Myriad, Omaha Steaks, Kudelski: Intellectual Property

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(Bloomberg) -- Myriad Genetics Inc. lost its bid to block competing DNA tests to determine risk for breast and ovarian cancer as a U.S. appeals court said three patents on the tests never should have been issued.

The patents cover products of nature that aren’t eligible for legal protection, the U.S. Court of Appeals for the Federal Circuit said in an opinion posted yesterday on its docket. The court upheld a trial judge’s decision to allow the competing tests, including those made by Ambry Genetics Corp., to remain on the market.

The tests check genes known as BRCA to determine whether there’s a hereditary risk of developing the diseases. Myriad was the only company offering the tests until the U.S. Supreme Court last year limited the ability to obtain patents on human genetic sequences. Some patent claims in this case were similar to those invalidated by the high court, a three-judge panel ruled.

“They are structurally identical to the ends of DNA strands found in nature,” U.S. Circuit Judge Timothy Dyk wrote for the panel. “A DNA structure with a function similar to that found in nature can only be patent-eligible as a composition of matter if it has a unique structure, different from anything found in nature.”

Other claims, involving diagnostic methods, “do nothing more than spell out what practitioners already knew -- how to compare gene sequences using routine, ordinary techniques,” Dyk said in the opinion.

Ambry, based in Aliso Viejo, California, and other testing companies have accused Myriad of antitrust violations, claiming it filed the patent suits to prevent competition.

The appeal is University of Utah Research v. Ambry Genetics Corp., 14-1361, U.S. Court of Appeals for the Federal Circuit (Washington).

The Ambry case is University of Utah Research Foundation v. Ambry Genetics, 13-cv-00640, and the combined case is In Re: BRCA1 and BRCA2-based Hereditary Cancer Test Patent Litigation, 14-md-02510, U.S. District Court, District of Utah (Salt Lake City).

Kudelski Unit Patent Case Against Netflix Tossed by Dutch Court

Kudelski SA’s OpenTV unit lost a patent case it brought against Netflix Inc., the streaming video service for watching television shows and movies, PC World reported.

The District Court of the Hague tossed out the suit, finding that the patent at issue was invalid, according to PC World.

OpenTV sought a court order barring Netflix from operating in the Netherlands and demanded a share of the Los Gatos, California-based company’s profits, PC World reported.

For more patent news, click here.


Omaha Steaks Settles Dispute With Interbay Food Over Names

Omaha Steaks International Inc., a Nebraska purveyor of premium beef cuts, settled a trademark dispute with a Seattle meatpacker, according to a Dec. 12 court filing.

The company sued Interbay Food Co LLC in federal court in Omaha, Nebraska, on May 21, objecting to the use of “Omaha Natural Angus,” “Greater Omaha,” and “Omaha Midwest Beef Program” to sell its steaks.

According to court papers, Interbay used this information on its own website and on its listings on Inc.’s Amazon Fresh grocery delivery site. The Nebraska company claimed this infringed its “Omaha Steaks” trademarks.

Terms of the settlement weren’t disclosed in the court filing. The parties were each to pay their own litigation costs and attorney fees.

The case is Omaha Steaks International Inc. v. Interbay Food Co., 14-cv-00154, U.S. District Court, District of Nebraska (Omaha).

Adventist Health Wins Court Ruling on ‘TakeTen’ Registration

Adventist Health System of the West, the operator of health-care facilities in the western U.S., has prevailed in dispute with the U.S. Patent and Trademark Office over the registration of its “TakeTen” trademark.

In a Dec. 16 ruling, the U.S. Court of Appeals for the Federal Circuit said the patent office erred in refusing to register the mark. The office had said the mark was too similar to the “Take 10!” mark belonging to Washington’s ILSI Center for Health Promotion.

Adventist Health’s St. Helena Hospital unit had sought to register “TakeTen” for use with a 10-day residential health improvement program to take place at its in-patient facility in St. Helena, California.

ILSI’s “Take 10!” is used for promotional materials advocating 10 minutes of fitness activity daily, according the appeals court’s opinion.

The court said the evidence doesn’t support the patent office’s Trademark Trial and Appeal Board’s refusal to register the mark, “given the dissimilarities in the respective services and goods and the high degree of consumer care.”

The case is In Re: St. Helena Hospital, 2014-1009, U.S. Court of Appeals for the Federal Circuit.

Mumbai’s Abbott Healthcare to Buy ‘Nervup’ Mark, Settle Dispute

Abbott Healthcare Pvt Ltd. of Mumbai settled a trademark dispute with an Indian pharmaceutical company, India’s Financial Express reported.

The dispute was over the “Nervup” trademark that Jayaar Remedies of Chennai had used since 1986, the newspaper reported.

Abbott will pay Jayaar for the mark, which it plans to use with a drug aimed at the prevention of neural tube defect and vitamin deficiency, Financial Express reported.

For more trademark news, click here.


Finland to Replace Levy on Digital Devices With Government Fund

Finland is setting up a government fund to compensate copyright owners for the private duplication of their material, MusicWeek reported.

The fund will be used instead of a levy on digital devices that can be used for copying, such as iPods, according to MusicWeek.

Veronique Desbrosses, general manager of Finland’s author’s rights society, warned that future cuts in the government budget might mean a decline in the money available in the fund, MusicWeek reported.

She said buyers may still wind up paying the full price for their devices after the present levy is removed, as manufacturers might not pass the savings on to consumers, according to MusicWeek.

For more copyright news, click here.

To contact the reporter on this story: Victoria Slind-Flor in San Francisco at

To contact the editors responsible for this story: Michael Hytha at Charles Carter, Joe Schneider