesterday requesting comment.

Eli Lilly lost a related patent dispute before the U.K. Supreme Court in November when the court ruled for Rockville, Maryland-based Human Genome Sciences Inc. over another potential treatment for immune diseases. Eli Lilly had argued Human Genome’s list of uses for the neutrokine alpha protein was too vague.

Gregory Kueterman, a spokesman for Eli Lilly, declined to comment on the Biogen litigation because the case is ongoing.

Ironwood Says Synergy Voluntarily Dismissed New York Lawsuit

Ironwood Pharmaceuticals Inc. said Synergy Pharmaceuticals Inc. voluntarily dropped a lawsuit filed in a New York court against the drugmaker and its chief scientific officer.

The lawsuit, which related to a matter before the European Patent Office, was dismissed without prejudice on Dec. 29, Ironwood said yesterday in a U.S. regulatory filing.

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‘Beverly Hillbillies’ Actress Settles Trademark Suit with Mattel

The actress who played Elly May Clampett on “The Beverly Hillbillies” television program settled her trademark infringement suit against Mattel Inc., according to a court filing.

Donna Douglas of Zachary, Louisiana, claimed her rights were infringed by an “Elly May” Barbie doll made and sold by Mattel. She sued the company in federal court in Baton Rouge, Louisiana, in May.

Even though the 274-episode show ended 40 years ago, Douglas still makes personal appearances in association with the role, she said in court papers.

Douglas said that she was harmed by El Segundo, California-based Mattel’s introduction of the “Elly May” Barbie doll in December 2002. The package for the doll features a photo of her in the role and, she claims, the doll is designed to resemble her.

She never endorsed the doll, nor gave Mattel permission to use her name, image or likeness to promote the doll, Douglas said in her complaint.

No terms of the settlement were disclosed in the Dec. 27 court filing. When the suit was filed, Mattel spokeswoman Jules Andres said in an e-mail that the toy company had “licensed the rights to Beverly Hillbillies for this product through all the appropriate channels.”

The case is Douglas v. Mattel Inc., 3:11-cv-00297-FJP-CN, U.S. District Court, Middle District of Louisiana (Baton Rouge).

Web-Name Expansion Must Ease Corporate Concerns, U.S. Says

The nonprofit group that manages the Internet’s address system needs to take steps to ease corporate concerns over a program to add hundreds of top-level domains beyond .com and .net, the U.S. Commerce Department said.

Once the application period for Web suffixes ends, the Internet Corporation for Assigned Names and Numbers should assess the need to phase in the introduction of domains, Lawrence Strickling, Assistant Secretary of Commerce, wrote in a Jan. 3 letter to Icann Chairman Stephen Crocker.

During meetings with business representatives in recent weeks, the Commerce Department has “learned that there is tremendous concern about specifics of the program that may lead to a number of unintended and unforeseen consequences and could jeopardize its success,” Strickling wrote.

General Electric Co., Johnson & Johnson and Coca-Cola Co. are among more than 40 companies that have joined with the Association of National Advertisers to oppose the expansion, saying it will increase costs for companies, confuse customers and create new risks of Internet fraud.

Icann, operating under a Commerce Department contract, approved a plan in June to expand the number of top-level domains beyond .com, .net and .org to spur online innovation. The group will start accepting applications Jan. 12 for Web suffixes including company and brand names, cities and words such as .book. Applications will cost $185,000 for each domain.

In his letter, Strickling also urged Icann to take steps to “minimize the perceived need” for trademark owners to defensively register new top-level domains that they have no interest in operating, and improve awareness of the “purpose and scope” of the program.

Strickling runs the National Telecommunications and Information Administration, the Commerce Department unit that oversees the Icann-held contract. He said his agency does “not seek to interfere with the decisions and compromises” reached during Icann’s six-year deliberations over the expansion.

Icann appreciates that Strickling “recognizes that many of the recent concerns expressed about the new top-level domain program are more about ‘perceived’ problems than actual deficiencies,” Crocker said in an e-mailed statement yesterday. Icann will review Strickling’s recommendations and those of other parties “with the intent of making this program truly beneficial to the global Internet community,” Crocker said.

The Association of National Advertisers, while appreciative of the Commerce Department raising the industry’s concerns with Icann, is disappointed the agency didn’t call for a pause or delay in the domain-expansion program, Dan Jaffe, ANA’s executive vice president of government relations, said in an interview yesterday.

The Federal Trade Commission said in a Dec. 16 letter that Icann should introduce the expansion as a pilot program and reduce the number of domains created to lower the risk of consumer fraud. The FTC, which has no direct authority over Icann, can act when companies engage in deceptive trade practices.

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Microsoft Sues U.K. Retailer Comet for Selling Counterfeit CDs

Microsoft Corp. sued Kesa Electricals Plc’s Comet unit for allegedly selling more than 94,000 counterfeit disks.

Comet made fake versions of Windows Vista and Windows XP recovery CDs at a factory in Hampshire, England, then sold them at its retail outlets across the U.K., Microsoft said in a statement on its website.

“Comet produced and sold thousands of counterfeit Windows CDs to unsuspecting customers in the United Kingdom,” David Finn, associate general counsel in Microsoft’s anti-piracy unit, said in the statement.

Microsoft has replaced Vista and Windows XP with Windows 7, the operating system it introduced in October 2009. Together, the Windows products run more than 90 percent of the world’s PCs and account for 27 percent of Redmond, Washington-based Microsoft’s revenue, according to data compiled by Bloomberg.

Comet said in an e-mailed statement it hadn’t infringed Microsoft’s copyright and would defend the claim vigorously. Kesa agreed in November to sell the money-losing Comet unit to focus on markets such as France.

The Business Software Alliance, a lobbying group whose members include Microsoft, has estimated that piracy of computer software cost the industry $59 billion in 2010, although the U.S. Government Accountability Office has said the issue is too complex to quantify.

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Trade Secrets/Industrial Espionage

Celgene, Agios Sued Over IP Agreement by Penn Cancer Center

Celgene Corp., a pharmaceutical company focused on cancer treatments, is one of three defendants sued by a cancer institute at the University of Pennsylvania.

The Abramson Family Cancer Research Institute sued Celgene, Agios Pharmaceuticals Inc. and Dr. Craig Thompson in federal court in New York, seeking as much as $1 billion in compensation for intellectual property it said was subject to an agreement Thompson made when he was the institute’s scientific director.

Thompson is presently president and chief executive of the Memorial Sloan-Kettering Cancer Center, which isn’t a party to the litigation.

That IP, related to cancer metabolism research, was funded in part or in whole by the institute, according to court papers. The institute claims it’s suffered damages in excess of $1 billion.

Agios, of Cambridge, Massachusetts, is a company founded by Thompson, and Summit, New Jersey-based Celgene paid $130 million for a license to develop on an exclusive basis drugs resulting from Agios research, according to the complaint.

The institute asked the court to declare the rights and interests of each party in the litigation, and for awards of damages that “ultimately exceed $1 billion.”

Agios -- where Thompson is listed as a founder -- “does not comment on the specifics of pending litigation,” company spokesman Dan Budwick said in an e-mail.

“The claims asserted in this case are without merit,” he added. “Agios always has and will continue to operate with the highest level of integrity.”

Celgene didn’t respond immediately to e-mailed requests for comment.

The institute is represented by David C. Burger of Robinson Brog Leinwand Greene Genovese & Gluck PC of New York. Thompson is represented by Allan J. Arffa and Eric Alan Stone of New York’s Paul Weiss Rifkind Wharton & Garrison LLP.

According to the most recent court filing, Thompson and Agios must respond to the complaint by Feb. 3.

The case is the Leonard and Madlyn Abramson Family Cancer Research Institute at the Abramson Cancer Center of the University of Pennsylvania v. Thompson, 1:11-cv-09108-LAK, U.S. District Court, Southern District of New York (Manhattan).

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