Apple, Google, Oracle, AstraZeneca: Intellectual Property

Apple Inc. and five book publishers lost their bid to have a private antitrust lawsuit over electronic book pricing dismissed.

U.S. District Judge Denise Cote in Manhattan yesterday denied a request by the defendants to throw out the complaint by plaintiffs seeking to represent a class of consumers. They claim Apple and the publishers violated federal and California state law by conspiring to raise the price of e-books.

Last month, the U.S. government sued Cupertino, California-based Apple and the publishers, Hachette SA, HarperCollins, Macmillan, Penguin Group and Simon & Schuster, claiming they broke the law in setting prices for e-books. Cote is overseeing the government suit and private antitrust suits filed in federal court.

The case is In Re: Electronic Books Antitrust Litigation, 11-MD-2293, U.S. District Court, Southern District of New York (Manhattan).


One Juror in Oracle-Google Trial Is Dismissed By Judge

A juror in Oracle Corp.’s lawsuit against Google Inc. over Android software was dismissed by the trial judge, who said the case will proceed with 11 jurors.

U.S. District Judge William Alsup dismissed the juror after she said car trouble forced her to miss a session in federal court in San Francisco.

The jury has begun deliberating over patent-infringement claims related to the development of Android software for mobile devices.

The case is Oracle v. Google, 10-3561, U.S. District Court, Northern District of California (San Francisco).

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AstraZeneca Antitrust Fine Should Stand, EU Court Aide Says

AstraZeneca Plc, the U.K.’s second-biggest drugmaker, shouldn’t get a further reduction in an antitrust fine of 52.5 million euros ($67.5 million), an adviser to the European Union’s highest court said.

Jan Mazak, the advocate general to the EU’s Court of Justice, said the tribunal shouldn’t re-examine a reduction of the penalty, according at a non-binding opinion yesterday.

According to a 2005 antitrust decision, the company misled patent officials and flouted antitrust rules to block a generic version of its Prilosec heartburn medicine. Prilosec was the world’s best-selling drug in the late 1990s.

In 2010, a lower court ruling cut AstraZeneca’s fine from the 60 million euros initially levied by EU regulators.

“The General Court correctly examined all the elements relevant to the calculation of the fine,” Mazak said in the opinion. The higher court shouldn’t “substitute, on grounds of fairness, its own assessment” to replace the legal reasoning underpinning the previous ruling.

Mazak also advised the court to reject challenges from regulators, AstraZeneca and the European Federation of Pharmaceutical Industries and Associations, or EFPIA, an industry group.

The European Commission, the region’s antitrust regulator, has said AstraZeneca blocked cheaper versions from 1993 to 2000 to keep prices high. AstraZeneca provided the patent offices in Belgium, Denmark, Germany, the Netherlands, Norway and the U.K. with incorrect data to extend patent protection on Prilosec, according to the EU.

AstraZeneca is “disappointed” with the legal adviser’s opinion that its appeal should be dismissed, said Sarah Lindgreen, a spokeswoman for the company. AstraZeneca takes “compliance with all laws seriously” and has “a fundamental commitment to doing business in an ethical and proper manner,” she said in an e-mail.

The case is C-457/10 P AstraZeneca v Commission.

Novartis, Pfizer’s Wyeth Seek Delay in Hemophilia Patents Case

The diagnostics unit of Novartis AG and Pfizer Inc.’s Wyeth filed a joint motion on May 14 to stay the deadlines in a drug-patent trial scheduled to begin June 4 in Texas, saying that the delay “is expected to facilitate closure in this matter.”

Novartis sued Wyeth and Bayer AG in 2008, saying their drugs violated patents related to treatments for hemophilia. Novartis and Bayer settled their case in 2010.

The case is Novartis Vaccines and Diagnostics Inc. v. Wyeth, 2:08-cv-00067, U.S. District Court for the Eastern District of Texas (Marshall).

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Austria, Slovenia to Settle Smoked Sausage Squabble, APA Reports

Austria is set to settle a dispute over plans by its southern neighbor Slovenia to protect the name of a sausage popular in both nations, the Austrian Press Agency reported.

Austria’s Agriculture Minister Nikolaus Berlakovich and his Slovene colleague Franc Bogovic reached a compromise in the dispute, APA said, citing the Austrian ministry. An experts’ commission will meet next week to work out the deal, the agency reported.

Slovenia will pursue its plan to restrict the right to sell the smoked pork sausage under its traditional name --“Kranjska klobasa” in Slovenia or “Krainer Wurst” in Austria -- under European Union regulations that also protect Italian Parma ham or Greek Feta cheese. Under the deal the ministers reached, Austrian producers would still be allowed to use the name Kaesekrainer for a variety of the sausage that contains bits of cheese and is the most popular in Austria.

Austria and Slovenia, both part of the Austro-Hungarian Empire before World War I, are embroiled in several disputes over their common cultural heritage. A 56-year debate over minority rights for ethnic Slovenes in southern Austria ended with a deal for dual-language road signs only last year.

Nationalist Austrian politicians including the late Joerg Haider objected to the use of some motifs on Slovenia’s euro coins, arguing Slovenia was misusing Austrian symbols. Austria gained a protected status like the one sought for the sausages by Slovenia for pumpkin seed oil, which is equally popular and traditional in Slovenia.

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In the Courts

Activision Seeks Delay as ‘Warfare’ Trial Claims Hit $1 Billion

Activision Blizzard Inc. is seeking to delay a trial against the creators of its blockbuster game “Call of Duty: Modern Warfare 2” to bring in a new lead lawyer as the possible damages it faces have ballooned to $1 billion.

Activision asked California Superior Court Judge Elihu Berle in Los Angeles in a filing May 14 to postpone the May 29 trial date for 30 days so that its new attorney, Beth Wilkinson, can get prepared.

“Modern Warfare 2,” was released in November 2009, and broke all sales records in the entertainment industry, selling 4.7 million copies in the U.S. and U.K. Activision, based in Santa Monica, California, surpassed Electronic Arts, based in Redwood City, California, as the biggest U.S. video-game publisher by revenue in 2009.

Activision contends Electronic Arts conspired with Jason West and Vince Zampella, the developers of “Modern Warfare 2” as early as July of 2009 to disrupt its “Call of Duty” franchise, according to Activision’s December 2010 amended cross-complaint. The company fired the two men in 2010.

Activision has agreed to pay $42 million to a group of former employees who left in 2010 after West and Zampella were fired and who filed their own lawsuit for unpaid bonuses and royalties for their work on “Modern Warfare 2,” a person familiar with the matter said.

The payment of the so-called first-quarter launch bonuses aren’t a settlement and the group of 40 former employees are still part of the case going to trial, said the person who didn’t want to be identified because the payments haven’t been disclosed in a public record.

Bruce Isaacs, a lawyer for the former employees, declined to comment on the payments.

At a hearing, Richard Kendall, a lawyer for Electronic Arts, said “Activision had the gears in motion already to fire these guys well before EA surfaced in any way as communicating with West and Zampella or any of their representatives.”

The case is West v. Activision, SC107041, California Superior Court (Los Angeles County).

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Amylin Said to Attract Pfizer, AstraZeneca, Sanofi in Sale

Amylin Pharmaceuticals Inc. has lured suitors such as Pfizer Inc., AstraZeneca Plc and Sanofi, which signed confidentiality agreements on the drugmaker’s sale process, said people familiar with the matter.

Merck & Co., Takeda Pharmaceutical Co., Roche Holding AG and Bristol-Myers Squibb Co. also signed agreements to get access to confidential financial and product information for Amylin, said the people, who declined to be identified as talks are private. The drug developer is seeking a buyer following its rejection of an unsolicited offer from Bristol-Myers, people with knowledge of the matter said earlier this year.

First-round bids are due in the next two weeks, said two of the people. Amylin, the maker of the diabetes drugs Bydureon and Byetta, has a market capitalization of more than $4 billion and generated more than $650 million in revenue last year.

“Diabetes is an area companies either want a position in or want a stronger position in,” said Mark Clark, an analyst at Deutsche Bank in London.

Amylin received regulatory approval for Bydureon, a once-weekly formulation of its earlier diabetes drug Byetta, in January, and the therapy may draw $1.5 billion in peak annual sales in the U.S., according to Robyn Karnauskas, an analyst with Deutsche Bank. The drugmaker had been seeking a partner to help market Bydureon outside the U.S. since November, when it ended a collaboration with Eli Lilly & Co.

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IP Moves

Patent Litigator Lavelle Joins DLA Piper from Dewey LeBoeuf

Joseph Lavelle joined DLA Piper LLP’s intellectual property and technology practice and patent litigation group as a partner in the Washington office.

Previously a partner at Dewey & LeBoeuf LLP, Lavelle’s practice focuses on patent litigation and matters where intellectual property and antitrust law intersect. He has experience in federal district court proceedings, as well as cases before the U.S. Court of Federal Claims and the Court of Appeals for the Federal Circuit, according to a statement.

Lavelle also has tried several investigations before the U.S. International Trade Commission.

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