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Abbott, Andy Warhol, Glaxo, Clif Bar: Intellectual Property

March 20 (Bloomberg) -- Abbott Laboratories sued Watson Pharmaceuticals Inc. in Wilmington, Delaware, federal court for allegedly infringing two patents for its Niaspan cholesterol drug.

Abbott, based in Abbott Park, Illinois, contends Parsippany, New Jersey-based Watson is planning to market generic versions of the medicine before the patents expire, according to a complaint filed March 16. In dispute are patents 6,080,428 and 6,469,035.

Watson’s effort to sell the generic product “has led to foreseeable harm and injury to Abbott,” according to the lawsuit, which seeks a ruling of infringement and an order to stop Watson’s premature sale of the drug.

Abbott logged about $1.2 billion in U.S. sales of Niaspan in the 12 months ended Jan. 31, Watson said in a statement citing IMS Health data. Watson confirmed in the statement that it has filed an application with the U.S. Food and Drug Administration for approval to sell its version of the extended-release tablets.

The case is Abbott Laboratories v. Watson Pharmaceuticals Inc., 12-CV-324, U.S. District Court, District of Delaware (Wilmington).

Canon Resolves Patent Dispute With Atman Over Printer Elements

Canon Inc., the world’s largest camera maker, settled patent-infringement disputes with Atman Inc., a California seller of printers and other peripherals for desktop computers.

Tokyo-based Canon sued Atman in federal court in Manhattan on Jan. 23, alleging the San Diego company infringed patents 5,903,803, and 6,128,454. Both patents are related to imaging forming apparatus and photosensitive drums used for laser beam printers.

Canon also filed a complaint against Atman with the U.S. International Trade Commission, a body that has the authority to exclude imports of products that infringe U.S. patents.

According to a March 12 court filing, Atman, which does business as, may not make, import and sell a range of infringing products. In a company statement, Canon said the dispute filed with the trade commission is settled under the same terms.

Atman didn’t contest the validity or enforceability of either patent.

The case is Canon Inc. v. Atman Inc., 1:12-cv-00556-RWS, U.S. District Court, Southern District of New York (Manhattan).

For more patent news, click here.


Warhol Group Seeks Dismissal of Velvet Underground Lawsuit

The Andy Warhol Foundation for the Visual Arts called for the dismissal of a lawsuit filed by the Velvet Underground rock band that claimed the foundation violated the band’s trademark for the banana design Warhol created for its first album.

The foundation, which licenses merchandise based on the late artist’s designs, asked U.S. District Judge Alison Nathan to throw out the trademark infringement suit. The request was made in a filing yesterday in New York federal court that was an answer to the complaint by the band and its founders Lou Reed and John Cale.

Warhol’s foundation said that the band can’t claim trademark infringement because it hasn’t identified any uses for the design. The foundation also said it had agreed to not bring legal action against the band over the copyright for the design.

“Because plaintiff no longer faces an imminent live threat of suit for copyright infringement, the declaratory relief sought by plaintiff no longer presents the court with a justiciable controversy,” lawyers for the New York-based foundation said in court papers.

The Velvet Underground sued the Warhol Foundation in January claiming that it has trademark rights to the banana design, which has become a “symbol, truly an icon” of the group. The band also said the foundation can’t claim a copyright for the design because the album appeared without a copyright notice and no one registered it.

The case is Velvet Underground v. The Andy Warhol Foundation for the Visual Arts, 1:12-cv-00201, U.S. District Court, Southern District of New York (Manhattan).

Shiqi Cosmetics Says It’s Appealing Adverse GSK Trademark Ruling

Guangzhou Shiqi Cosmetics Co. has appealed a ruling that it infringed a trademark GlaxoSmithKline Plc’s Smith Kline & French Laboratories uses for toothpaste, China Daily reported.

In August, Beijing No. 2 Intermediate People’s Court found that Shiqi’s “SMShike” trademark infringed a Smith Kline & French mark which has the same Chinese characters and pronunciation, according to China Daily.

The court ordered Shiqi to halt its use of the mark and to pay damages to the GlaxoSmithKline unit, China Daily reported.

A lawyer for Shiqi Cosmetics told China Daily the trademark should be allowed because they are used for different categories of goods.

Clif Bar Settles Trademark Suit, Luna Fitness Can Keep Its Name.

Clif Bar & Co., the Berkeley, California-based fitness company, has settled a trademark dispute with an Arizona gym, according to a March 14 court filing.

The California company sued Luna Fitness of Tempe LLC for trademark infringement in April 2011. Clif objected to the gym’s name, claiming it infringed the name used for Clif’s Luna Bar energy snacks.

Clif had sought damages and a court order requiring the gym to change its name.

Terms of the settlement weren’t disclosed beyond a statement in the court filing that each party was to pay its own litigation costs and attorney fees.

In a March 15 blog posting, Luna Fitness said it would be keeping its “name logo and brand intact.”

The case is Clif Bar & Co. v. Luna Fitness of Tempe LLC, 2:11-cv-00660-GMS, U.S. District Court, District of Arizona (Phoenix).

For more trademark news, click here.


‘Pi Symphony’ Not Infringed by Sounds of Pi, Judge Says

A federal judge in Portland, Oregon, chose “Pi Day” to issue a copyright opinion related to musical compositions based on the mathematical constant pi.

Pi Day, an unofficial holiday invented at the San Francisco Exploratorium in 1988, occurs on March 14, when the digits for the month and date comprise the three first numbers in pi: 3.14159265. Pi is the constant that is the ratio of a circle’s circumference to its diameter and is an irrational number that can be carried out an infinite number of digits.

Lars Erickson of Omaha, Nebraska, composed his “Pi Symphony” in 1992. The symphony, inspired by Pi, is based on musical notes played in the order of the digits in pi.

Michael John Blake of Portland created a video of his musical work and posted it on Google Inc.’s YouTube video-sharing site. Like Erickson he assigned a number to each note of the musical scale and then constructed a melody by playing the notes in the order of the digits of pi.

Erickson objected, claiming Blake’s work infringed on his. He filed a copyright-infringement suit in federal court in Omaha, Nebraska, in April, and, according to a video posted on YouTube by Blake, he also filed a take-down request under the Digital Millennium Copyright Act.

The case was transferred to Oregon in September, and on March 14, U.S. District Judge Michael H. Simon dismissed the case. In his ruling he said the primary similarities between the two works is the musical pattern crated by transposing the digits of pi to musical notes. That pattern isn’t protectable under copyright law because it’s a fact, he said.

Although Erickson’s copyright on his work is and remains valid, Simon said he may not use the copyright to stop others from using that same pattern of musical notes. Other elements in his work can be protected, he said, such as “the choice of scale, rhythm, harmony and embellishments or variation.”

If the similarities in the two works based on the non-protectable sequence of pi were to be set aside, Simon said “very few -- if any -- similarities remain.

Erickson was unrepresented by counsel. Blake was represented by Stephen J. Joncus of Portland, Oregon-based Klarquist Sparkman LLP.

The case is Erickson v. Blake, 3:11-cv-01129-SI, U.S. District Court, District of Oregon (Portland).

For copyright news, click here.

IP Moves

Foley Hires Andrew Baluch, Ex-White House IP Enforcement Head

Foley & Lardner LLP hired Andrew S. Baluch for its IP practice, the Milwaukee-based firm said in an e-mailed statement.

Baluch was previously the director of international IP enforcement for the office of the IP Enforcement Coordinator at the White House. Before his White House appointment, Baluch was expert legal adviser to the undersecretary and director of the U.S. Patent & Trademark Office.

He has also served as a judicial clerk to Judge Richard Linn of the Court of Appeals for the Federal Circuit, the Washington-based court that hears appeals of patent cases. Before he was appointed to the bench in 1999, Linn was himself a partner at Foley, where Baluch practiced as an associate before he became a judicial clerk.

Baluch has an undergraduate degree in materials science engineering from Northwestern University and a law degree from Boston University.

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

To contact the editor responsible for this story: Michael Hytha at

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