reflects on facts of life after Google mistrial
day of jury deliberations, a Delaware federal judge declared a mistrial in a patent
infringement suit brought by Intellectual Ventures against
Google-owned Motorola Mobility because the jurors could not
come to a unanimous verdict. The dispute involved patents
covering smartphone technologies including Google
Judge Sue Robinson declared the mistrial nearly two weeks after
the trial began.
"Mistrials are an occasional fact of life, and it is
disappointing (for us, and probably also for Motorola) that the
jury could not reach a unanimous verdict. But we are looking
ahead to the retrial on these patents and also to our two other
upcoming trials with Motorola Mobility Inc later this year,"
said Melissa Finocchio, chief litigation counsel for
Intellectual Ventures, in a statement.
additional patents in Intellectual Ventures’ case
against Motorola are scheduled to go on trial on or after April
7. A separate patent infringement complaint against Motorola is
scheduled to go on trial in a Florida district court on or
after November 17.
The Court of Justice of the EU issued a typically Delphic judgment this week in a dispute between
energy drink Red Bull and a Dutch company using the sign The
Bulldog, including for energy drinks. The Court was answering a
question from the Netherlands regarding the interpretation of
the EU Trade Marks Directive.
In response, it said that Article 5(2) of the
Directive means that trade mark owners must tolerate
third-party use of similar signs on identical products if the
use pre-dates the mark and is in good faith. This means taking
account of: the acceptance and reputation of the sign among the
relevant public; the "degree of proximity" between the
goods/services on which it is used and those of the trade mark;
and "the economic and commercial significance" of the
The Dutch Hoge Raad will now have to try to make sense
of those directions in deciding whether the famously forceful
Red Bull can stop a competitor from using a sign incorporating
the word Bull.
busy week for licensing
some observers believe could be part of an increasing trend, Samsung this
week announced a patent cross-licensing agreement with
Cisco. The deal gives both companies access to each
other’s patent portfolios, covering existing
patents and those filed over the next 10 years.
said the agreement is part of a push to reverse the trend of
innovation being stifled by an overly-litigious environment.
Samsung announced a similar deal with Google in January. Also
this week Twitter entered into a cross-licensing deal with IBM as part of a
deal to to buy 900 patents from the firm. Managing
IP’s cover story in its February issue noted
that technology companies are increasingly turning to patent
licensing as a strategy.
busy week did not end with the Samsung deal, however. It
announced a $2.7 million settlement with patent troll
Innovatio IP Ventures. The deal works out at 3.2 cents for
each of the 85 million devices that Innovatio is licensing.
Cisco triumphantly declared this a victory in the war against
trolls and said it highlighted the need for patent
$13 million on this litigation, not including the $2.7 million
settlement," said Mark Chandler (right), general counsel at
Cisco, in a blog. "But that expenditure would not have been
necessary if Innovatio had met its obligations to license on
reasonable and non-discriminatory terms, and had come to Cisco
seeking a reasonable licence first rather than targeting our
customers and those of other manufacturers."
Song-and-dance over Glee
Further to this week’s post on the trade mark litigation craze
sweeping the UK comes another decision on dilution and passing
off, this time concerning the Glee TV programme.
20th Century Fox, maker of Glee, was sued
by Comic Enterprises, which had registered The Glee Club in
1999. The case was transferred to the High Court after Fox
successfully argued that it was too big an undertaking
for the PCC (now IPEC).
According to a summary by Wragge & Co (which acted
for Comic Enterprises), Deputy Judge Roger Wyand QC found the
mark was valid, and that there was trade mark infringement by
dilution and tarnishment. In particular, he found what he
called "wrong-way-round confusion" as the public believed The
Glee Club was associated with the Glee programme.
This, it should be said, was based on evidence from
members of the public that they had confused The Glee Club with
Glee. It’s not yet clear whether Wyand himself had
visited The Glee Club, or indeed if he is a fan of the TV
Oregon ponders patent
turn up the heat on patent trolls by passing a bill to clamp down on patent trolls
targeting the state’s individuals and
businesses. The Unlawful Trade Practices Act is up for a
vote in the state’s Senate Judiciary Committee on
February 12. If passed, Oregon would join Vermont in having legislation on the books
to take on patent trolls. New York’s attorney
general also in January announced a settlement with MPHJ. Many
other states are speaking out against trolls and considering
Washington Post reported that, according to a new study, patent trolls
filed 18% more lawsuits in 2013 than in 2012, and sued 11% more
In addition, this week
Managing IP’s Twitter account passed 10,000 followers.
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