Patent Infringement | "Pronova Wins Heart-Drug Patent Case Against Teva, Par Pharma"

By : Dow Jones Newswires
Source : http://www.foxbusiness.com
Category : Patent Infringement

A Delaware court has ruled in favor of Pronova BioPharma ASA (PRON.OS, PVNAY), upholding two patents for its heart drug Lovaza against Par Pharmaceutical Cos. (PRX) and Teva Pharmaceutical Industries Ltd. (TEVA, TEVA.TV).
The ruling means Par Pharmaceutical and Teva can't sell generic versions of Lovaza, which lowers very high levels of triglycerides in the bloodstream, at this time. Lovaza is derived from Omega-3 fatty acids.
Shares of Par Pharmaceutical tumbled 7.8% to close at $37.70, while Teva's stock ended off 1.3% at $38.10. Pronova BioPharma's American depositary shares closed 6.3% higher at $5.31.
"Great news for us," said Hamed Brodersen, Pronova's vice president of investor relations.
Shares of Amarin Corp. (AMRN) jumped 6.2% to $12.27. The ruling is good news from a pricing standpoint for the specialty pharmaceutical company as it has its own fatty acid-derived drug currently in development.
In 2009, Pronova alleged patent infringement against Par Pharmaceutical and Teva after they both filed abbreviated new drug applications with the U.S. Food and Drug Administration to bring generic versions of Lovaza to the market to treat very high triglyceride levels. The cases were consolidated.
On Tuesday, the U.S. District Court for the District of Delaware ruled in favor of Pronova BioPharma, saying the company met its burden to prove infringement of two patents.
Generic drug maker Apotex Inc. was part of the lawsuit, but it reached a settlement agreement in March 2011. The settlement granted Apotex a license to enter the U.S. market with a generic version of Lovaza in the first quarter of 2015, or earlier depending on certain circumstances.
GlaxoSmithKline PLC (GSK, GSK.LN) has the marketing rights for the fish-oil-derived treatment in the U.S. In 2011, end-user sales were nearly $950 million for Lovaza in the U.S., according to Pronova, up 7% from the year prior.
Lovaza is the first Omega-3 fatty acid-derived prescription drug approved by the European Union and the FDA.

Source : http://www.foxbusiness.com/news/2012/05/29/pronova-wins-heart-drug-patent-case-against-teva-par-pharma/

Patent Infringement | "The rise of patent lawsuits in the mobile payments arena"

By : Cox Smith
Source : http://www.jdsupra.com
Category : Patent Infringement

Companies large and small are rushing to develop new products and technologies to net their share of the $1 trillion of projected value in mobile payments. But this enthusiasm may be dampened by a number of patent infringement lawsuits in the US directed towards the mobile payments industry, which could limit the very innovation that has defined the industry so far. Erin Fonté and Charles Salmon, of Cox Smith Matthews Incorporated, discuss the trends so far and the moves by the big players looking to limit their liability and expand their patent portfolios in what is set to be a highly lucrative market.

Mobile payments technologies using either near-field communication ('NFC') technology or existing technology (bar codes, QR codes, cloud) may be at an adoption tipping point in the U.S. and abroad. A number of mobile payments products, such as Square (for merchant card processing), and the Starbucks app (for POS purchases at Starbucks locations) have launched within the last few years.Mobile wallet offerings that seek to replace the physical wallet and 'revolutionise' mobile payments have been launched by Google (Google Wallet), ISIS (a consortium of U.S. telecoms, card associations and big banks), and PayPal (PayPal Mobile Wallet). U.K. telecoms sought to follow suit with 'Project Oscar,' a proposed joint venture between TMobile, Orange, O2 and Vodafone, but launch plans for the London 2012 Olympic Games were put on hold and the project is currently under investigation.

Source : http://www.jdsupra.com/post/documentViewer.aspx?fid=41af80f1-a68a-4057-a792-4a81c3bef359

Patent Infringement | "Google Steers Clear From Java Patent Infringement in Android"

By :  Francis Rey
Source : http://socialbarrel.com
Category : Patent Infringement

Google has steered clear from the Java patent infringement case filed by Oracle Corp after the jury were in complete agreement in their verdict that Oracle failed to show incriminating evidence against the use of Java in Google’s mobile operating system, Android.

Oracle’s lawsuit against Google already showed lackluster right after its filing, with long-drawn-out and frequently comic pretrial proceedings, which left petty grounds of Oracle’s case to remain firm on its stand. Even so, the business software giant followed through and invested time and effort at the case, but the jury now has returned verdict that Google is not infringing Java patents in its Android OS as alleged.

Judge William Alsup, the presiding officer who oversees the case, has yet to deliver a ruling on whether APIs of the Java programming language have copyright protection, but US legal precedents hint of a non-copyrightable patent ruling.

Based on Groklaw’s report, the first phase of the trial prevented the jury from making a verdict, as they split nine to three in favor of Google on copyright fair use, with the jury foreman holding out for Oracle for some time while in the Java patent infringement stage. Both firms’ legal teams agreed not to tackle the issue of damages on the third phase.

“Today’s jury verdict that Android does not infringe Oracle’s patents was a victory not just for Google but the entire Android ecosystem,” said Google in a statement.

However, James Gosling – widely recognized as the main man on the development of Java while it was under the roof at Sun Microsystems and before Oracle purchased the company – voiced out sentiments on his preferred verdict.

According to Gosling, the Java patent infringement case “went out with a whimper”, and added, “Court cases are never about right and wrong, they’re about the law and what you can convince a jury of. For those of us at Sun who felt trampled-on and abused by Google’s callous self-righteousness, I would have preferred a different outcome – not from the court case as much as from events of years past.”

As for Oracle’s infamous, hefty damage claims, of which many came up thanks to notional amounts repeatedly revised downwards as if looking for an incontestable amount, the firm will have to prepare itself on whatever potluck the court will give it to pay legal fees. The right to appeal is not deprived from Oracle so it may opt to do that, but at present Google and software developers have found a reason to celebrate.

Source : http://socialbarrel.com/google-steers-clear-from-java-patent-infringement-in-android/37944/

Patent Infringement | "Zuckerberg has plenty to prove with IPO"

By: Brian Womack and Lee Spears
Source: http://www.winnipegfreepress.com
Category: Patent Infringement

FACEBOOK'S $11.8-billion initial public offering will cement the status of 27-year-old Mark Zuckerberg as one of the world's richest men and put his social network among America's highest-valued companies.

Facebook is offering about 337.4 million shares for $28 to $35 each, according to a regulatory filing Thursday. At the upper end of that range, the co-founder's stake would be $17.6 billion, making him richer than Microsoft's Steve Ballmer and Russian steel billionaire Vladimir Lisin, who are both twice his age, according to the Bloomberg Billionaires Index.

Zuckerberg, who began the service at 19 for Harvard classmates in his dorm, built Facebook into the world's most popular social-networking site, topping 900 million users last quarter. Now he must prove he has the leadership skills to deliver enough growth to justify the company's valuation, said Paul Saffo, managing director at Discern Analytics in San Francisco.

"The whole story about the Silicon Valley is hard-working, entrepreneurial tech geeks getting big payoffs," said Saffo, whose firm provides analytics to institutional investors. "The challenge he has is: Can Mark grow as quickly as his company has grown? And can Mark grow faster than his company has grown? Because, of course, that's what a leader must do."

Zuckerberg, who has a reputation for introducing new products quickly, helped the company supplant MySpace as the most popular social service while also navigating competitive threats from Google, Twitter and other social-media sites. The company has expanded its appeal by enabling developers to build applications on top of the platform, offering music, movies, e-commerce options and other extras to users.

"They stayed nimble, like a startup of a smaller size," said Jeremiah Owyang, an analyst at Altimeter Group. "The culture encouraged them to experiment and innovate on a regular basis, even when they had the lead."

Facebook's IPO would value the company at as much as $96 billion. It is offering 180 million of the shares, while existing owners such as Accel Partners and Digital Sky Technologies are offering 157.4 million shares, according to the filing. Zuckerberg is offering 30.2 million of his 533.8 million shares. The majority of his net proceeds will be used to pay taxes associated with exercising a stock option.

He may control about 57 per cent of the voting power of Facebook's outstanding capital stock after the offering, according to the filing.

Zuckerberg has shown patience in bringing Facebook to the brink of an IPO. After starting the company in 2004, he rolled it out to other college campuses, reaching one million users by the end of the year. Zuckerberg also received a key investment from Peter Thiel, who made much of his wealth as a co-founder of online-payments service PayPal, later sold to eBay.

In 2006, Zuckerberg opened up the service so anyone could join. Facebook accumulated 12 million users by year's end. Zuckerberg was able to woo other investors, including software company Microsoft, Accel and Russian investor Digital Sky, to handle the growing user base.

Facebook, while preparing for the IPO, has remained active on other fronts. After being sued by Yahoo in March for patent infringement, the company has been looking to buy intellectual property from other owners.

Source: http://www.winnipegfreepress.com/business/zuckerberg-has-plenty-to-prove-with-ipo-150274725.html

Patent Infringement | "Judge may accept partial verdict in Google-Oracle case "

By: Naina Khedekar
Source: http://tech2.in.com
Category: Patent Infringement

Oracle has sued Google in a federal court, claiming that the latter’s Android mobile platform violated its patents and copyright to Java. Oracle had accused Google of violating the copyright on parts of the Java programming language, in a trial over smartphone technology involving about $1 billion. News has it that the jury in the Oracle-Google case has ruled on three out of four questions it must answer. However, no verdict has been delivered, so far as the jurors have been sent back by the judge to deliberate on the issue that is unresolved. Reportedly, the copyright portion of the trial has ended and apparently Jurors told the Judge, William Alsup, that they have reached a decision on all questions, but one. A court hearing was held wherein Alsup and the lawyers on both sides were involved in a discussion of partial verdict and moving on to patent portion of the case. However, the judge told the jury to work on the copyright questions, as per a ZDNet report.

One more legal battle for the books

One more legal battle....

Three questions are consequential, because the fourth question was asked for advisory purposes. However, the fourth question that has been the cause of holding things up hasn’t been revealed yet. The jury has been ruling on Google violating the law by using 37 java API packages, infringement of Java packages by Google, and violations involving source code. The next hearing is on Monday and even if the jury is deadlocked, we may hear a partial verdict, so that the trial can move on.


Basically, the judge may accept a partial verdict in case the jury can’t agree on all four verdict questions relating to Google stealing Oracle’s technology for its Android software or whether it didn’t require a license at all. Reportedly, Alsup said, “I’m going to receive a partial verdict. I’m not going to let this work go to waste.”

Source: http://tech2.in.com/news/general/judge-may-accept-partial-verdict-in-google-oracle-case/304012

Patent Infringement | "Bayer challenges Nexavar generic license order in India"

By: Kaustubh Kulkarni
Source: http://www.moneycontrol.com
Category: Patent Infringement

(Reuters) - Drugmaker Bayer said on Saturday it had challenged an Indian patents office order that allowed domestic rival Natco Pharma to sell a cheap generic version of the German firm's liver and kidney cancer drug Nexavar in India.

In March, the patents office stripped Bayer of its exclusive rights to sell Nexavar, saying most Indians could not afford it.

It told Natco Pharma to sell the generic drug significantly more cheaply and pay Bayer a 6 percent royalty on sales.

Bayer said it had appealed against the ruling. "We will rigorously continue to defend our intellectual property rights, which are a prerequisite for bringing innovative medicines to patients," a company spokesman said.

India's decision on Nexavar was seen as a precedent that could extend to other treatments, including modern HIV/AIDS drugs, in a major blow to global pharmaceutical firms.

Separately, Bayer is suing another Indian drugmaker, Cipla, for patent infringement over Nexavar. Cipla has been selling generic Nexavar in India and it has slashed the price of the drug by 75 percent to 6,840 Indian rupees a month.

Source: http://www.moneycontrol.com/news/wire-news/bayer-challenges-nexavar-generic-license-orderindia_700872.html

Patent Infringement | "Apple, Samsung Ordered to Trim Back Patent Lawsuits News"

By: Jeff Gamet
Source: http://www.macobserver.com
Category: Patent Infringement

Judge Lucy Koh has ordered Apple and Samsung to scale back the number of claims in their patent infringement lawsuits, and warned both sides that failing to do so could delay their trial until some time in 2013. As of now, their patent infringement trial is scheduled for July 30 of this year.

Apple and Samsung ordered to trim down their patent infringement claims before trialWith some 37 products listed in the lawsuits, along with 16 patents, five trademarks and an antitrust claim, Judge Koh told both companies that a jury shouldn’t have to deal with this, according to Computerworld.

“I think that’s cruel and unusual punishment to a jury, so I’m not willing to do it,” she said. “If you’re going to trial in July, this is not going to be acceptable.”

Apple and Samsung are both claiming the other company is refusing to cooperate in reducing the number of claims in the case, and Apple told the court that while it wants the trial to stay on schedule, Samsung doesn’t.

Apple and Samsung have been involved in a months-long patent infringement battle in courts around the world over allegations that each side is using mobile patents without proper licensing. At one point Apple’s attorneys claimed in court that Samsung has been “slavishly” copying the iPhone and iPad designs.

The two companies are scheduled to discuss a possible out of court settlement later this month at the urging of Judge Koh. The CEOs from Apple and Samsung will be involved in the negotiations, although there isn’t any guarantee they will reach an agreement.

Assuming the talks fall apart, Apple’s legal team assured the court it wants to keep the trial on schedule. “We will do whatever we need to do to hold the trial date,” said Apple lawyer Harold McElhinny.

Judge Koh also set a tentative trial date of March 31, 2014 for another lawsuit where Apple is suing Samsung for patent infringement.

Source: http://www.macobserver.com/tmo/article/apple_samsung_ordered_to_trim_back_patent_lawsuits/

Patent Infringement | "Yahoo says Facebook data centers may infringe on its patents"

By: LA Times
Source: http://www.latimes.com
Category: Patent Infringement

Yahoo has warned Facebook that the social networking giant may be infringing on 16 more of its patents.

Yahoo sent a letter to Facebook last month alleging that the patents “may be relevant” to technology Facebook uses in its servers and data centers, Facebook disclosed in a regulatory filing Thursday. Facebook has data centers in Oregon and North Carolina. It developed its own servers to power those data centers.

Facebook said Yahoo had not threatened a lawsuit but had said "it may do so in the future."

The move could be a precursor to declaring a patent war on companies that use open-source software to power data centers.

"Yahoo's letter takes aim not just at Facebook but at open-source and energy-efficient green technologies developed and employed by countless innovative, forward-thinking companies and engineers," Facebook said in an emailed statement. "We're defending vigorously against Yahoo's current lawsuit, and would likewise do so against any new assertions."

A Yahoo spokesman could not be reached for comment.

Yahoo sued Facebook in March, alleging that the company was infringing on 10 of its patents. Facebook countersued, asserting that Yahoo was infringing on 10 of its patents. Yahoo then countered that Facebook was trampling on two additional Yahoo patents.

Yahoo hired Scott Thompson as its chief executive in January to turn around the beleaguered Internet company.

Facebook has bought hundreds of patents from IBM and from AOL (via Microsoft) to defend itself against a rising tide of patent infringement lawsuits. The IBM patents were related to data center operations.

Source: http://www.latimes.com/business/technology/la-fi-tn-yahoo-tells-facebook-its-data-centers-may-infringe-on-patents-20120503,0,6929838.story

Patent Infringement "Microsoft Xbox faces potential ban over Motorola patent infringement"

By: Christopher Williams
Source: http://www.telegraph.co.uk
Category: Patent Infringement

A court in Mannheim, Germany, found Microsoft had infringed two Motorola patents dating back to the early 1990s and relating to the H.264 compression standard. They describe a way of reducing the size of video files that is used very widely, including by YouTube and on Blu-ray discs.

The decision follows a ruling last week by the International Trade Commission, a United States authority, which also found Microsoft’s Xbox 360 infringed Motorola’s patents.

The dispute came to court in Europe after Motorola demanded licence fees on terms that Microsoft said were unfair and would cost at least $4bn annually. Because H.264 is a standard technology, patents relating to it are covered by Frand rules, which compel the owners of patents to licence them to competitors on a “fair and reasonable” basis.

According to Florian Mueller, a leading commentator on technology patent litigation, Motorola expected Microsoft to reject its licensing offer.

“Microsoft obviously didn't accept those terms, and Motorola didn't even genuinely expect it to,” he said on his blog.

Source: http://www.telegraph.co.uk/technology/microsoft/9240650/Microsoft-Xbox-faces-potential-ban-over-Motorola-patent-claim.html

Patent Infringement | "Kodak wants to restart patent infringement suit against Shutterfly"

By: MATTHEW DANEMAN
Source: http://www.democratandchronicle.com
Category: Patent Infringement

Saying a favorable court ruling could represent a windfall of $100 million or more, Eastman Kodak Co. is trying to restart a patent infringement lawsuit put on hold by its Chapter 11 bankruptcy.

U.S. bankruptcy law provides for an automatic stay when a party such as a company files for bankruptcy. That automatic stay is a layer of protection against creditors, halting judicial proceedings such as lawsuits.

But Kodak has filed a motion in U.S. Bankruptcy Court asking for a modification of the automatic stay so that a lawsuit it has against online photo album company Shutterfly Inc. and personalized card printer Tiny Prints Inc. could go forward.

Kodak sued Shutterfly in 2010, alleging it was using Kodak-patented technology in its operations. The case was amended in 2011 to add Shutterfly’s newly purchased Tiny Prints and a sixth patent in question. Until Kodak filed for bankruptcy on Jan. 19, the patent infringement claims were scheduled to go to trial in 2013.

In its motion, Kodak calls it “a rare instance where ... the debtors themselves seek modification of the automatic stay.”

Shutterfly and Kodak have a tangled business relationship. Shutterfly sued Kodak in 2011, alleging Kodak was itself infringing on seven different Shutterfly patents. That case also is stayed by Kodak’s bankruptcy.

Meanwhile, as part of the restructuring Kodak is going through in Chapter 11, the company is selling its Kodak Gallery operation to Shutterfly for $23.8 million.

A hearing on the lawsuit motion is scheduled for May 10 before Judge Allan Gropper in New York City.

Source: http://www.democratandchronicle.com/article/20120503/BUSINESS/305030028/Kodak-Shutterfly-patent-infringement-bankruptcy

Patent Infringement | "United States: Res Judicata Does Not Bar Patent Infringement Litigation Where The Accused Devices Did Not Exist At The Outset Of The Prior Litigation"

By:Jeffrey D. Smyth 
source:http://www.mondaq.com
Category:Patent Infringement

In Aspex Eyewear, Inc. v. Marchon Eyewear, Inc., No. 11-1147 (Fed. Cir. Mar. 14, 2012), the Federal Circuit reversed the district court's grant of SJ in favor of the defendants premised on res judicata and remanded for further proceedings.

Aspex Eyewear, Inc. ("Aspex") and the codefendants, Marchon Eyewear, Inc. ("Marchon") and Revolution Eyewear, Inc. ("Revolution"), have been engaged in patent litigation off and on for the past decade. Aspex is the owner of U.S. Patent No. RE 37,545 ("the '545 patent") titled "Auxiliary Lenses for Eyeglasses." The '545 patent discloses eyeglass frames designed to allow auxiliary frames (often containing sunglass lenses) to magnetically attach. Revolution is a manufacturer of eyeglass frames that employ magnets for the purpose of attaching auxiliary frames to the primary frames. Marchon sells primary and auxiliary frames pursuant to a license obtained from Revolution.

In an earlier iteration of this litigation, a jury awarded over $4 million in damages to Aspex for Revolution's infringement of the '545 patent. In late 2006, during the pendency of that earlier action, Aspex also sued Marchon, alleging infringement of the '545 patent based on the same accused devices. In 2007, Revolution redesigned its frames and ceased manufacturing or distributing frames according to the old design. In 2008, Aspex and Marchon entered into a settlement agreement resolving all of the claims asserted in the 2006 action.

In April 2008, the PTO concluded an ex parte reexamination of the '545 patent, confirming the patentability of claim 23 as amended and allowing Aspex to add claim 35. In 2009, Aspex filed the present action, charging Marchon, Revolution, and several other defendants with infringement of claims 23 and 35, accusing the redesigned frames.

Revolution moved to dismiss the action as barred by the doctrine of res judicata in light of its previous litigation with Aspex. Marchon also moved to dismiss the action based on res judicata, and alternatively, based on the terms of its 2008 settlement agreement with Aspex. The district court granted SJ in favor of all of the defendants, finding that Aspex's claims in the present action were identical to the claims that either were, or could have been, raised in the earlier litigation activities. The district court further held that the settlement agreement alternatively barred Aspex's current claim against Marchon.

On appeal, Aspex argued that the district court improperly barred its claims because, due to the reexamination amendments, claims 23 and 35 were not in existence at the time of the prior litigation against the defendants and thus could not have been pursued at that time. The Federal Circuit disagreed, explaining that reexamination of the '545 patent did not create new causes of action separate from the causes of action created by the original patent. Rather, the two claims were merely new versions of claims that were part of the '545 patent prior to reexamination. The Court further agreed with the district court's finding that any changes to the claims were insubstantial and at most narrowed the scope of the claims in respects not affecting the products at issue. Finally, the Court pointed out Aspex's flawed reliance on cases involving reissue patents, drawing several distinctions between the two distinct PTO proceedings.

"...[R]es judicata does not bar Aspex's lawsuit with respect to accused products that were not in existence at the time of the California Actions for the simple reason that res judicata requires that in order for a particular claim to be barred, it is necessary that the claim either was asserted, or could have been asserted, in the prior action." Slip op. at 12.

Despite rejecting Aspex's primary argument, the Court found Aspex's secondary argument persuasive. Both Revolution and Marchon argued that res judicata was appropriate in this instance because the accused products at issue in the present case are "essentially the same" as the products accused in the earlier litigation. The Court rejected this argument, finding that res judicata did not bar the present lawsuit with respect to products that were not in existence at the time of the earlier litigation "for the simple reason that in order for a particular claim to be barred, it is necessary that the claim either was asserted, or could have been asserted, in the prior action." Slip op. at 12. "If the claim did not exist at the time of the earlier action, it could not have been asserted in that action and is not barred by res judicata." Id. The Court noted that it has regularly applied this principle to patent cases, particularly in cases involving sequential acts of infringement. The Court held that res judicata did not apply here, because Aspex accused products were made and sold only after the earlier litigation commenced.

In rejecting the defendant's arguments on this secondary point, the Court noted that the main case relied on by Revolution and Marchon effectively applied the doctrine of collateral estoppel, not res judicata. The Court noted that collateral estoppel doctrine may be applicable to the present case, but that since neither party had the opportunity to brief it, the district court needed to address it on remand. The Court also noted that the district court needed to determine whether Aspex and Revolution consented to have the court in the prior litigation adjudicate their rights as to the products created during the pendency of that case.

The third issue addressed by the Court was whether Marchon's SJ motion was properly granted in light of the 2008 settlement agreement. After reviewing the terms of the agreement, the Court concluded that the motion was improperly granted and that the terms of the settlement agreement did not expressly encompass the newly designed products. The Court reasoned that when parties decide to depart from the normal rule that the products at issue in a patent infringement case are those in existence at the time the suit was filed, the departure "must be express" in the terms of the agreement. Slip op. at 20. The Court found that not only did the agreement fail to expressly include the newly designed products, but several of the terms of the agreement suggested to the contrary that the focus of the agreement was solely on products manufactured according to the old design. Thus, the Court concluded that the settlement agreement did not bar Aspex's claims in the present litigation.

Finally, the Court considered the proper claim construction of the claims of the '545 patent. The Court noted that although it was not compelled to review the district court's claim construction during these proceedings, because there was no judgment of noninfringment, it would do so anyway to conserve judicial resources.

With respect to the first disputed term, the Court held that the term "eyeglass device" found in the preamble of the independent claims should not be construed to add a limitation to any of the claims, but should instead be interpreted as generally referring to the combination of a primary and auxiliary frame. The Court noted that, generally, preamble language is not treated as limiting, and in this case the defendants had not adequately justified a departure from the general rule.

The Court next construed the term "magnetic member." Aspex argued that the term should not only include permanent magnets, but also ferromagnetic substances, which are affected by magnetic fields. The Court agreed with Aspex, finding its argument based on claim differentiation persuasive. Specifically, the Court found that claim 35, a dependant claim of claim 23, added the limitation that the "magnetic members of the auxiliary spectacle frame are magnets." The Court found that the claims would be entirely duplicative, should it adopt the defendants' proposed construction.

The Court next considered the term "rearwardly directed free end," and again agreed with Aspex, holding that the district court's construction effectively wrote the term "free" out of the limitation. The Court noted that although the patent specification does not use the term "free" when describing the rearwardly directed end portion, the figures clearly illustrate that each arm has a free end.

Finally, the Court construed the term "said arms and said pair of magnetic members adapted to extend across respective side portions of a primary spectacle frame." Aspex primarily challenged the district court's construction as related to the term "adapted to." Aspex argued that the phrase "adapted to" should be interpreted to mean "suitable for" rather than "made to." The Court rejected the plaintiff's contentions, recognizing that the phrase "adapted to" is sometimes used in accordance with this broader definition, but that in this case the narrower interpretation is appropriate.

The Court reasoned that in the context of the '545 patent, the language of the claim itself is "most naturally" understood to mean that the arms and magnetic members are designed or configured to accomplish the specified objective. Further lending support to this interpretation,claim 22 used the phrase "capable of engaging" in relation to magnetic members. The Court found that the use of different terminology in adjacent claims suggests that the narrower interpretation is appropriate.

In sum, having reversed the district court's grant of SJ on the basis of res judicata, the Court remanded the case for further proceedings consistent with its opinion.

Source: http://www.mondaq.com/unitedstates/x/175700/Intellectual+Property/Res+Judicata+Does+Not+Bar+Patent+Infringement+Litigation+Where+The+Accused+Devices+Did+Not+Exist+At+The+Outset+Of+The+Prior+Litigation

Patent Infringement | "Judicial Panel on Multidistrict Litigation: AIA Does Not Preclude Consolidated Cases"

By:Jennifer Furey
source:http://www.patentlyo.com
Category:Patent Infringement

Suppose a patentee determines that in order to enforce its patent rights, it must sue multiple, but unrelated, parties. An obstacle then presents itself. The patentee plaintiff may very well be forced to file separate actions in disparate jurisdictions, and now risks being overwhelmed by conflicting case schedules, duplicative discovery disputes, and especially, conflicting Markman claim construction rulings. See Scott W. Burt et al., Intellectual Property Owners Associations Committee White Paper, Impact of the Misjoinder Provision of the America Invents Act 16 (2012). One mechanism for efficiently litigating the pre-trial phase of patent infringement lawsuits pending in different districts is multidistrict litigation ("MDL") under 28 U.S.C. § 1407 ("Section 1407"). In a recent opinion in In re Bear Creek Technologies, Inc., the Judicial Panel on Multidistrict Litigation ("JPML") unequivocally held that MDL remains a viable option for parties to transfer separate patent infringement actions pending in different districts for centralized pre-trial proceedings, and that the recently enacted Leahy-Smith America Invents Act ("AIA") "does not affect [the JPML's] authority" to transfer and centralize patent litigation under Section 1407. MDL No. 2344, at 3 (J.P.M.L. May 2, 2012). After Bear Creek, plaintiffs enforcing their patent rights across multiple jurisdictions may still consider MDL as a possible option to keep infringing defendants before one court up until trial. [Download JMPL Decision Bear Creek]

Enacted on September 16, 2011, the AIA's joinder provision states that accused infringers may not, "based solely on allegations that they each have infringed" the same patent(s):

    be joined in one action as defendants or counterclaim defendants, or
    have their actions consolidated for trial.

35 U.S.C. § 299. In contrast, centralization in MDL under Section 1407 requires that:

    actions are pending in different districts;
    the actions involve "one or more common questions of fact;" and
    transfer and consolidation of pretrial proceedings is convenient for the parties and witnesses, and promotes "the just and efficient conduct of such actions."

28 U.S.C. § 1407.

After the enactment of the AIA, Vonage in Bear Creek argued that the AIA's joinder restriction applied to Section 1407, to no avail. The JPML found the AIA "does not alter [its] authority to order pretrial centralization." MDL No. 2344 at 2. The JPML reasoned that there was "no overlap" between the AIA and Section 1407, emphasizing the different standards of the two statutes, and contrasting the AIA's focus on joinder and consolidation at trial with "Section 1407's express focus on transfer for pretrial proceedings." Id. at 2-3. Finding that both the plain language and legislative history of the AIA were "silent as to the conduct of pretrial proceedings" and did not "mention Section 1407," the JPML noted that if Congress intended the AIA to limit the JPML's authority under Section 1407, it would have "done so explicitly." Id.

After holding that the AIA did not apply, the JPML then concluded that transfer and centralization was appropriate in Bear Creek because the separate actions shared "substantial background questions of fact" concerning the "validity and enforceability" of the patent-in-suit, as well as "claim construction." Id. at 4. The JPML emphasized that "centralization offers substantial savings in terms of judicial economy by having a single judge become acquainted with the complex patented technology and construing the patent in a consistent fashion (as opposed to having six judges separately decide such issues)."

In light of the AIA's enactment, MDL can be an invaluable tool for patentee-plaintiffs to efficiently litigate their patent rights against multiple infringers with actions pending in different courts through Markman and summary judgment. Under Bear Creek, the AIA is not a magic bullet allowing patent defendants to escape multi-party litigation—they may be brought before one court up until trial in MDL under Section 1407.

Source: http://www.patentlyo.com/patent/2012/05/judicial-panel-on-multidistrict-litigation-aia-does-not-preclude-consolidated-cases.html

Patent Infringement | "Nokia sues HTC, RIM and Viewsonic for patent infringement"

By:Lee Bell
source:http://www.theinquirer.net
Category:Patent Infringement

FINNISH PHONE MAKER Nokia has filed a number of lawsuits in the US and Germany claiming that smartphone makers HTC, RIM and Viewsonic have infringed several of its patents.

Nokia issued a statement on its web site today saying that although it would "prefer to avoid litigation", it had to file these actions "to end the unauthorised use of our proprietary innovations and technologies, which have not been widely licensed".

Nokia said its rivals have infringed 45 patents in total, dealt with across various lawsuits covering what it says are "proprietary innovations", that is, hardware features like antennas, radios, and power management.

Software features such as multitasking, navigation, app stores, retrieving email attachments on a mobile phone, conversational message display, dynamic menus, and certain types of data encryption are also covered by its patents.

Nokia's actions include a complaint to the US International Trade Commission (ITC) against HTC, as well as lawsuits against HTC and Viewsonic in Delaware US District Court and against HTC and RIM in the Regional Court in Dusseldorf, Germany and against all three companies in the Regional Courts in Mannheim and Munich, Germany. It's certainly not doing things by half.

Nokia's chief legal officer Louise Pentland said in a company statement, "Many of these inventions are fundamental to Nokia products. We'd rather that other companies respect our intellectual property and compete using their own innovations, but as these actions show, we will not tolerate the unauthorised use of our inventions."

It emerged on Monday that Nokia makes more money from licensing its patents to Apple than it does selling Lumia phones. However, the news that Nokia is suing its rivals differs slightly from the firm's now-settled litigation with Apple, which involved several standards related patents that were required to be licensed under so-called 'FRAND' guidelines.

Perhaps Nokia is jumping on the "we'll take you to court because we can" lawsuit bandwagon for publicity reasons. Either that, or because it genuinely needs the damages it might win. Judging by its financial figures for the first quarter that reported a €1.34bn loss, the latter wouldn't surprise us.

Source: http://www.theinquirer.net/inquirer/news/2172098/nokia-sues-htc-rim-viewsonic-patent-infringement

Patent Infringement | "Nokia, Motorola Mobility, Stichting BDO: Intellectual Property"

By: Victoria Slind
source: http://www.bloomberg.com
Category: Patent Infringement

Nokia Oyj (NOK1V) said it filed lawsuits against HTC Corp., Research in Motion Ltd. and ViewSonic Corp. in the U.S. and Germany patent- infringement over inventions in mobile devices including phones and tablets.

One complaint was filed against HTC at the U.S. International Trade Commission in Washington, which has the power to block imports of products that infringe U.S. patents. HTC and ViewSonic were sued in federal court in Wilmington, Delaware, while all three companies were named in German lawsuits. Nokia said in a statement it claims infringement of 45 patents in all.

Nokia, which lost its 14-year title as world’s biggest seller of mobile phones last year to Samsung Electronics Co., is trying to expand revenue from its patent portfolio. The company’s royalty income is on pace to reach 500 million euros ($658 million) a year, Chief Financial Officer Timo Ihamuotila said last month.

Six of the patents asserted in the new round of litigation were also part of a global fight Nokia waged with iPhone maker Apple Inc., (AAPL) said Mark Durrant, a spokesman for Nokia. The two companies settled their dispute a year ago, with Apple agreeing to a one-time payment and royalties.

The patents in the new round of litigation cover hardware inventions for dual-function antennas, power management and multimode radios, and software features including application stores, multitasking, navigation, conversational message display, dynamic menus, data encryption and retrieval of e-mail attachments on a mobile device.

Nokia has linked up with Microsoft Corp. (MSFT) to make Lumia smartphones that run on the Windows Phone platform, which competes with Google Inc.’s Android operating system. HTC, based in Taoyuan, Taiwan, makes phones for both Android and Windows Phone. The suits in Delaware target the HTC (2498) Flyer tablet and a range of smartphones including the HTC Sensation 4G, Vivid, and Inspire 4G.

HTC and Nokia have been partners in fighting patent- infringement claims by IPCom GmbH, a licensing company that obtained mobile-phone patents from Robert Bosch GmbH in 2007.

RIM, based in Waterloo, Ontario, developed its own operating system for its BlackBerry phones. Marisa Conway, a spokeswoman for RIM, said the company doesn’t comment on litigation.

ViewSonic, based in Walnut, California, makes tablet computers that run on Android. In the case against ViewSonic in Mannheim, Germany, Nokia claims infringement of four patents that relate to industry standards on 3G and Wi-Fi technology, Durrant said. None of the others are for inventions that are essential components of standards.

Officials with HTC and ViewSonic didn’t immediately return messages seeking comment.
Motorola Mobility Wins German Ruling on Microsoft Windows, Xbox

Motorola Mobility Holdings Inc. (MMI) won a patent ruling allowing it to ban Microsoft Corp. from selling its Windows products or Xbox gaming systems in Germany.

In a case that prompted Microsoft to move its European logistics center to the Netherlands from Germany, the Mannheim Regional Court found the company violated patents related to industry standards for video compression. Last month, a U.S. court ordered Motorola Mobility not to enforce a ban if it won yesterday’s ruling while a related dispute in Seattle is pending.

The suit is part of a wave of global patent litigation as companies seek a greater share of smartphone and handheld device sales. The total market for mobile devices, which includes tablet computers and e-readers, is projected to reach $360 billion this year, according to Carl Howe, an analyst with Boston-based advisory firm Yankee Group.

Last month, Redmond, Washington-based Microsoft, the world’s largest software maker, said it was moving its European logistics center to the Netherlands from Germany because of the patent fight. The German unit is the central distribution point for software and other Microsoft products in Europe, so the adverse German ruling may have threatened deliveries through much of the continent.

Motorola Mobility, a Libertyville, Illinois-based phone maker, is being acquired by Google Inc. (GOOG), the maker of Android software.
Rovi Sues Mitsubishi Electric Over TV Program Guide Patents

Rovi Corp. (ROVI), a provider of digital entertainment guides, sued three television makers claiming infringement of patents for its technology and parental-control chips that block television content.

Rovi argues that Mitsubishi Electric Corp., LG Electronics Inc. (066570) and Vizio Inc., the first American brand in over a decade to lead in LCD high-definition TV sales in the U.S., misappropriated its on-screen guides that allow users to browse channel listing and upcoming shows, according to a complaint filed May 1 in federal court in Wilmington, Delaware.

The companies’ alleged infringement “presents significant and ongoing damages to Rovi’s business,” lawyers for the Santa Clara, California-based company said in court papers. “Rovi’s long-term financial success depends on its ability to establish, maintain, and protect its proprietary technology through enforcement of its patent rights.”

Rovi contends that Tokyo-based Mitsubishi Electric is violating three of its patents, according to court documents. Two patents cover viewing the TV program schedule and “on- demand” content. Another patent involves “V-chip” technology that restricts access to certain shows or networks deemed inappropriate.

The company argues that LG, based in Seoul, Korea, is infringing five patents including three of the four asserted against Irvine, California-based Vizio.

Rovi also filed a U.S. International Trade Commission complaint yesterday against the three companies as well as Netflix Inc. and Roku Inc. alleging infringement of as many as seven patents.

Mark Scott, a spokesman for Mitsubishi Electric U.S., declined to comment on the lawsuit. Jim Noyd, a spokesman for Vizio, and John Taylor, a spokesman for LG, weren’t immediately available to respond to phone calls seeking comment.

Rovi is asking for jury trials and unspecified damages based on the companies’ importation or sales of television sets, according to court papers. The company said in the complaint that any damages awarded should be tripled, claiming the infringement was “willful and deliberate.”

The cases are Rovi v. Mitsubishi Electric Corp. (6503), 12-cv- 547); Rovi v. LG Electronics Inc., 12-cv-545; Rovi v. Vizio Inc., 12-cv-546, all U.S. District Court, District of Delaware (Wilmington). The ITC case is In the Matter of Certain Products Containing Interactive Program Guide and Parental Control Technology, Complaint No. 2894, U.S. International Trade Commission (Washington).

For more patent news, click here.
Trademark
Stichting BDO’s Trademark Challenge to Philippines Bank Rejected

Stichting BDO, the Netherlands-based accounting firm, has lost a trademark challenge to the Banco de Oro Unibank in the Philippines, the Philippine Daily Inquirer reported.

The Mandaluyong court said the bank was the first to use the “BDO” trademark, and there was no intent on the bank’s part to deceive the market, according to the newspaper.

The accounting firm filed the infringement claim in 2009, saying it had used the mark since 2004, the Inquirer reported.

The court said the Philippines’ Intellectual Property Office has also now canceled the Dutch company’s registration for the “BDO” trademark, according to the Inquirer.
China’s Trademark Registry System Often Causes Outsiders Grief

Waitrose Ltd., Wal-Mart Stores Inc. (WMT)’s Asda unit, and J Sainsbury Plc (SBRY) are among the U.K. companies whose names were registered in China without their consent by unrelated entities, the U.K.’s Telegraph newspaper reported.

In China, whoever registers the mark first has the right to use it, according to the newspaper.

Fights by non-Chinese companies to regain the rights to their name are seldom successful, trademark lawyers told the Telegraph.

Many companies have been forced into doing business in China under a new brand, the Telegraph reported.

For more trademark news, click here.
Copyright
Software Copyright Allows Reverse Engineering, EU Court Says

Software companies can’t rely on copyright rules to prevent rivals from “reverse engineering” computer programs, the European Union’s highest court ruled.

SAS Institute Inc., the world’s biggest closely held software company, lost a bid at the EU Court of Justice to extend copyright protection to the functions of a computer program. World Programming Ltd. infringed SAS’s copyright by developing a system that copied the company’s manuals, SAS said at a September hearing.

Copyright protection doesn’t extend to the functionality of a computer program or the programming language and the format of a program’s data files, according to a statement from the court yesterday.

“There is no copyright infringement” when a software company without access to a program’s source code “studied, observed and tested that program in order to reproduce its functionality in a second program,” the court said in the statement.

SAS, based in Cary, North Carolina, is an independent maker of so-called business intelligence programs, which spot patterns amid vast stores of data. WPL, based in Romsey, England, makes a software product that analyzes and processes data.

It’s the first time the EU’s top court has been asked to define the scope of copyright protection for computer software. The High Court in London in 2010 referred the case to the EU tribunal for guidance on how to interpret the region’s software and copyright laws. The court said WPL’s system didn’t breach SAS’s copyright.

Calls and e-mails to SAS offices in North Carolina and England weren’t immediately answered before U.S. business hours. WPL didn’t immediately respond to an e-mail seeking comment.

The ruling means “that competitive and interoperable computer programs can continue to be developed without threat of legal liability,” said Thomas Vinje, a spokesman for the European Committee for Interoperable Systems, a group representing International Business Machines Corp., Oracle Corp. and other software developers.

The case is C-406/10, SAS Institute Inc. v. World Programming Ltd.

Source: http://www.bloomberg.com/news/2012-05-03/nokia-motorola-mobility-stichting-bdo-intellectual-property.html

Patent Infringement | "Microsoft granted patent for wearable EMG device"

By : Sarah Silbert
Source : http://www.engadget.com
Category : Patent Infringement

Those muscle spasms? They're now good for something. Okay, so Microsoft's just-granted patent for a wearable EMG device doesn't really thrive off of involuntary twitching and such, but it does use your movements to control your smartphone, notebook and other gadgets. The "Wearable Electromyography-Based Controller," which we first glimpsed back in 2010, uses sensors to interpret the electrical signals generated by a user's muscles, and then communicates with the wearer's computer via a wireless (or wired) connection. Redmond envisions the wearable device in various incarnations: as an armband equipped with sensors, a shirt, eyeglasses and even nodes attached directly to the user's body. In the armband example, motion control could be used to interact with a PMP while the user is jogging. No matter the setup, a calibration process allows the system to locate specific sensors and collect information based on specific gestures or movements, which means playing Guitar Hero with only an air guitar may someday be a reality after all.

Source : http://www.engadget.com/2012/05/02/microsoft-patent-wearable-emg-device/

Patent Infringement | "Inovio granted US patent protection for cervical dysplasia/cancer vaccine "

By : Brad Lemaire
Source : http://www.proactiveinvestors.co.uk
Category : Patent Infringement

Inovio Pharmaceuticals (AMEX:INO) reported Tuesday the U.S. Patent and Trademark Office granted patent protection for the company's SynCon vaccine for cervical dysplasias (pre-cancerous lesions) and cancers caused by the human papillomavirus (HPV).

The company develops DNA-based vaccines to treat and prevent cancers and infectious diseases.

Inovio said the patent granted to the Trustees of The University of Pennsylvania has been exclusively licensed to the company under its existing license agreement with the university.

The patent includes claims that cover Inovio's synthetic consensus HPV antigens, and DNA constructs and vaccines that include these antigens, including Inovio's cervical dysplasia/cancer vaccine, VGX-3100.

This patent also covers methods of treating a patient using the SynCon cervical dysplasia/cancer vaccine.

VGX-3100 is designed to raise immune responses against the E6 and E7 genes associated with the human papillomavirus types 16 and 18. The E6 and E7 proteins are responsible for transforming HPV-infected cells into pre-cancerous and cancerous cells.

Inovio’s aim is to stimulate a T-cell immune response strong enough to reject infected cells from the body.

"This additional patent grant bolsters the strong intellectual property portfolio around our SynCon synthetic vaccines," chief executive Joseph Kim said in a statement.

"Inovio's synthetic vaccine for these diseases answers an unmet need by providing non-invasive and potentially more effective approach for treating women with this condition."

Presently, the company is recruiting subjects for its phase II study for the drug, which is designed to enroll 148 patients with cervical dysplasia across 25 centres.

The placebo-controlled and randomized trial will assess the regression of cervical lesions. The secondary endpoint will be to measure immune responses to the drug. Subjects will also be monitored for tolerability and safety.

The company’s SynCon vaccines are designed to provide broad cross-strain protection against known and newly emergent unmatched strains of pathogens such as influenza.

These synthetic vaccines, in combination with Inovio's proprietary electroporation delivery, have been shown to generate positive immune responses, along with a favourable safety profile.

Inovio's clinical programs include phase II studies for cervical dysplasia, leukemia and the hepatitis C virus and phase I studies for influenza and HIV.

Shares of the company went up 2.09 percent, climbing to 55.1 cents on the AMEX Exchange on Tuesday afternoon.


Source : http://www.proactiveinvestors.co.uk/companies/news/42238/inovio-granted-us-patent-protection-for-cervical-dysplasiacancer-vaccine--42238.html

Patent Infringement | "Energy Conservation Co. Files Patent Infringement Suit"

By : Cassandra Day
Source : http://middletown-ct.patch.com
Category : Patent Infringement

Energy services and information companies, NXEGEN, LLC and NXEGEN Holdings has filed a patent infringement lawsuit against Norcross, Georgia-based Comverge.

NXEGEN filed the lawsuit in the U.S. District Court, District of Connecticut, April 9. The lawsuit seeks, among other things, damages and permanent injunctive relief against Comverge and alleges that Comverge is infringing two of NXEGEN’s patents: 

    U.S. Patent No. 6,633,823 B2: “System and Method for Monitoring and Controlling Energy Usage”

    U.S. Patent No. 7,135,956 B2: “System and Method for Monitoring and Controlling Energy Usage”

NXEGEN takes its intellectual property and the value of its patents seriously. In July 2011, NXEGEN sued Sensus USA, Inc. for infringement of the same patents.

Founded in 1998, NXEGEN is a Connecticut-based company that provides real-time energy information and load management services to municipal, commercial, and industrial customers utilizing its state-of-the-art wireless network solutions. NXEGEN’s customers benefit through lower energy costs that are sustained and managed on a proactive and long-term basis.

Customers include utilities, municipalities, and businesses in states across the country.  NXEGEN is dedicated to protecting its investment in its intellectual property, including the patents in this lawsuit.


Source : http://middletown-ct.patch.com/articles/patent-lawsuit