Celebrex, VirnetX, Hartz, Hanesbrands: Intellectual Property

(This is a daily report on global news about patents, trademarks, copyright and other intellectual property topics. To be sent this column daily, click SALT IPREPORT .)

(Bloomberg) — A U.S. appeals court reversed a Food and Drug Administration ruling that effectively blocked until June Mylan Pharmaceuticals Inc., Watson Laboratories Inc. and Lupin Pharmaceuticals Inc. from selling generic versions of the arthritis drug Celebrex.

The law governing copies of Celebrex, which generates $3 billion in sales annually for Pfizer Inc., is “unambiguous” in favor of the generics, the U.S. Court of Appeals in Richmond, Virginia, said in yesterday’s ruling.

The generic drugmakers “sought to prevent the FDA from granting any other company a 180-day exclusivity period” to sell generics. The district court sided with the FDA. In the reversal yesterday, a three-judge panel said that under one patent, the exclusivity period expired on Nov. 9, 2008, according to court papers. Celebrex was introduced in 1999.

Mylan filed the original suit in April, challenging FDA rulings on eligibility to market generics. Teva Pharmaceutical Industries Ltd., the world’s largest generic drugmaker, settled litigation with Pfizer in April. Reversal of the FDA decision bars Teva from selling the drug until June, according to Bloomberg Intelligence, because it’s no longer included in the first group of filers.

The case is Mylan v. FDA, 14-1522, U.S. Court of Appeals for the Fourth Circuit (Richmond).

VirnetX Loses Bid to Reinstate $368.2 Million Apple Damage Award

VirnetX Holding Corp. failed to persuade a U.S. appeals court to reconsider its September decision to throw out a $368.2 million damage award against Apple Inc. for infringing its patents.

VirnetX’s petition for a rehearing or for a hearing before all active judges of the U.S. Court of Appeals for the Federal Circuit was denied, according to an order posted on the court’s docket.

The case now returns to a trial judge in Texas to determine how much Apple should pay for infringing two patents with its VPN on Demand, and whether Apple’s FaceTime infringed two other patents. The appeals court’s September decision laid out rules that make it likely any damage amount will be much lower than the $368.2 million awarded by a jury.

That decision, one of several rulings from the court that limits damages in patent cases, said the value of a single invention in a complex device like a smartphone can’t be linked to the overall price of the phone. Instead, it must be linked to the component of the device.

In Apple’s case, that means royalties would be based on the percentage that the VirnetX invention contributes to VPN on Demand, not the iPhone.

VirnetX, based in Zephyr Cove, Nevada, gets all its revenue from royalties.

VirnetX argued that the court’s decision upset long- standing rules that ensure patent owners get a “reasonable royalty” on their inventions. Apple, based in Cupertino, California, said VirnetX was ignoring court rulings that mandated a link between the invention and demand for the complex product.

The appeal is VirnetX Inc. v. Cisco Systems Inc., 13-1489, U.S. Court of Appeals for the Federal Circuit (Washington). The lower court case is VirnetX Inc. v. Cisco Systems Inc., 10- cv-417, U.S. District Court, Eastern District of Texas (Tyler).

For more patent news, click here.

Trademark

Hartz Mountain Fails to Win Dismissal of ‘Angry Birds’ Case

Hartz Mountain Corp., a New Jersey-based maker of pet-care products, failed to persuade a federal court in Washington state to dismiss a trademark suit brought by a Seattle artist.

Juli Adams said in her Aug. 4 infringement complaint that she was approached by Hartz in 2006 to design a pet-toy line, and that under her contract with Hartz she retained the rights to her intellectual property.

She said Hartz made an unauthorized deal with Rovio Entertainment Oy, creator of the Angry Birds video game, and that the pet-toy company has “improperly reaped millions of dollars in profits” from her intellectual property. Hartz didn’t respond immediately to an e-mailed request for comment.

Rovio is not a party to the suit.

In his Dec. 15 ruling, U.S. District Judge Robert S. Lasnik denied the pet-care company’s request to dismiss the case. He said Adams had argued successfully that she had an actionable interest in Angry Birds that wasn’t licensed to Hartz, and that her interests extended beyond the drawings she did license to the company. She also demonstrated to the court’s satisfaction that she exercised sufficient supervision and quality control over her intellectual property.

He did dismiss her claims that Hertz converted her ownership of the “Angry Birds” trademark. He said the contract between the parties specified that such issues must be decided under New Jersey law, and that state’s law doesn’t recognize intellectual property as the subject of a conversion claim.

The case is Adams v. Hartz Mountain Corp., 14-cv-01174, U.S. District Court, Western District of Washington (Seattle).

Hanesbrands Sues Canadian Underwear Company for Infringing Mark

Hanesbrands Inc., the Winston-Salem, North Carolina-based maker of underwear and socks, sued a Canadian competitor for trademark infringement.

The suit, filed Dec. 5 in federal court in North Carolina, accuses Gildan Activewear Inc. and its Gildan USA unit of infringing Hanesbrands’ X-Temp trademark.

According to court papers, Hanesbrands has been selling T- shirts under the X-Temp brand since 2012, and has featured the product in television commercials with Michael Jordan. The company successfully registered the mark for use with socks, T- shirts and underwear in August 2013, according to its pleadings.

Hanesbrands objected to Gildan’s TEMPFX mark, used on products similar those sold under Hanesbrands’ X-Temp. The North Carolina company said it competes with Gildan and both sell their products in some of the same retail channels.

Montreal-based Gildan filed an application in October 2013 to register “TEMPFX” as a U.S. trademark, and Hanesbrands said in its court papers that it’s opposing that registration in proceedings before the U.S. Patent and Trademark Office.

In its response, Gildan denied the allegations Hanesbrands made to the patent office and asked that the Trademark Trial and Appeal Board dismiss the opposition to the registration of its mark. The Canadian company didn’t respond immediately to an e- mailed request for comment on the infringement suit.

The case is Hanesbrands Inc., v. Gildan USA Inc., 14- cv-01018, U.S. District Court, Middle District of North Carolina.

For more trademark news, click here.

Copyright

Jamaica’s Government Urged to Give Support to Copyright Industry

The copyright industry contributes as much to Jamaica’s economy as agriculture, about 5 percent, the head of the Jamaican Copyright Licensing Agency said, according to the Jamaica Observer.

Carole Newman, who heads the licensing group, said the government must recognize the importance of this sector of the economy and needs put into place “relevant support” to build the industry, the newspaper reported.

Part of this strategy, she suggested, would be for the government to include local books in a “Buy Jamaica” campaign and add them to local school curricula, according to the newspaper.

Newman said her organization has been negotiating with Jamaica’s Ministry of Education for 10 years on the regulation of photocopying, and has yet to secure a license, leading to the continuing practice of unauthorized duplication, the newspaper reported.

For more copyright news, click here.

To contact the reporter on this story: Victoria Slind-Flor in San Francisco at [e-mail] To contact the editors responsible for this story: Michael Hytha at [e-mail] Andrew Dunn, David Glovin