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Medtronic, Sequenom, Pfizer: Intellectual Property

Medtronic Inc. will lose its bid for a permanent injunction barring NuVasive Inc. from selling spinal surgery devices that were found to infringe patents held by a Medtronic unit, a federal judge in San Diego said in a tentative ruling.

U.S. District Judge Michael Anello also said yesterday that he will let lawyers attempt to change his tentative rulings at a hearing today. The tentative rulings follow a Sept. 20 jury verdict in which Minneapolis-based Medtronic was awarded $101.2 million in damages after the jury found that San Diego-based NuVasive infringed three Medtronic patents.

The judge also tentatively denied requests by NuVasive to overturn the verdict or grant a new trial.

The case is Medtronic Sofamor Danek USA v. NuVasive Inc., 3:08-cv-1512, U.S. District Court, Southern District of California (San Diego).

Sequenom Accuses Aria, Natera of Infringing Prenatal Test Patent

Sequenom Inc., which uses genetic analysis to diagnose conditions such as Down syndrome, sued Aria Diagnostics Inc. and Natera Inc. for allegedly infringing a patent used for non-invasive prenatal testing.

Aria and Natera developed prenatal tests using methods covered by a patent exclusively licensed to Sequenom in the U.S., according to separate complaints filed yesterday in federal court in San Diego, where Sequenom is based.

Sequenom said its claims “relate to nucleic acid analysis and prenatal diagnosis.”

Earlier complaints filed by Aria and Natera seek a judge’s declaration that they haven’t infringed the disputed patent, 6,258,540, which was licensed to Sequenom by U.K.-based Isis Innovation Ltd. Isis Innovation is the technology-transfer organization associated with the University of Oxford and the two named inventors have an affiliation with the school. Natera said Sequenom’s claims on the ‘540 patent are invalid.

Representatives of Aria and Natera didn’t respond to phone and e-mail messages seeking comment on Sequenom’s complaints.

The cases are Sequenom Inc. v. Natera Inc. 12-cv-0184, and Sequenom v. Aria Diagnostics Inc., 12-cv-0189, U.S. District Court, Southern District of California (San Diego).

Roche Patent Case Against Nova Biomedical, LifeScan Revived

Roche Holding AG’s diagnostics unit won an appeals court ruling that revives a patent-infringement case against Johnson & Johnson’s LifeScan unit and Nova Biomedical Corp. over glucose monitors.

The U.S. Court of Appeals for the Federal Circuit yesterday said a judge should have considered the definition of a key term in the Roche patents for methods to determine the concentration of glucose in a blood sample. The court vacated a finding of non-infringement, and sent the case back to the trial court for further proceedings.

For more patent news, click here.


Pfizer Inc.’s ‘Viagra’ Mark Infringed by ‘Viaguara,’ Court Rules

Pfizer Inc.’s European trademark for its erectile dysfunction drug Viagra would be infringed by an energy and alcoholic drink named Viaguara, a European court ruled, according to the Associated Press reported.

The European Union’s General Court said the name for the drink, used by a Polish company, was trying to piggyback on the fame of the Pfizer product, AP said.

The ruling came in an appeal of a 2005 rejection of the Polish company’s application for a trademark, AP said. The court also said it was dangerous to make a link between an alcoholic drink and an anti-impotence drug, AP reported.

For more trademark news, click here.


Compositionally Similar Photo Infringes Copyright, Court Says

New English Teas Ltd., a producer of teas and tea blends, was found to have infringed a copyright by using an image that was too much like one on products by a maker of London souvenirs.

The U.K. Patents Court said the picture on the tea tin was so similar in composition to a photo used on Temple Island Collections Ltd.’s souvenirs that actual infringement occurred, even though the tea company’s image wasn’t a copy.

The image to which Coventry-based Temple Island objected is a black-and-white composite photo showing the Houses of Parliament to which a red double-decker bus has been added.

Temple Island’s original image was first published in 2006 and has been used on a wide range of souvenirs including mugs and stationery every since. Historic Royal Palaces, which operates the Tower of London, took a license to the photo and uses it on T-shirts, according to court papers.

The creator of the tea-tin image “was clearly trying to avoid infringing” the Temple Island photo, the court noted. This effort was unsuccessful, the court said. The tea company and its owner “do not really have a case of independent design at all,” according to the opinion.

The judge said the common elements in the tea-tin image and the original photo are “causally related” and this constitutes impermissible copying.

The case is Between Temple Island Collections Ltd. and New English Teas Ltd., 1CL70031, In the Patents County Court.

Dreamfly Productions Sued Over ‘En Pointe’ Reality TV Program

Dreamfly Productions LLC, a Dallas-based production company, was sued for copyright infringement and trade secret misappropriation by the developer of a ballet-themed reality television program.

According to the complaint filed Jan. 23 in federal court in Dallas, Texas resident John Harris Masterson created a reality-based TV series that followed dancers and other members of the Texas Ballet Theater.

Masterson hired Dreamfly Productions in September 2010 to assist in the production of “Starting Pointe.” After several months of pre-production, the relationship between Masterson and Dreamfly deteriorated to a point when, in March 2011, Masterson terminated the agreement, he said in court filings.

Under a negotiated agreement, Dreamfly was to return all work product for the series, Masterson said. He said nothing was returned and in July, Dreamfly announced a reality TV series “En Pointe,” featuring the Miami City Ballet, headed by Edward Villella, formerly of the New York City Ballet.

Masterson said “En Pointe” has “the same format, same subjects, similar film footage, same perspective and same recurring themes” as “Starting Pointe,” and therefore infringes his copyright.

After he demanded that Dreamfly cease production of the series, Dreamfly and its director Laura Jenkins continued to infringe his copyrights, Masterson said.

He asked the court to halt the alleged infringement of his copyright and use of his trade secrets. He is seeking money damages, profits derived from the allegedly infringing series, and attorney fees and litigation costs.

Lisa Jenkins, the director of Dreamfly Productions, said in an e-mail that she hadn’t been served with the complaint. She said she’s not the owner of “En Pointe,” and only acts as the sales agent for the program.

Neither of the ballet-oriented reality shows has been produced, she said.

“How does a program that has never had a single episode produced infringe on another program that does not have a single episode produced?” she said.

Masterson is represented by Aaron Davidson, Priscilla Dunckel and Elizabeth K. Stanley of Houston’s Baker Botts LLP.

The case is Masterson v. Jenkins, 12-cv-00234, U.S. District Court, Northern District of Texas (Dallas).

Getty’s Sale of Photos Featuring Le Corbusier Sofas Infringes

Hellman & Friedman LLC’s Getty Images unit is appealing a French court ruling that its sale of stock images of armchairs and sofas created by French furniture designers in collaboration with the artist Le Corbusier constitutes copyright infringement, the British Journal of Photography reported.

The owners of the intellectual property rights relating to the furniture have waged a 25-year war to halt the images’ use in advertising to promote luxury products, according to the journal.

Getty was accused of selling the images without authorization and without crediting the designers, the journal reported.

The stock photo agency told the journal that while it will appeal the court ruling, it has now sent its contributors a list of objects that can’t be featured in licensed content.

For copyright news, click here.

Trade Secrets/Industrial Espionage

Dice Corp.’s Trade Secrets Hearing Against Bold Set for Jan. 31

Dice Corp.’s trade-secrets case against Bold Technologies Ltd. of Colorado Springs, Colorado, is in the active motions stage and a hearing is set for Jan. 31 on Dice’s opposition to Bold’s request for dismissal.

Dice, a maker of central station automation platforms for security monitoring systems, sued Bold in federal court in Bay City, Michigan, in August, claiming one of its ex-employees transferred proprietary software from its servers to Bold.

The software cost more than $5 million to develop, Bay County, Michigan-based Dice said in its pleadings. Bold has been unjustly enriched by the actions of the former Dice employee, according to court papers.

In November, the parties stipulated to the dismissal of some elements in the case, including the unjust-enrichment claim.

Bold then filed papers Dec. 19 seeking dismissal of Dice’s claim for violations of the Computer Fraud and Abuse Act, saying Dice didn’t state a claim the court could redress.

Dice said in a Dec. 27 filing that the damages assessment and remedial activities it had to undertake after the software was allegedly transferred was enough of a loss for the law to be applicable.

U.S. District Judge Thomas L. Ludington will hold a hearing on these motions Jan. 31.

The case is Dice Corp. v. Bold Technologies Ltd. 11-cv-13578, U.S. District Court, Eastern District of Michigan (Bay City).

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