Amazon, Oracle, Toshiba, Cipla: Intellectual Property

Sept. 3 (Bloomberg) -- Inc. can’t be held vicariously liable for copyright infringement done by its affiliates, a federal appeals court held Aug. 29.

Sandy Routt claimed that some of the participants in Amazon’s affiliate-marketing program used her copyrighted photographs without her permission. She sued Amazon claiming the company was vicariously liable for its affiliates’ infringement, but a district court in Seattle dismissed her lawsuit.

The unpublished opinion from the U.S. Court of Appeals for the Ninth Circuit found that an agreement Amazon has with its affiliates prohibits them from infringing on another’s copyright or trademark, and gives Amazon the right to monitor websites to ensure compliance. The “operating agreement gives Amazon some ability to affect the conduct” of its associates.

The court held, however, that because Amazon couldn’t “supervise and control” the infringement, the company couldn’t be sued for vicarious liability.

As a result, the appellate court upheld dismissal of the case.

The case is Routt v., Inc. No. 13-35237, U.S. Court of Appeals for the Ninth Circuit (San Francisco).


Oracle Offered Reduced Damages Award or Retrial in SAP Case

Oracle Corp., the U.S. software maker, lost a bid on Aug. 29 to reinstate a $1.3 billion damages award against SAP SE for copyright infringement, although it may get another chance for a trial, a federal appeals court said.

The ruling may reopen a dispute that arose seven years ago between Oracle and Walldorf, Germany-based SAP, the biggest maker of business-management software.

Oracle sued SAP in 2007, saying a Texas unit of the German company made hundreds of thousands of illegal downloads and several thousand copies of software that it used to market maintenance services to customers who ran programs from firms that Oracle had taken over.

A jury in 2010 awarded $1.3 billion in damages based on the value of a hypothetical license that SAP would have negotiated for using Oracle’s copyrighted software. U.S. District Judge Phyllis Hamilton, who presided over the case, ruled that the jury award was excessive and that Oracle could either accept $272 million -- the amount she found that represented Oracle’s lost profits combined with SAP’s profits -- or retry the case.

The appeals court last week said the reduced amount was too low and that Oracle could choose either $356.7 million in damages or a new trial. The appeals court, however, held that Oracle couldn’t seek damages based on the value of a hypothetical license, as it had in the first trial, because it was too speculative.

“We are extremely pleased with the court’s decision,” said Andy Kendzie, an SAP spokesman.

Jessica Moore, a spokeswoman for Redwood City, California-based Oracle, declined to comment on the ruling.

The case is Oracle Corp. v. SAP AG, 12-16944, U.S. Court of Appeals for the Ninth Circuit (San Francisco). For more copyright news, click here. For trademark news, click here.


Cipla Targets U.S. With Glaxo’s Advair, Anti-AIDS Medicines

Cipla Ltd. shot to prominence a decade ago by selling AIDS drugs for $1 a day in Africa. Now, the Indian generics maker is seeking a bigger slice of the U.S. market with cheaper medicines for asthma and HIV.

Cipla’s top target is a version of GlaxoSmithKline Plc’s asthma treatment Advair. It plans to submit an application to the U.S. Food and Drug Administration this year for an aerosol version, Chairman Yusuf Hamied said in an interview with Bloomberg News on Sept. 1. While the U.S. patent on the drug expired in 2010, Glaxo still has protections on the inhalers used to deliver it, and the U.S. is making generic drug makers prove that their devices are as good.

Hamied’s goal is to make Cipla a significant player in the U.S. by 2020, with 20 percent of sales coming from there, compared with about 9 percent now. In the HIV market, he plans to bring cheaper copies of top-selling Gilead Sciences Inc. medicines to the U.S. Cipla, which is based in Mumbai, had global sales of about $1.6 billion last fiscal year.

Even without patent protection on the drug itself, Glaxo has protections on the inhalers that dispense the drug -- until 2016 for the “Diskus” device that dispenses the powder version of the drug, and until 2025 on the inhaler that dispenses the aerosol version. The FDA’s last guidance from September laid out characteristics that an inhaler should have, including a similar size and shape to Diskus, suggesting some generic devices may qualify.

For more, click here.

Toshiba Loses First Round in ITC Patent Fight Over Graphics

An International Trade Commission judge found that Toshiba Corp. infringes two patents related to consumer-electronics displays owned by Graphics Properties Holdings Inc.

In a notice posted on the agency’s website, ITC judge James Gildea said that a third patent wasn’t violated.

Graphics Properties is seeking to block imports of televisions and tablet computers that are found to infringe its patents.

Gildea’s findings are subject to review by the full International Trade Commission, which should complete its investigation by the end of the year.

Toshiba representatives didn’t respond to e-mails seeking comment.

Par Cleared of Patent Infringement on Novartis Dementia Patch

Novartis AG has failed to prove that Par Pharmaceutical Cos. infringed Swiss drugmaker’s patent covering a patch that delivers medicine to dementia patients, a federal judge in Wilmington, Delaware, ruled Aug. 29.

U.S. District Judge Richard Andrews held that Novartis “failed to provide sufficient evidence” that Par’s generic version of drugs used in the Exelon patch infringed Novartis patent, which expires in 2019.

Par had also challenged the validity of patent, but the judge didn’t address the validity because he found there was no infringement.

The case is Novartis Pharmaceuticals Corp. v. Par Pharmaceutical Inc., 11-cv-01077, U.S. District Court, District of Delaware (Wilmington).

For more patent news, click here.

To contact the reporter on this story: Ellen Rosen in New York at

To contact the editors responsible for this story: Michael Hytha at David Glovin, Joe Schneider

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