Patent Office, ContraVir, Life360: Intellectual Property

(Bloomberg) -- A U.S. appeals court upheld rules that make it easier for companies like Google Inc. and Apple Inc. to get rid of worrisome patent litigation on the cheap.

The U.S. Court of Appeals for the Federal Circuit, in an appeal involving a patent for a speed-limit indicator, took its first look at reviews by the Patent and Trademark Office. The decision Wednesday may benefit many companies not directly in the case by upholding rules that patent owners say make it too easy to get their legal protections tossed and led a former judge to dub the agency board a “death squad” for patents.

The reviews have become the biggest forum for intellectual property challenges, as statistics show patents are invalidated at a higher rate and at less cost than in district court. While most cases involve computers and other electronics, even drug makers are turning to the agency as a way to speed low-cost medicines to market or avoid paying costly royalties.

More than 2,300 petitions have been filed with the agency since the program -- known as inter partes reviews -- began in 2012 as part of a sweeping overhaul of the U.S. patent system that Congress passed a year earlier. There were 177 petitions filed in December and 102 in November. By comparison, 441 lawsuits were filed in U.S. courts in December and 335 in November, according to Lex Machina statistics.

Lacked Authority

The Federal Circuit, in a 2-1 opinion, said it didn’t have authority to review the agency’s decision to look at any particular case. It also upheld the standard used by the patent office, which makes it easier to invalidate a patent than it is to do in court.

The case considered by the top patent court involved a speed-limit indicator owned by Cuozzo Speed Technologies LLC, which had sued companies including Garmin Ltd., General Motors Co. and TomTom Inc. Garmin was the first to file a review petition after the 2012 change and successfully argued the Cuozzo patent was an obvious variation on earlier inventions.

Cuozzo can ask that the case be reconsidered by all active judges of the court.

The case is In Re Cuozzo Speed Technologies LLC, 14-1301, U.S. Court of Appeals for the Federal Circuit (Washington).

ContraVir Says Patent Covering Hepatitis B Drug to Be Issued

ContraVir Pharmaceuticals Inc., a biotech company focused on the development and commercialization of antiviral therapies, said in a statement that its licensing partner has received notice from the U.S. Patent and Trademark Office that it will be issued a patent on a compound used to treat hepatitis B.

The patent is to be issued to Chimerix Inc., the North Carolina-based biotech company that said Jan. 30 it was discontinuing clinical trials of an experimental drug used to treat Ebola because of a decline in numbers of enrolled patients.

New York-based ContraVir said in its statement that the patent on composition of the hepatitis B drug CMX157 will give the compound patent protection to at least 2031. ContraVir has completed a Phase 1 clinical trial, according to the company website.

Two billion people worldwide have been infected with hepatitis B, and 1 million die every year from the disease and its complications, according to the website of the Doylestown, Pennsylvania-based Hepatitis B Foundation. It’s the world’s most common liver infection, the foundation said.

Patent Office Seeking Public Input in Communication Privilege

The U.S. Patent and Trademark Office, in a notice published in the Federal Register, is requesting public comment on issues related to communications between patent practitioners and their clients.

According to the notice, presently there is “little consistency” in the way courts recognize whether such communications are privileged or not. As a result, some inventors may be reluctant to share critical information because such communication may be subject to disclosure in judicial proceedings.

The office said it is also interested in the state of U.S. law as it affects communications between the patent applicants and their non-U.S. patent practitioners and the extent to which various courts view this communication as privileged.

Some U.S. courts don’t provide protection under these circumstances, while others may employ a variety of tests to determine whether and to what extent to grant privilege, the patent office said.

The office seeks identification of which jurisdictions have potential problems with privilege and the nature of those issues.

The public is invited to submit written comments until Feb. 9 by e-mail or regular mail. A roundtable will be held at the Patent office in Alexandria, Virginia, beginning at 10 a.m. Feb. 18.

Life360 Offers Aid to Other Companies Sued by Patent Owner

Life360 Inc., a mobile application developer based in San Francisco, said it will provide legal support for other small companies sued by Advanced Group Information Systems Inc.

Jupiter, Florida-based AGIS sued Life360 in federal court in West Palm Beach, Florida, in May 2014, accusing the California company of infringing four patents related to mobile-phone communication.

In a Feb. 3 statement, Life360 said that in addition to assisting others who are accused of infringing the disputed patents, it has filed a countersuit in federal court in San Jose, California, accusing AGIS of marking all of its products with its patents regardless of whether the patent contains a claim covering the product.

Life360 said that in November, U.S. District Judge Donald M. Middlebrooks, in a procedure known as a Markman hearing, said some of the claims AGIS has asserted in the patents are too indefinite to be entitled to protection.

The Florida case is Advanced Ground Information Systems Inc. v. Life360, 9:14-cv-80651, U.S. District Court, Southern District of Florida (West Palm Beach). The California case is Life360 Inc. v. Advanced Ground Information Systems Inc., 5:15-cv-00151, U.S. District Court, Northern District of California (San Jose).

For more patent news, click here.

Trademark

Big Ten Files Trademark Suit, Accused Website Disappears

One day after the Big Ten Conference Inc. filed a trademark suit against the operator of Big10Tens.com, the website and its related page on Facebook have disappeared.

The collegiate athletic conference, based in Rosemont, Illinois, and consisting of 14 Midwestern educational institutions, said in its court filing that it objected to the website, and claimed it was “centered on promoting certain social aspects of college life and depicts, among other things, binge drinking, drug use and partial nudity.”

The site had achieved a high level of popularity, the conference said, with 22,000 “likes” on Facebook, more than 100,000 followers on Twitter and 50,000 followers on the Instagram photo-sharing service.

The conference claimed that it sent numerous cease-and-desist letters to the website owner, and that infringing merchandise was sold through the site.

The case is The Big Ten Conference Inc. v. Gazibara, 1:15-cv-01075, U.S. District Court, Norther District of Illinois (Chicago).

For more trademark news, click here.

Copyright

Recipes Merely Factual, Not Protectable, Ohio Court Says

In a dispute between two casual-dining restaurants, a federal court in Ohio ruled that a collection of recipes isn’t entitled to copyright protection.

Tomaydo-Tomahhdo LLC of Cleveland filed the copyright suit in February 2014 after a business partnership ended and the departing partner opened a competing restaurant featuring similar menu items.

George Vozary and Clean Plate Inc. of Lakewood, Ohio, were accused of infringing the copyright to a Tomaydo-Tomahhdo recipe book created in 2012.

U.S. District Judge Patricia Gaughan dismissed the infringement claims saying that any copyright protection the cookbook enjoyed didn’t extend to the recipes themselves. At best, she said, only the layout and “artistic embodiments” contained in the book could get a copyright.

The identification of ingredients is only a compilation of facts, she said, and Tomaydo-Tomahhdo failed to present evidence that the “manner and order” in which the recipes were presented was copied.

She didn’t address other claims, including unfair competition and civil conspiracy, saying they were better dealt with by a state court.

The case is Tomaydo-Tomahhdo LLC v. George Vozary, 1:14-cv-00468, U.S. District Court, Northern District of Ohio (Cleveland).

For more copyright news, click here.

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 David Glovin, Joe Schneider

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