Myriad, Apple, Warner Music, Comcast: Intellectual Property

Aug. 7 (Bloomberg) -- Ambry Genetics Corp., a seller of tests for genetic risks of breast cancer, accused Myriad Genetics Inc. of misusing its patents to “intimidate and chill competition” in the market.

Myriad sued Ambry and another closely held company, Houston-based Gene By Gene Ltd., in July, claiming their tests infringe its patents for the testing process and synthesized DNA. The tests look at genes known as BRCA to determine if there is a hereditary risk of developing breast or ovarian cancers.

Myriad, based in Salt Lake City, filed the suits when the companies began offering competing tests hours after a U.S. Supreme Court ruling that invalidated some of Myriad’s patents on genes linked to the diseases.

Ambry said Myriad is sending threatening letters to doctors with false allegations meant to confuse genetic counselors. The antitrust contentions, which are only against Myriad and not the other patent owners, were part of a filing in which Ambry responded to the Myriad claims.

The patents are invalid, Ambry says, based on the high court’s ruling in the Myriad case and a March 2012 decision involving diagnostic tests.

The patent claims asserted in the lawsuits weren’t those invalidated by the high court.

“The BRCA patent owners will demonstrate that the testing process employed by Ambry infringes 10 patents covering synthetic primers, probes and arrays, as well as methods of testing, related to the BRCA1 and BRCA2 genes,” Myriad spokesman Ron Rogers said.

Myriad denies that its tests are unreasonably expensive, saying the average cost to patients is less than $100. Many patients will be able to get them for free once provisions of the federal Affordable Care Act take effect.

In addition to Myriad, the other owners of the patents -- the University of Utah, the University of Pennsylvania, the Hospital for Sick Children in Toronto and Endorecherche Inc. -- also joined in the suits against Ambry and Gene by Gene.

The Ambry case is University of Utah Research Foundation v. Ambry Genetics, 13cv640, The Gene By Gene case is University of Utah Research Foundation v. Gene By Gene LTD., 13cv643, both U.S. District Court for the District of Utah (Salt Lake City).

VirnetX Receives Two New Patents, Adds One to Case Against Apple

VirnetX Holding Corp., whose $368.2 million jury victory against Apple Inc. over patents for virtual-private-network technology was upheld by a federal judge, has added one new patent to a different suit against the Cupertino, California-based company.

Apple was sued by VirnetX in federal court in Texas in November 2012, three days after a jury handed down the company’s $368.2 million verdict against Apple. That new case alleged that Apple products, including the iPhone5, infringed four patents related to network protocols for secure communications.

Yesterday, Zephyr Cove, Nevada-based VirnetX was issued two new patents -- 8,504,696, and 8,504,697 -- and said in a statement that it was filing papers with the court to add the second of these two new patents to that suit.

The company, which relies on patent licensing for its income, said in the statement the two new patents “will strengthen or ongoing licensing efforts to the mobile markets.” VirnetX claims its parent portfolio includes 23 U.S. and 41 international patents and more than 100 pending applications.

Its earlier jury award against Apple was upheld in February by a judge in the same court. U.S. District Judge Leonard Davis in Tyler, Texas, denied Apple’s requests for a new trial or a reduction in the damage award.

That case is VirnetX Inc. v. Cisco Systems Inc., 6:10-cv-00417-LED, U.S. District Court for the Eastern District of Texas (Tyler).

The case to which the new patent was added is VirnetX Inc. v. Apple Inc., 6:12-cv-00855-LED, U.S. District Court, Eastern District of Texas (Tyler).

Google Asks to Overturn Mobile Phone Import Ban Won by Microsoft

Google Inc.’s Motorola Mobility told a U.S. appeals court yesterday a Microsoft Corp. patent that led to an import ban on its phones is the “poster child” for common ideas being applied to new devices and labeled an invention.

Microsoft’s patent for a way phones synchronize calendars with computers is little different from techniques used by Apple Inc.’s failed Newton personal digital assistant of the 1990s, or Microsoft’s desktop software, Motorola Mobility counsel Charles Verhoeven said.

Motorola Mobility is seeking to invalidate patent 6,730,566, which it concedes it has infringed. The U.S. International Trade Commission in Washington issued an import ban in May 2012 after finding that Motorola Mobility devices violated the patent.

The commission rejected infringement claims on four other patents, and Microsoft appealed that part of the case in a second argument heard yesterday by the U.S. Court of Appeals for the Federal Circuit.

The patent is part of Microsoft’s ActiveSync software that Motorola Mobility used to license before the two companies started fighting.

The case is part of a broader argument by Redmond, Washington-based Microsoft that Google’s market-dominant Android operating system uses its technology. Motorola Mobility, which was acquired by Google in 2012, is one of the biggest holdouts of a licensing program that Microsoft started three years ago.

While the synchronization was common with computers, software engineers who thought “wouldn’t it be great to have this on a mobile device” were initially prevented by their limited power, said Microsoft lawyer Constantine Trela.

Google, based in Mountain View, California, is seeking to revive Motorola Mobility’s smartphone business. On Aug. 1 it announced a new flagship Moto X smartphone with customizable colors that will be assembled in the U.S. -- probably putting it outside the ITC’s jurisdiction.

Microsoft contends any Motorola Mobility phone that has the syncing feature infringes the patent, and has sued U.S. Customs, saying its officials aren’t stopping phones from crossing the U.S. border.

The cases are Microsoft Corp. v. ITC, 12-1445, and Motorola Mobility LLC v. ITC, 12-1535, both U.S. Court of Appeals for the Federal Circuit (Washington). The ITC case is In the Matter of Certain Mobile Devices, Associated Software and Components Thereof, 337-744, U.S. International Trade Commission (Washington).

For more patent news, click here.


California Doughnut Shop Changes Name of Product to Avoid Suit

A doughnut shop in Santa Monica, California, is changing the name of one of its products in the wake of complaints from a New York-based pastry-maker, the Los Angeles Times reported.

Counsel for New York’s Dominique Ansel sent DK Donuts & Bakery a cease-and-desist letter demanding the California bakery quit using the term “Dkronut” for its hybrid croissant-doughnut pastry, according to the Times.

Ansel, who filed an application in May to register the term “cronut” as a U.S. trademark, said through counsel that his IP rights were infringed and customers were confused by DK Donuts’ unauthorized use of such a similar term, the newspaper reported.

DK Donuts said it was disappointed, and has changed the name of its pastry to the “DK Double Decker O-Nut,” the Times reported.

For more trademark news, click here.


Warner Music Sues Fullscreen Over Copyrighted YouTube Videos

Fullscreen Inc., a YouTube content provider, was sued by music publishers including Warner Music Group over claims it promotes music videos without paying royalties.

Fullscreen, based in Culver City, California, has engaged in “willful copyright infringement” by using music videos without obtaining licenses or paying royalties, according to the complaint filed yesterday in federal court in Manhattan by the National Music Publishers’ Association. The trade group represents American music publishers and their songwriting partners.

“Fullscreen’s success and growth as a digital business is attributable in large part to the prevalence and popularity of its unlicensed music videos,” David Israelite, NMPA’s president and chief executive, said in an e-mailed statement. “We must stop the trend of ignoring the law, profiting from someone else’s work, then asking forgiveness when caught.”

Fullscreen is a multichannel network that operates and aggregates thousands of YouTube channels, with content that is comprised mainly of cover song videos, according to the complaint.

Founded by former YouTube manager George Strompolos, Fullscreen claims to have 200 million subscribers across 15,000 YouTube channels with more than 2.5 billion monthly views, according to its website.

Among the songs allegedly infringed are hits by Kanye West, Justin Bieber, Ke$ha, Lady Gaga and Katy Perry. The NMPA said today the group settled similar copyright issues with Maker Studios Inc., another multi-channel network.

Jen Lum, a spokeswoman for Fullscreen, didn’t immediately return a phone call seeking comment on the lawsuit.

The case is Warner/Chappell Music Inc. v. Fullscreen Inc., 13-cv-5472, U.S. District Court, Southern District of New York (Manhattan).

Comcast Suggests New Anti-Piracy Initiative to Content Owners

Comcast Corp., the largest U.S. cable provider, is in discussions with movie and television studios and Internet service providers about a new technology that would give those who are downloading content without authorization an opportunity to pay for legal access to what they are downloading, the entertainment-industry trade paper Variety reported.

Under this system, a pop-up message would provide links to buy or rent the content the user is trying to download without permission, according to Variety.

This system would provide an alternative to a system used by many content owners in which warnings are issued to unauthorized downloaders that they could have their Internet access limited, Variety reported.

One key difference between the two systems is that the buy or rent opportunity pop-up would occur in real time, as the consumer is attempting a download, while the warning system generally works after the fact, according to the publication.

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: Michael Hytha at

Before it's here, it's on the Bloomberg Terminal.