Thursday, March 21, 2013

(BN) Biogen, HTC, Boston, MIT, Mary Bono: Intellectual Property

(Bloomberg ) Biogen Idec Inc. (BIIB), the fourth- largest U.S. biotechnology company by market value, won a U.S. patent that may guard its experimental multiple sclerosis pill from generic competition for eight more years than anticipated.

The company's patent 8,399,514, which expires in 2028, was issued on an application filed in February 2012 by Weston, Massachusetts-based Biogen, according to the U.S. Patent and Trademark Office's website. The Food and Drug Administration is expected to decide whether to approve the medicine, Tecfidera, by the end of the month.

The drug had been protected by three patents that expire from October 2019 to May 2020, according to Eric Schmidt, a New York-based analyst with Cowen & Co. who estimates Tecfidera could generate $3.2 billion in annual sales in 2017. The drug was tested in doses given twice a day and three times a day, and the patent today covers administration twice daily.

"They have a novel discovery here in that they were first to observe that the lower dose of the drug, maybe somewhat surprisingly, was as active as the high dose," Schmidt said yesterday in a telephone interview. "The burden of proof will be on anyone else to show this patent isn't valid."

Biogen already sells the MS treatments Avonex, given by injection, and Tysabri, administered intravenously. Tecfidera, formerly known as BG-12, would be Biogen's first pill for MS, a disease that affects more than 2.1 million people globally, according to the National Multiple Sclerosis Society.

"The patent for this dosing regimen is recognition of the remarkable innovation Tecfidera represents for the MS community," Biogen Chief Executive Officer George Scangos said in a statement. "The tremendous research investment required to study and validate the patented dosing regimen is an example of innovation that leads to meaningful benefits to patients."

HTC Loses German Patent Suit Over Nokia Battery-Life Patent

HTC Corp. (2498) lost a German lawsuit after a court said it violated Nokia Oyj (NOK) patents for technology that helps save battery life on mobile phones.

The Mannheim court yesterday ruled that it infringed the German part of Nokia's European patent, HTC said in an e-mailed statement. Taoyuan, Taiwan-based HTC said the patent is invalid and it will appeal the decision.

Nokia last year sued HTC, BlackBerry and ViewSonic Corp. in the U.S., U.K. and Germany over 45 patents. The Espoo, Finland- based mobile-phone maker, struggling to reverse a sales slide, settled with BlackBerry in December. A month earlier, HTC reached a global patent settlement with Apple Inc.

"This decision cannot be described as a 'win' for Nokia because it only applies to handsets that are no longer imported into Germany, and newer HTC handsets do not use the accused technology," HTC said. "As Nokia clearly went to great lengths to assert its strongest patents first, we are confident that its non-essential patent portfolio poses little threat to HTC."

Nokia is "pleased with this decision, which confirms the quality of Nokia's patent portfolio," Mark Durrant, a spokesman for the company, said in an e-mailed statement. "HTC must now respect our intellectual property and compete using its own innovations."

HTC said the power-saving technology in the disputed patent is "trivial" and "contributes only a negligible reduction in power consumption."

The company said it will continue to pursue separate lawsuits to invalidate the Nokia patents pending in German and U.K. courts.

For more patent news, click here.


Minnesota Lawmakers Considering Ban on 'Trademark Bullying'

The Minnesota legislature is considering a bill that would bar so-called "trademark bullying."

HF 1116 defines trademark bullying as "the practice of a trademark holder using litigation tactics in an attempt to enforce trademark rights beyond a reasonable interpretation of the scope of the rights granted to the trademark holder."

The measure provides for the awarding of attorney fees to the prevailing party in exceptional cases. These would be cases in which a party brings suit for "harassment, malicious, fraudulent or willfully purposes, including trademark bullying,"

If the bill passes and is signed into law, it will go into effect Aug. 1 and will apply to actions arising from incidents occurring on or after that date.

For more trademark news, click here.


Rock Band Boston Song Publisher Sues Leader Over Copyrights

A publisher of hit songs by the 1970s rock band Boston, including "More Than a Feeling" and "Don't Look Back," sued the group's leader and songwriter, Tom Scholz, to prevent the termination of his copyrights.

Paul Ahern, the plaintiff, said that Scholz assigned copyrights to the songs he wrote in a 1975 agreement. He claimed that in January Scholz said he planned to terminate those rights, according to a filing yesterday in federal court in New York.

The threat to end the copyrights "casts a pall on the assets of the compositions, diminishes their value and complicates the ability of plaintiffs Next Decade and Ahern to commercially exploit them," his lawyers said in the complaint.

Scholz, a graduate of the Massachusetts Institute of Technology, said that the U.S. Copyright Act of 1976 grants him the authority to terminate Ahern's copyrights, according to the suit. Those rights would end in 2015.

"Tom Scholz filed to reclaim his copyrights, as many artists have done recently," Craig Pinkus, his lawyer, said in an e-mail. "The lawsuit from Mr. Ahern apparently seeks to resolve those rights in court. Mr. Scholz is confident in his legal position."

Ahern, a Florida resident whose publishing firm is Pure Songs, said he employed Scholz in 1975 to write the songs that were included on Boston's first two albums. He seeks a judicial declaration that Scholz has no interest in the copyrights to those songs and that the notice of termination is invalid.

Boston recorded its first albums for Epic Records, a unit of Sony Corp. (6758)'s Sony Music Entertainment. The self-titled debut album sold 17 million copies, according to the Recording Industry Association of America, and the single "More Than a Feeling" reached number five on the Billboard Hot 100. The second album, "Don't Look Back," sold 7 million copies, the RIAA reported, and the single peaked at number four.

The case is Ahern v. Scholz, 1:13-cv-01812, U.S. District Court, Southern District of New York (Manhattan).

MIT Will Release Edited Documents Related to Aaron Swartz Case

The Massachusetts Institute of Technology said it would release edited documents related to the school's role in the prosecution of Aaron Swartz, who killed himself while facing charges that he broke into the university's network to download millions of research articles.

In a letter to the MIT community, President L. Rafael Reif said the information wouldn't include names or information about MIT's computer vulnerabilities. MIT must protect people from "a pattern of harassment and personal threats," he said.

MIT, which prides itself on a commitment to openness, and the Justice Department have faced harsh attacks for their roles in pursuing Swartz, considered a hero by many in the movement to make information available for free.

"At MIT, we believe in openness, and we are not afraid to re-examine our own actions," Reif said. "Openness must be balanced with reasonable concern for privacy and safety."

MIT will release the documents when it issues a report by Professor Hal Abelson on the events leading to Swartz's suicide, Reif said. Swartz, facing as long as 35 years in prison and a $1 million fine, hanged himself in his Brooklyn, New York, apartment on Jan. 11. He was 26.

On March 15, lawyers for Swartz's estate filed a motion in federal court in Boston asking that documents related to the case against Swartz be released to the U.S. Congress and the public. They are asking that the names and titles of all law enforcement personnel and MIT employees in the documents also be released.

In November 2011, a magistrate judge issued a protective order barring disclosure of documents to anyone other than the defense team or potential defense witnesses.

"Public interest in access to these materials in an intelligible form outweighs the limited privacy interest in the names and official titles of the individuals named therein," Swartz's lawyers said in the March 15 motion.

The U.S. Attorney's office in Boston has agreed to the release of documents but seeks to keep private the names of law enforcement people investigating the case and MIT employees, according to the motion.

The case is U.S. v. Swartz, 11-cr-10260, U.S. District Court, District of Massachusetts (Boston).

EBay Wins as High Court Backs 'Gray Market' Discount Goods

The U.S. Supreme Court ruled that publishers and manufacturers can't block imports of copyrighted items made and sold abroad, bolstering the multibillion-dollar "gray market" in a victory for EBay Inc. and discount chains.

The justices, voting 6-3, yesterday threw out a $600,000 jury award assessed against a graduate student who imported John Wiley & Sons Inc.'s textbooks from his native Thailand and sold them in the U.S. for a profit.

The case was one of the top business and consumer cases pending at the court, with implications for sales by Costco Wholesale Corp. and Wal-Mart Stores Inc. as well as on EBay, operator of the world's largest online marketplace.

The gray market is the annual trade in tens of billions of dollars in genuine products outside of their official distribution channels to exploit lower overseas prices. Supporters of the gray market -- retailers, distributors and consumer advocates -- were battling publishers and manufacturers, which say their U.S. sales are being illegally undercut.

Writing for the court, Justice Stephen Breyer said a ruling in favor of Wiley would have subjected retailers to "the disruptive impact of the threat of infringement suits."

Imports of gray market products to the U.S. cost manufacturers as much as $63 billion in sales a year, according to a 2009 Deloitte LLP analysis conducted for Bloomberg. American sales of copyrighted works, including books, music and movies, amount to more than $220 billion a year, Breyer said yesterday, citing retail industry estimates.

"The Supreme Court's ruling is a victory for all American consumers and businesses," EBay said in an e-mailed statement. "The decision protects your right to buy and sell authentic goods, regardless of where they were made."

The Association of American Publishers said the decision undercuts a law designed to let U.S. copyright owners set different prices around the world. The ruling "will discourage the active export of U.S. copyrighted works," Tom Allen, the group's chief executive officer, said in a statement.

Wiley's chief executive officer, Stephen M. Smith, called the ruling "a loss for the U.S. economy, and students and authors in the U.S. and around the world."

The Obama administration backed the copyright owners in both cases.

Bloomberg Press is an imprint of Wiley.

The case is Kirtsaeng v. John Wiley & Sons, 11-697. For more copyright news, click here.

IP Moves

Copyright Term Extension Act Sponsor Joins Lobbying Firm

Mary Bono Mack, the former Republican member of the U.S. Congress who was one of the sponsors of the Copyright Term Extension Act of 1998, has joined FaegreBD Consulting, according to a statement from the Washington-based consulting and lobbying firm.

FaegreBD is a unit of Faegre Baker Daniels LLP, a Minneapolis-based law firm.

She will be a senior vice president, focusing her advocacy and consulting practice on matters related to the entertainment, media and information-technology sectors. She is the widow of the musician Sonny Bono, and is now married to former U.S. Representative Connie Mack IV, a Republican from Florida.

Initially elected to Congress in 1998 after her husband was killed in a skiing accident, she served until her defeat by Democrat Paul Ruiz in the 2012 election. Under federal rules she will be barred from lobbying for one year.

The copyright-extension bill she sponsored is sometimes known as the "Sonny Bono Act," extended the copyright term to the life of the creator plus 70 years. The bill is also nicknamed the "Mickey Mouse Act," because of the extensive support the Walt Disney Co. (DIS) gave the legislation, which ultimately prevented the early Mickey Mouse films from entering the public domain.

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