IP Factor Calls on French President to Disconnect Himself from the Internet

October 14, 2009

Nicholas Sarkozi, the French President believes that serious copyright offenders should be disconnected from the Internet by the service providers. The French Court disagrees, considering Internet Access a basic human right – which is a bit daft in my opinion, although I am all for free access to information.

Anyway, since Mr Sarkozi’s presidential services have made 400 bootleg copies  of a documentary about the president, he is clearly a serious copyright offender.

 The French satirical investigative journalism weekly “ Le Canard Enchaîné” reveals “that our holier-than-thou presidency is in fact a pirate’s lair. In a stunning display of hypocrisy, the presidential audiovisual services produced 400 unauthorized copies of the 52 minutes documentary “A visage découvert : Nicolas Sarkozy”…

Unfortunately, this is not the first instance of copyright infringment by his excellency:

It is even more appalling that we are dealing with repeat offenders : last spring, while the Hadopi law was discussed, U.S. music duo MGMT received €30,000 as a settlement for a copyright infringement by French President Nicolas Sarkozy’s party who used one of its songs at a political rally without permission. Those who led the charge against Internet users are not the most respectful of copyright.”

As it is unlikely that the French president wants these recordings for personal viewing, this clearly goes well beyond any reasoanble description of fair use, and we call on my Sarkozy to disconnect himself from the Internet, or to resign from politics.


Shneider Arrested For Fraud

October 13, 2009

SchneiderSelf-proclaimed patent expert and entrepeneur, Joseph Schneider, has been arrested for fraud. Schneider, wh founded the so called “Israel School for Inventors in Accordance with the Schneider System”, who offered IP services and who claimed to help clients prototype their ideas and to manufacture them in China is accused of pocketing his gullible client’s money.

It appears that unfortunately, services that appear too good to be true, generally are too good to be true. No doubt other scammers will be there to fleece the unwary.

Moral of the story: Beware of one-stop shops. Beware of self-proclaimed experts. Get recommendations. Check that service providers are licensed. Not everyone who has managed to sell a product like a children’s toy has the depth of understanding to help others.


Making small-talk; does size matter?

October 13, 2009

Gemcom LTD. filed Israel trademark application number 170851 for “Small Talk”. Orange Personal Communications LTD. filed an opposition, claiming likelihood of confusion with their mark “big talk”.

After four years of submissions of evidence, the Commissioner of Patents and Trademarks, Dr. Meir Noam, has rejected the arguments put forwards by Orange (Partners), and allowed registration of the mark.

To obtain the mark for big talk, Orange had to disclaim both words individually. Grounds for opposition include appearance and sound, types of goods and marketing channels and a catch-all common sense and everything else clause. Clearly the marks are not similar in appearance and sound, and the word talk is generic for mobile phone communication. The marks are also currently used for different telecommunication services.

The main issue is common sense. Does a mark give rights to opposite words by association?

Yes, No, Black, White. Confusing isn’t it?

It seems silly that it should, but the OHIM found confusion for Black Star and White Star champagnes and Proctor and Gamble managed to convince the US Court of Customs and Appeals that Mr. Stain was confusing with Mr. Clean.

The Commissioner went to rule that the dictionary definitions of small talk, i.e. idle chitchat, as a pose to big talk – important and weighty deliberations, supported arguments that the two marks were dissimilar. We are not sure why he didn’t come tot he conclusion that both were generic, but that as may be. In his conclusions, the commissioner ruled that the likelihood of confusion was insufficient to rule out registration of the term as a trademark.

In an interesting wrinkle, the opposer attempted to claim that the mark “big talk” was well-known and thus entitled to wider protection on that basis. The commissioner discounted the evidence presented since Gem-com supplies its services to foreign workers and the survey used to support the claim that bog talk was well known was taken by telephoning Adult Jews using land lines, and so did not sample the relevant audience. This emphasizes the need to tailor surveys to the relevant audience.

I think the decision is a correct one, in that any other conclusion would be unacceptable.

I imagine Orange is very put out with the logo of the small talk Organization in the UK, see: www.smalltalk.org.uk/page33t.html


Medicines Company Sues Teva Over Angiomax

October 12, 2009

The Medicines Company have filed a patent suit against Teva Pharmaceutical Industries Ltd to attempt to protect their anti-clotting drug, Angiomax.

Angiomax (bivalirudin) is an anticoagulant that is used to lessen bleeding during heart procedures and may be injected during percutaneous coronary intervention, for example, to prevent clotting during angioplasty procedures.

Teva, the world’s largest generic drugmaker, could launch an Angiomax generic as early as this month. Angiomax’s patent will expire in March 2010. Medicines Co would have obtained a four year extension had they not missed the deadline to file for extended patent exclusivity by merely a day.

In addition to suing  class=”hiddenSpellError” pre=”suing “>Teva Parenteral Medicines, Inc, the Medicines Company are also suing Pliva Hrvatska d.o.o. , APP Pharmaceuticals, LLC, and related entities in the United States District Court for the District of Delaware alleging patent infringement based on the Abbreviated New Drug Applications seeking US Food and Drug Administration approval to market and sell generic versions of The Medicines Company’s Angiomax product prior to the expiry of US Patent No. 7,582,727.


Lukes Oil Convenience Stores Sued by Union of Orthodox Jewish Congregations of America

October 10, 2009

The Union of Orthodox Jewish Congregations of America have filed a lawsuit in the U.S. District Court in Hammond after a regional gas station called Luke’s Oil Co. failed to remove the trademark OU Kashruth symbol from its logo.

The OU symbol indicates that food is kosher and supervised as such by the  Union of Orthodox Jewish Congregations.

Having registered the symbol as a trademark, the Rabbinic Authority are relying on trademark infringement as a quick and efficient way to have the false certification removed.

For more details, see: http://www.wbbm780.com/Orthodox-Jews–Labels-not-kosher-at-Luke-Oil/5409602


Teva Files Suit Against India’s Lupin to Keep Oral Contraceptive Monopoly

October 10, 2009

Teva Women’s Health has filed suit in the US District Court for New Jersey, claiming that Lupin had filed an abbreviated new drug application (ANDA) with the US Food and Drug Administration (FDA) which infringes the patents of Seasonale, an oral contraceptive owned by Teva since they bought out Barr last year for $7.6 billion. The purpose of the suit is to prevent sales of the infringing drug.

Seasonale limits the number of menstrual periods women have in a year from 12 (monthly) to 4 (seasonally). the drug has annual sales in the US, exceeding $120 million.


Patently Foolish Israel News Reporting of Nobel Prize

October 9, 2009

Dr. Ada Yonath, a scientist at Israel’s Weizmann Institute, was awarded the Nobel Prize in chemistry on Wednesday, together with American researchers at Cambridge University, Venkatraman Ramakrishnan and Thomas Steitz. The prize is recognition for the important contribution she has made in mapping ribosomes, the mechanisms that manufacture proteins within cells. This helps explain the mechanism of life, and like all knowledge has value.

Basic research may, of course, be applied to practical ends. For example, her insights may help medical researchers maybe better able to tailor antibiotics for specific diseases. Nevertheless, I was surprised to see Israel’s late night news on Channel One host fellow patent attorney Dr. Gal Ehrlich, as guest commentator on her achievement. True his academic background is life sciences, but like many other patent attorneys including myself, he decided to leave academic research and, instead, to help others obtain patent protection for their inventions. It turned out that he had little idea what he was doing on the program either.

The presenter apparently knew what he was doing since clearly Nobel prizes and patents are similar things. Ehrlich did his best to explain that Nobel prizes are rewarded for scientific discoveries and insights, whereas patents are rewarded for inventions. The presenter wasn’t really listening, wanted to know if there was truth in inane song that “Jewish Head Invents Patents” and kept referring to his script to inform the viewers of interesting and presumably relevant tidbits such as the disk-on-key, the cherry tomato and the soup-nut being Israeli patents.

Now, I have not read Dr. Yonath’s publications, gave up studying biology 25 years ago when my high school wouldn’t let me continue with maths, physics, chemistry and biology to ‘A’ level, due to the weight of lab work, so, despite winning the school biology prize (a lesser achievement than a Nobel, but we boast about what we can), I gave up the formal study of biology and continued with solid state physics, materials science, etc.

Nevertheless, despite not being fully informed of what Yonath has done to move knowledge forwards, I suspect it is more significant than the invention of a square shaped, baked crouton for adding to soup. I imagine that most Israeli viewers, even those of only average intelligence and education, will be able to appreciate the difference as well.

Incidentally, the disk-on-key was actually a non-patent. M-systems forgot to claim that particular application of the flash memory which was an Israel invention and which is patented in Israel. Cherry tomatoes are closer to the wild and first cultivated varieties from the new world than many other varieties on the market. The idiot presenting the news went on to tell Ehrlich that patents are very profitable. Well, occasionally that is, indeed true – even for the applicants and not only for the patent attorneys. It should be noted however, that developing and maintaining a patent portfolio costs a lot of money and most of the time, that money is not recovered.

Weizmann’s technology transfer company, Yeda, makes money from patents, as some of their inventions are profitable. Teva’s best-selling drug, Copaxone, developed at the Weizmann Institute, makes hundreds of millions of dollars in royalties for its inventors, and via Yeda, for the Weizmann Institute. Nevertheless, I suspect that the Weizmann Institute and the vast majority of the researchers there including the inventors of Copaxone and Dr.Yonath, would have little trouble in knowing what is worth more: a Nobel Prize and a 1/3 of the prize money, i.e. less than 1/2 million dollars, or a billion dollars in royalties for a patented drug, spread out over a 10 year period.

Dr Yonath does indeed appear as an inventor of a few patent applications filed by Yeda, including US20090081697A1, US20040265984A1 and US20030027315A1, but so what? The Nobel prize is in appreciation to her valuable contribution to knowledge. It recognizes discoveries and publication of those discoveries. The commercial success or failure of the patent applications do not contribute or detract one iota from her great achievement.  

Note, Nobel Prizes in Science are an award based on significant achievement. These are not to be confused with Nobel Peace Prizes which are a joke, as demonstrated by Obama getting this year’s award. By the end of his career he may have achieved something for world peace. So far, he has not even had an accomplishment that could, in the perspective of time, be considered as having averted war or saved lives. Then again, with former winners like Arafat, why shouldn’t Obama have one?

We congratulate Professor Yonath, the Kimmelmans who funded her research, her co-inventors, the Weizmann Institute and the State of Israel. We wish we got more intelligent newscasters and better news programs for our television licenses. I do like soup-nuts though…


Boarding over Microsoft Windows with American Plywood

October 7, 2009

plywood over windowThere have been a number of big patent litigation suits against Microsoft, where record damages were awarded by the courts, which were subsequently drastically cut on appeal.

Over 2 billion dollars in jury awarded damages for patent infringement against Microsoft in favor of Lucent Alcatel were overturned on appeal, including a 1.538 billion award overturned by the Federal Circuit. At the end of September, an April award to Uniloc of $388 million in damages for infringement of patents by the activation technologies Microsoft uses in products such as Windows and Office was thrown out by US District Judge William Smith who noted that the jury who awarded damages “lacked a grasp of the issues before it and reached a finding without a legally sufficient basis.”

So what is going on?

To assess damages for patent infringement, the US courts attempt to work out what time of licensing agreement the parties would have reached had they negotiated an agreement at the time that the infringement started. The logic is based on Georgia Pacific’s alleged infringement of three patents held by American Plywood, the most important being one for a striated plywood, having grooves or striations in the uppermost ply that were popular since they were decorative, but more importantly, prevented the warping of the wood. This patent, that issued to a Donald Deskey in 1942 was litigated before a Judge Herlands who presided over the case for thirteen years, drafted a comprehensive opinion and then inconsiderately died before issuing his ruling. Luckily a Judge Tenney took over, and a year later issued a ruling, based on 15 factors that should be taken into account when assessing a reasonable royalty. The reasonable royalty award is what is still used to assess damages for patent infringement.

Cauley book cover ”Winning the Patent Damages case, A litigator’s Guide to Economic Models and Other Damage Strategies” by Richard F Cauley, Oxford University Press, 2008 is a handy 155 page flexible covered book that covers this esoteric field. Cauley believes that the parties in patent litigation too often concern themselves with proving or disproving infringment and do not put enough attention into calculating and proving the scope of the damages by vigorously pursuing a hypothetic negotiation to work out what would reasonably have been agreed by the parties.

The book is well written and may well be a good guide to how to litigate cases of this type. I don’t know, as I am not a litigator.

There is a lot of zero-sum game theory that makes sense. Nevertheless, I am a little uncomfortable with the concept that a reasonable damage award should be based on a hypothetic license based on an imaginary negotiation which is thus specific to the history and strategy of the parties.  Generally economic models are based on people behaving rationally and not emotionally. The sort of thing I find disturbing is the concept of taking into account previously paid out expenses in working out what is a reasonable license. Surely sunken costs should be ignored when making any objective assessment of what a technology is worth and I would prefer damages to be based on objective rather than subjective criteria. That said, clearly the focus on the book is how to litigate in the light of current case law, and it has little relevance if I think the system took a wrong turn 50 years ago.

the book was informative and generally well written.  It gave me a good insight into what happens in the US, and I imagine at some time, will help me advise my clients.

Personally I’d have liked a chapter summarizing what happens in other jurisdictions as well, particularly Europe and the Far East. However, any such guide would be totally superficial and probably beyond the author’s experience. The book is meant to provide practical tools and US patent professionals tend to be unaware that there are other jurisdictions, so I am not faulting Cauley for this.

The tools described may also of some value in analyzing what a patent is worth for licensing or selling.


Teva Novopharm Invalidates Eli Lilly’s Canadian Patent for Olanzapine (Zyprexa(R))

October 7, 2009

The Federal Court of Canada invalidated Eli Lilly’s Canadian Patent No. 2,041,113 for the compound olanzapine (Zyprexa(R)), used in the treatment of schizophrenia and bipolar I disorder. The Federal Court judgment by The Honourable Mr. Justice O’Reilly accepted Teva Novopharm’s arguments that Eli Lilly’s patent is invalid and, therefore, not infringed by Novo-Olanzapine. ATeva Novopharm launched Novo-Olanzapine in June 2007, four years prior to the expiry of the ’113 patent in April 2011. “This is the second significant ruling from the Federal Court of Canada in support of our arguments,” said Barry Fishman, Teva Novopharm’s President and Chief Executive Officer. “We are delighted the courts have ruled consistently on this patent – we have litigated twice on the same patent, the same issue, against the same manufacturer and the Courts have ruled the same. The ’113 patent is invalid and our product does not infringe.”


Backweb Settles With Sybase and Continues to Sue Microsoft and Symantec for Patent Infringement

October 1, 2009

backweb

BackWeb Technologies Ltd., situated across the road from my office in Rosh HaAyin, Israel (and a company I once did some work for as a technical writer on the software documentation of the product) has announced that it has reached a settlement in its patent infringement litigation with Sybase, Inc. and its subsidiary iAnywhere Solutions, Inc.

BackWeb and Sybase have reached a negotiated settlement under which Sybase and iAnywhere license the BackWeb patents in question and the companies’ claims have been resolved. Terms of the agreement remain confidential.

The remaining defendants, Microsoft Corporation and Symantec, are still being accused of infringin Backweb patents for software update technologies and a trial date of April 4, 2011 has been set by the court.


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