Global Week in Review 12 September 2012 from IP Think Tank

Here is Think IP Strategy’s weekly selection of top intellectual property news breaking in the blogosphere and internet.


Highlights this week included:

US: 2nd Circuit rules that color can serve as a trademark in the fashion industry, but limits scope of mark for red-soled shoes: Louboutin v Yves Saint Laurent (IP Spotlight) (IPKat) (PHOSITA)

US: 8th Circuit: $222,000 music piracy fine not unconstitutional: Capitol v Thomas – file-sharer to take case to Supreme Court (TorrentFreak) (Recording Industry vs The People) (Ars Technica)

India: Cipla wins landmark Roche v Cipla patent litigation concerning Erlotinib (IIPRD) (Spicy IP) (Spicy IP)


Please join the discussion by adding your comments on any of these stories, and please do let us know if you think we’ve missed something important, or if there is a source you think should be monitored.



Global – General

Strong IP protection is critical component of trade agreement (BIOtechNOW)

The contributions of Julian Assange to the debate on intellectual property (IP Watch)

IP protection in the Global Competitiveness Report 2012-13 (IPKat)

Members of Congress and Governors backing PhRMA/BIO, calling for 12 years data protection for biologic drugs in TPP (KEI)

Test data protection for medical inventions (KEI)


Global – Patents

Thomson Reuters study explores Apple’s mobile patent portfolio for hints at new iPhone technology (IP Solutions Blog)

Frugal innovation: Will it change the center of global innovation gravity from West to East? (Business IP and Intangible Assets Blog)



FCA issues preliminary injunction barring generic corticosteroid mometasone furoate (MF) nasal spray for treatment of allergic rhinitis: Merck Sharp & Dohme v Apotex  (Patentology)

High Court refuses special leave in TV Now case: National Rugby League Investments v Singtel Optus (IP Whiteboard)

Film studios take the law into their own hands in UK (could it happen here?) (IP Whiteboard)



ACCC legal counsel: Access Copyright licence provides “little value” (Michael Geist)



Why the proposed amendments to the patent law really matter … and maybe not just for patents (China IPR)



EPO codifies CJEU’s decision on human embryonic stem cells (Patent Docs)

Copyright is stuck in the ’90s: Neelie Kroes calls for change in “Copyright and innovation in the creative industries” speech (The 1709 Blog)

Storck can’t register CTM in its chocolate mouse – CJEU dismisses Storck’s appeal (IPKat) (Class 46)

Europe celebrates 20 years of the Single Market (Class 46)

So now we’re agreed, the European Emblem is protected (IPKat)



French anti-piracy agency Hadopi only sued 14 people in 20 months (Ars Technica) (TorrentFreak)



Starting a collecting society (IPKat)



Cipla wins landmark Roche v Cipla patent litigation concerning Erlotinib (IIPRD) (Spicy IP) (Spicy IP)

Thoughts on the Oxford University Press copyright infringement case against Delhi University and an on-campus photocopying shop (Spicy IP) (Spicy IP) (Spicy IP) (Spicy IP)

Protecting parental lines of extant hybrids in India (Part I – Spicy IP) (Part II – Spicy IP)

Govinda gooovinda! Closer look at G.I registry’s decision on Tirupati laddu rectification plea (Spicy IP)



KOPITIAM fight escalates – generic name for Chinese coffee house registered as trademark and asserted against coffee houses  (IP Komodo)



Italian u-turn on latanprost abuse of dominant position dispute (The SPC Blog)



Reports indicate Japan ratifies ACTA (Michael Geist)



District Court of The Hague awards provisional injunction against Teva for duration of PI proceedings: Sanofi v Teva (Irbesartan and HCTZ) (EPLAW)


New Zealand

‘My software, my choice’ – new Patents Bill computer program patentability provision change (Patentology)

ISPs landed with up to 76% of costs of sending 3 strikes piracy notices (TorrentFreak)

New Zealand approaches ‘third strike’ (The 1709 Blog)



Apple battles with A.PL (Class 46)


South Korea

Korea looking into Apple complaint over Samsung’s 3G patent “abuse” (Ars Technica) (FOSS Patents)



Plans to introduce paediatric extensions to Switzerland’s SPC regime (The SPC Blog)

Swiss based firm attempts to monopolise biltong (Afro-IP)

Swiss Federal Patent Court adopts Dusseldorf rules for preliminary taking of evidence (Kluwers Patent Blog)


United Kingdom

EWCA: All claims of HGS patent valid: Eli Lilly v Human Genome Science (EPLAW) (PatLit)

Divide and rule: a new regime for governing British IP (IPKat)

UK and US boy bands, both by the name of One Direction settle trademark dispute (IP Whiteboard)

Illegal file-sharing activity generally logged within three hours, according to new study (Out-Law)

Fifty Shades translated: moral (rights) concerns? (The 1709 Blog)


United States

US General

The brand-name side of the exclusivity equation; exclusivity under fire (FDA Law Blog)

Would a biologic by any other (nonproprietary) name smell as sweet? (Beeser)

Congressional Report: US is negotiating TPP as if fast track authority still exists and its IP provisions go beyond international standards (EFF)

Congress members demand USTR tell the American people what’s going on with the TPP and its impact on digital freedom (EFF) (IP Watch)


US Patents

Patent pendency time series and why care about prosecution delays (Patently-O)

Patent pendency update (Patently-O)

USPTO examiner interviews make the news (PharmaPatents)

First to file practice: an alternative interpretation of the grace period shielding disclosure exception (PharmaPatents)

USPTO proposes new patent fees based on cost-recovery (Patent Baristas)

Your patent has been challenged at the PTAB….now what? (Patents Post-Grant)

New e-filing portal for post grant patent trials unveiled (Patents Post-Grant)

CSL Bank v Alice Corp: Patenting software ideas (Patently-O)


US Patents – Decisions

CAFC: “Second best choice” does not teach away: Santarus v Par Pharmaceuticals (Zegerid) (Beeser) (Patently-O) (Patently-O)

CAFC confirms that U.S. priority claim must be considered when assessing interference timeliness: Loughlin v Ling (PharmaPatents)

CAFC: Analogous art and wilful infringement: K-Tec v Vita-Mix (Patently-O)

District Court Columbia grants FDA’s motion to dismiss KV’s case seeking to restore ophan drug exclusivity for Makena (hydroxyprogesterone caproate) (FDA Law Blog)

District Court Delaware: First-to-file rule trumps forum selection clause: Mitek Systems v United Services Austmobile Association (Docket Report)

ND Mississippi: “Evolving” laws at time of infringement preclude finding of willful infringement and award of enhanced damages or attorneys’ fees: Monsanto v Scruggs et al (Docket Report)

ND Illinois: Alleging infringement by “at least” certain products was “deliberately vague” and failed to state a claim of infringement: Radiation Stabilization Solutions v Varian Medical Systems (Docket Report)


US Patents – Lawsuits and strategic steps

Apple – ITC: Apple seeks sanctions against HTC after inventor of two 4G patents denies that he knows his stuff (FOSS Patents)

Apple – ITC: Apple and HTC confirm recent settlement talks, will continue discussions in the future (FOSS Patents)

Apple – ND California: Apple says Judge Koh can’t dissolve Galaxy Tab 10.1 preliminary injunction while it’s on appeal (FOSS Patents)

Apple – ND California: Apple wants ruling on its FRAND defenses and unfair competition counterclaim against Samsung (FOSS Patents)

Aviva Sports –  Defendant sanctioned for document dump has “chutzpa” to blame plaintiff for reviewing documents too slowly: Aviva Sports v Fingerhut Direct Marketing (Docket Report)

CIVIX-DDI – NPE’s choice of forum given little weight in venue challenge: CIVIX-DDI v Loopnet (Docket Report)

LG – LG challenge to four lighting patents among the reexamination requests filed week of September 4, 2012 (WHDA)

Medicis Pharmaceutical Corp – Medicis files patent infringement suit against Actavis Mid Atlantic in response to Para IV challenge concerning Zyclara cream (imiquimod) (Patent Docs)

Merck – SAMSF, Merck, and Pamlab file new 337 complaint regarding Certain Reduced Folate Nutraceutical Products and L-methylfolate Raw Ingredients Used Therein (ITC 337 Law Blog)

Microsoft – WD Washington: Microsoft and Google’s Motorola Mobility attack each other’s FRAND royalty expert reports (FOSS Patents)

Mondis Technology – ALJ Essex grants motion for summary determination of no section 337 violation by Chimei Innolux in Certain Video Displays (337-TA-828) (ITC 337 Law Blog)

Nintendo – Nintendo attack on video game patents, among the reexamination requests filed week of August 27, 2012 (WHDA)

OSRAM – ALJ Pender grants motion to terminate investigation as to Samsung in Certain Light-Emitting Diodes (337-TA-785) (ITC 337 Law Blog)

Otter Products – ITC to review in part the finding of violation of section 337 in Certain Protective Cases (337-TA-780) (ITC 337 Law Blog)

RMail – RMail challenges the use of subject matter eligibility as an invalidity defense: RMail v and PayPal (Patently-O)

Samsung – Apple leverages jury verdict on patent exhaustion against Samsung’s push for ITC import ban (FOSS Patents)

Teva Branded Pharmaceutical Products – Teva files patent infringement suit against Perrigo in response to Para IV challenge concerning ProAir HFA Inhalation Aerosol (albuterol sulphate) (Patent Docs)


US Copyright

Copyright’s robot wars heat up as algorithms block live-streams first and ask questions later (EFF)

TRAC tracks rise in US copyright litigation (The 1709 Blog)


US Copyright – Decisions

8th Circuit: $222,000 music piracy fine not unconstitutional (Capitol v Thomas) – file-sharer to take case to Supreme Court (TorrentFreak) (Recording Industry vs The People) (Ars Technica)

ND California: BitTorrent defendant not negligent for failing to secure home Wi-Fi network: AF Holdings v Doe (Internet Cases) (EFF)

Oracle must pay Google $1M to cover costs in failed patent case (Ars Technica)

WD Washington: Fight over access to log-in credentials for blog does not trigger copyright pre-emption: Insynq v. Mann (Technology & Marketing Law Blog)

SD Texas: Is a website “published” for copyright law purposes?: Rogers v. Better Business Bureau of Houston (Technology & Marketing Law Blog)


US Trade Marks – Decisions

2nd Circuit rules that color can serve as a trademark in the fashion industry, but limits scope of mark for red-soled shoes: Louboutin v Yves Saint Laurent (IP Spotlight) (IPKat) (PHOSITA)

Precedential no. 28: TTAB finds stylization of “SADORU” not enough to overcome mere descriptiveness refusal for motorcycle seats (TTABlog)

Precedential no. 29: TTAB affirms 2(e)(1) and failure-to-function refusals of SEMICONDUCTOR LIGHT MATRIX for light curing systems (TTABlog)

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