Monday, November 19, 2012

(BN) Apple, Google, Gevo, Dish, Kixeye: Intellectual Property

Apple Inc. and Google Inc.'s (GOOG) Motorola Mobility unit are talking about a way to resolve part of their dispute over patents related to critical smartphone technology, according to a court filing.

The companies have been exchanging proposals on using binding arbitration to reach a licensing agreement over patents that are essential to comply with industry standards on how phones operate. Such an agreement could lead to a global settlement of all of their patent disputes, Apple said in a Nov. 15 filing.

Motorola Mobility first raised the issue of arbitration on Nov. 5, before a federal judge in Madison, Wisconsin, threw out a breach-of-contract case that Apple had filed. The Cupertino, California-based maker of the iPhone claimed its mobile-phone competitor was misusing standard-essential patents to demand unreasonable royalties.

"We have long sought a path to resolving patent issues and we welcome the chance to build on the constructive dialogue between our companies," Google General Counsel Kent Walker said in a Nov. 13 letter to Apple that was filed with the court.

Apple, the world's most valuable company, has argued that competing handsets running on Google's Android operating system copy the look and unique features of its iPhones. A continuing battle with Samsung Electronics Co., which has the biggest share of the global market for smartphones, is being waged across the globe.

Even so, Apple has recently shown a willingness to settle some of the disputes. It announced a 10-year licensing agreement with Taiwan's HTC Corp. (2498) on Nov. 10. The company earlier settled a patent dispute with Nokia Oyj. (NOK1V)

"Apple's goal has always been to find a mutual and transparent process to resolve this dispute on terms that are fair, reasonable and non-discriminatory without the threat or taint of exclusionary remedies," Apple General Counsel Bruce Sewell said in a Nov. 8 letter to Google that was included in the filing.

Spokeswomen Kristin Huguet of Apple and Niki Fenwick of Google declined to comment.

Microsoft Corp. (MSFT) has its own battles with Motorola Mobility over standard-essential patents, and a non-jury trial is under way in Seattle. U.S. District Judge James Robart could issue a ruling establishing a fair rate for the Motorola Mobility patents. That could lead to an agreement between those two companies, said Victor Siber, former chief intellectual property counsel for International Business Machines Corp., and now with Baker Hostetler in New York.

The cases are: Apple Inc. (AAPL) v. Motorola Mobility Inc., 11cv178, U.S. District Court for the Western District of Wisconsin (Madison); and Microsoft Corp. v. Motorola Mobility Inc., 10cv1823, U.S. District Court for the Western District of Washington.

Gevo Wins Appeals Court Ruling in Butamax Patent Dispute

Butamax Advanced Biofuels LLC, a joint venture of DuPont Co. and BP Plc (BP/), lost an appeals court bid to block Gevo Inc. from selling some of its biofuels products while a patent- infringement case is pending.

Gevo has raised "a substantial question of validity" of the Butamax patent, the U.S. Court of Appeals for the Federal Circuit said in upholding a judge's decision not to issue a court ban. The court did say that U.S. District Judge Sue Robinson in Wilmington, Delaware should reconsider her interpretation of the patent. The case is part of a broader dispute between the two companies over genetically engineered microorganisms used to produce biofuels.

The case is Butamax Advanced Biofuels v. Gevo Inc. (GEVO), 12- 1490, U.S. Court of Appeals for the Federal Circuit.

For more patent news, click here.


Dish Files Applications to Register 'Hopper Transfers' Marks

Dish Network Corp. (DISH), which is involved in a copyright infringement case with News Corp. (NWSA)'s Fox Broadcasting unit, has filed multiple applications to register "Hopper Transfers" as a trademark.

According to the database of the U.S. Patent and Trademark Office, Englewood, Colorado-based Dish filed three applications Nov. 8 to register the term for use with telecommunications services, software for streaming video and audio, and digital video recorders. The Hopper service itself is at issue in a case in federal court in Los Angeles.

Fox had tried unsuccessfully to block Dish's ad-free primetime television service and its so-called AutoHop feature in advance of resolution of the copyright dispute. The company is appealing U.S. District Judge Dolly Gee's Nov. 7 order denying Fox's request.

According to the case file, the parties must file their briefs in that appeal by Dec. 7.

The case is Fox Broadcasting v. Dish Network, 12-04529, U.S. District Court, Central District of California (Los Angeles).

World Marketing Seeks Court Order for Surfer's Deposition

World Marketing Inc., owner of the Visitor, Kahuka Bay and Poeta Moda brands of consumer goods, asked a federal court in San Francisco to order a professional surfer to appear for a deposition in a trademark case.

QS Wholesale Inc. of Huntington Beach, Florida, filed suit in federal court in Santa Ana, California, seeking a declaration that its VSTR brand didn't infringe World Marketing's "Visitor" trademarks.

In its complaint, QS, which manufactures and distributes clothing under the Quiksilver, Roxy and DS Shoes brands, argued that the way its VSTR brand name was pronounced involved saying the name of each letter rather than as "visitor" and that it didn't infringe the World Marketing trademark.

World Marketing said that it learned that Robert Kelly Slater, a professional surfer, is the creator of and spokesman for the VSTR brand. The company alleged that Slater pronounces "VSTR" as "visitor," and seeks testimony from him to that effect.

Slater hasn't made himself available to be deposed, World Marketing said, even though he was served a subpoena and Nov. 14 was scheduled for his deposition.

The surfer didn't appear at the deposition, World Marketing said, and he has claimed he can't appear until January because he is "preparing full time" for the Association of Surfing Professionals World Championship Tour.

With a Dec. 21 cutoff date for discovery in the case, World Marketing argued that it's essential to have his testimony. The New York-based company said in its filing that the judge in Los Angeles has said there is no flexibility in the dates set in the case.

World Marketing asked the court to compel Slater to appear for a deposition on or before Dec. 14.

The case is QS Wholesale Inc., v. World Marketing Inc., 8:12-cv-00451-DOC-RNB, U.S. District Court, Central District of California (Santa Ana).

For more trademark news, click here.


'Simpsons' Actor Azaria Sues Craig Bierko Over Voice Rights

Hank Azaria, an actor on Fox television's "The Simpsons," sued a fellow actor, Craig Bierko, over the rights to the voice of a fictional baseball announcer in an Internet comedy program.

Azaria said his character, named Jim Brockmire, appeared in a video for the Web show "Funny or Die." He also said his plans to develop a movie based on the announcer have been "significantly impeded" by Bierko's claim to rights, according to a filing dated Nov. 14 in federal court in Los Angeles.

Bierko, who appeared in the 2012 movie "The Three Stooges," also created the voice of an announcer, Azaria said in the complaint. After the "Funny or Die" video appeared, Bierko demanded that Azaria stop using the announcer's voice, according to the complaint.

"Bierko's claim has created a cloud over the rightful ownership of the Azaria voice," the complaint states. "Would- be financiers and possible licensees of the asset would have valid doubts as to who is the proper copyright holder of the Jim Brockmire character."

Jill Littman, Bierko's manager, didn't immediately respond to messages seeking comment.

Azaria seeks a judicial declaration that he has the copyright to the Brockmire character, "which incorporates the Azaria voice." He also wants a declaration that no contract between him and Bierko was ever made.

The complaint states that Azaria created the announcer voice as early as 1983 and performed with it at his college. Someone who knew that Bierko also did an announcer voice put the two men in touch in 1990, according to the court filing. For several years, each used his own announcer voice in phone messages to the other, Azaria states.

After the "Funny or Die" video appeared, Bierko claimed that he had created the voice, according to the complaint.

The Brockmire character in the video has "a penchant for making obscure and off-the-wall cultural references when commenting on a baseball game," according to the complaint.

Azaria, whose movies include "The Birdcage" and "Godzilla," is also the voice of Moe the bartender on "The Simpsons."

The case is Azaria v. Bierko, 12-09732, U.S. District Court, Central District of California, Western Division (Los Angeles).

For more copyright news, click here.

Trade Secrets/Industrial Espionage.

Kixeye Files Response to Zynga's Trade Secret Theft Claims

Kixeye, the San Francisco-based games company, filed a countersuit against Zynga Inc. (ZNGA) in a trade-secrets dispute.

Zynga filed the initial suit Oct. 12 in state court in San Francisco, claiming its former studio general manager Alan Patmore took company files with him when he joined Kixeye.

Also located in San Francisco, Zynga claimed the files contained revenue information, and monetization strategy for its games, plus design documents for more than 10 unreleased games, in addition to 14 months of confidential e-mails reserved exclusively for Zynga's executive staff.

It alleged that Kixeye, which like Zynga, releases free-to- play online social games, had "failed to achieve success" because it lacked Zynga's know-how. Zynga said that on Patmore's final day of employment, he refused to confirm he had returned company data, and refused to sign a termination certification document.

In its Nov. 13 cross complaint, Kixeye said there was nothing Zynga had that it wanted. "Comparing Kixeye's games to Zynga's games is like comparing a Ducati racing motorcycle to a minivan. Both are motorized vehicles, but Ducati motorcycles, like Kixeye's midcore games, appeal to a small but passionate group of users who are focused on quality and performance," the company said in its pleadings.

Kixeye dismissed Zynga's work as "cranking out games that will fit the whole family without offending anyone" and claimed that Zynga is "notorious for copyright and cloning the games of its competition, often trampling those competitors' intellectual property rights in the process."

The motivation behind Zynga's suit, Kixeye claims is to scare any of its employees that might want to leave and work at the competitor, and to use the case as a "Trojan Horse" to gain access to Kixeye's inner workings and trade secrets.

In its filing, Kixeye asked the court to bar Zynga from interfering with its right to recruit and hire Zynga employees, and to prohibit the company from threatening to file or actually filing suits against its own employees in efforts to dissuade them from coming to work at Kixeye.

The case is Zynga Inc. v. Alan Patmore, CGC-12-525099, Superior Court of the State of California (County of San Francisco).

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