AstraZeneca, American Eagle, Nebraska: Intellectual Property

Dec. 4 (Bloomberg) -- AstraZeneca Plc will soon learn whether it faces billions of dollars in damages for paying a generic-drug maker to delay copies of its blockbuster heartburn tablet Nexium in the first trial since the U.S. Supreme Court ruled consumers can sue over such pay-to-delay deals.

The case against AstraZeneca and the Indian generics maker Ranbaxy Laboratories Ltd. challenges a 2008 settlement of a patent lawsuit that stalled sales of a cheaper version of Nexium in the U.S. until AstraZeneca’s patents expired last May.

The verdict will give “greater clarity” in determining “what is lawful and unlawful” in arranging such deals, said Richard Steuer, an antitrust lawyer with Mayer Brown LLP in New York who isn’t involved in the case.

Dozens of wholesalers, pharmacy companies and hundreds of thousands of possible individual consumers were overcharged billions of dollars for years as a result of the deal, according to the complaint. While the terms of the accord are private, plaintiffs say Ranbaxy got more than $1 billion, a payment they claim violated antitrust law and is too high for a patent dispute.

AstraZeneca and Ranbaxy started a six-week jury trial on Oct. 20 in Boston, setting up the first test of what limits may be placed on pay-for-delay deals among drugmakers to protect steady streams of revenue on popular drugs. Closing arguments began yesterday.

The case is In Re Nexium (Esomeprazole) Antitrust Litigation, 1:12-md-02409, U.S. District Court, District of Massachusetts (Boston).

Nebraska Told to Pay Patent Owners’ $725,000 Attorney Fees

The state of Nebraska has been ordered to pay two patent-assertion companies a total of $725,000 in attorney fees after the state’s attorney general tried to halt their law firms’ sending infringement demand letters to companies within the state.

Nebraska Attorney General Jon Bruning told Georgetown, Texas-based Farney Daniels PC that the demand letters the firm was sending could be considered to be unfair patent enforcement and potentially violated the Nebraska Consumer Protection Act.

In his Dec. 2 order, U.S. District Judge Joseph F. Bataillon awarded $325,000 to Activision TV Inc. and $400,000 to MPHJ Technology Investments LLC.

The award followed Bataillon’s Sept. 2 order in which he said that the attorney general inappropriately attempted to bar a law firm representing patent owners from sending the demand letters to Nebraska companies and individuals. He said there was “no significant evidence” upon which the attorney general based the cease-and-desist letter he sent to Farney Daniels PC.

The judge noted that the attorney general “stated in open court that it intended to stop the firm of Farney Daniels from continuing its patent enforcement-related communications.” This interfered with the patent owners’ First Amendment rights, he said.

The judge also issued an order permanently barring the attorney general from issuing cease-and-desist orders related to patent enforcement. He said that without such an order “the attorney general can return to his old ways and attempt to reissue another cease and desist order without an investigation of showing of bad faith” on the part of the patent owners.

The court “is not in the business of telling the state how and when to conduct its investigations, but such investigations must be constitutional and outside those areas preempted by federal law,” he wrote in his Sept. 2 order.

The case is Activision TV Inc. v. John Bruning, 8:13-cv-00215, U.S. District Court, District of Nebraska.

For more patent news, click here.

Trademark

Apple Can’t Register ‘App Store’ Mark, Australian Court Rules

Apple Inc., maker of the iPhone and the iPad, can’t register “app store” as a trademark in Australia, the Sydney Morning Herald reported.

The Cupertino, California-based company lost its appeal in Australia’s federal court of the Registrar of Trademarks’ refusal to register the mark, according to the newspaper.

Justice David Yates said Apple failed to establish that “app store” would lead consumers to believe that Apple was the source of the services it offered, according to the Herald.

Because Apple previously did successfully register “appstore” as an Australian trademark, it can bar others from using that term with that particular spelling, the newspaper reported.

India to Seek International Trademark Registration for ‘Khadi’

An Indian organization aimed at protecting that country’s homespun handwoven textile industry is seeking to register the term “khadi” as an international trademark, the Times of India reported.

“Khadi,” which came into popular use after Mahatma Gandhi began spinning cotton cloth as part of the struggle for India’s independence from Britain, has already been used by a German company without authorization, according to the newspaper.

India’s government has approached the Organization for Harmonization in the Internal Markets, the European Union’s trademark authority, to report the alleged infringement, the Times reported.

For more trademark news, click here.

Copyright

American Eagle, Graffiti Artist Settle Copyright Dispute

A copyright dispute between American Eagle Outfitters Inc., a retailer of youth-oriented clothing, and a Miami graffiti artist has settled, according to a Dec. 1 court filing.

David Anasagasti, who works under the pseudonym “Ahol Sniffs Glue,” filed the suit in Manhattan federal court in September, claiming the Pittsburgh-based clothing company had made unauthorized use of an eyeball motif that is a signature of his work.

He said the infringement occurred in window displays, on billboards and in-store displays.

No terms of the settlement were disclosed in the court filing other than each party was to pay its own litigation costs and attorney fees.

The case is Anasagasti v. American Eagle Outfitters Inc., 14-cv-05618, U.S. District Court, Southern District of New York (Manhattan).

Blue Gape Says It’s Undone By FanArt Copyright Issues in India

Blue Gape, a three-year-old Indian company through which members of the public could create customized merchandise, has shut down because of copyright issues, the company said in a statement given to Medianama, an Indian technology news website.

The issue that proved the company’s undoing is what is known as fanart, which Blue Gape characterizes as “the creation of something from the inspiration of somewhere.” Indian copyright law is “very unclear” on the sale of fanart, Blue Gape said.

Under Blue Gape’s business model, the merchandise designed by the public and created by Blue Gape was sold through online retailers including Amazon.com Inc., Flipkart Online Services Pvt. Ltd., and Snapdeal.com.

The online retailers “don’t want to take any risk by retailing fanart on their websites,” Blue Gape said.

When accessed yesterday, Blue Gape’s website -- www.bluegape.com -- had a notice that it was down for maintenance.

For more copyright news, click here.

Trade Secrets/Industrial Espionage

GlobeRanger Seeks Entry of $15 Million Trade Secrets Verdict

GlobeRanger Corp., which was awarded $15 million in a trade secrets case against a SSSS software company, asked a federal court to enter the judgment.

According to a Nov. 28 court filing, on Nov. 20 a jury in federal court in Dallas awarded Richard, Texas-based GlobeRanger $15 million in a case that involved the misappropriation of trade secrets related to radio frequency identification technology.

GlobeRanger, which was acquired by Fujitsu Ltd. May 5, originally filed the suit in Texas state court and moved it to federal court in March 2011. It accused Reston, Virginia’s Software AG of gaining unauthorized access to the GlobeRanger trade secrets, and using them to the Virginia company’s benefit.

The case is GlobeRanger Corp. v. Software AG, 3:11-cv-00403, U.S. District Court, Northern District of Texas (Dallas).

To contact the reporter on this story: Victoria Slind-Flor in San Francisco at vslindflor@bloomberg.net

To contact the editors responsible for this story: Michael Hytha at mhytha@bloomberg.net Joe Schneider, Charles Carter

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