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Google demands Garcia rehearing, Pfizer patent invalidated, EU kicks up stink over cheese, US patent litigation plummets - the week in IP



Michael Loney


Google filing a petition for a rehearing of Innocence of Muslims case, Pfizer having a blockbuster patent invalidated, US patent litigation filings slowing and the EU looking to clamp down on the use of cheese names were among the intellectual property stories hitting the headlines this week

Google demands rehearing

Google this week filed a petition for a rehearing en banc of the controversial Garcia v Google copyright case. A Ninth Circuit decision on February 27 shocked copyright practitioners by ruling the film The Innocence of Muslims violated actor Cindy Garcia’s copyright and that Google must remove it from YouTube. (For more details of the case, read our "Innocence of Muslims" Copyright Decision Condemned story)

In the petition, Google said the Copyright Office has subsequently held that Garcia has no separable claim to copyright authorship in her performance because dramatic performances in motion pictures are part of the integrated work. The Copyright Office rejected Garcia’s copyright application on March 6. Google noted Garcia appeared in Innocence of Muslims for five seconds, did not produce or write the film and did not direct her performance.

The New York Times, LA Times and Washington Post have filed an amicus brief in support of Google, while Facebook, Twitter, IAC and Pinterest have requested permission to d so.

The Ninth Circuit has given Garcia 21 days to respond to Google’s petition for a rehearing. In response to the high-level of interest in the case, the Ninth Circuit has created a site to notify the public of procedures and rules for admission to proceedings.

Pfizer feeling invalidated

A district court in Virginia on Wednesday invalidated a patent for Pfizer’s painkiller Celebrex. The USPTO granted the firm a reissue patent last year covering methods of treating osteoarthritis and other approved condition with celecoxib. This reissued patent was intended to extend US patent protection for Celebrex to December 2015 from its original expiration of May this year.

"Pfizer disagrees with the ruling and will pursue all available remedies, including an immediate appeal of the court’s decision," the firm responded in a statement.

A trial was schedule for next week for infringement of the reissue patent in an action brought by Pfizer against generic drug companies Teva Pharmaceuticals, Mylan Pharmaceuticals, Watson Laboratories, Lupin Pharmaceuticals and Apotex. Each of these firms had filed to market a generic form of celecoxib in the US from May 30.

Sales of Celebrex, the firm’s fourth-biggest seller, were $2.9 billion worldwide last year.

Trading in Pfizer’s stock was briefly halted on Wednesday before the announcement. Pfizer is still adjusting to the loss of about $7 billion in annual sales of cholesterol-lowering medication Lipitor after generic competition started in December 2011.

EU cheesed off with US makers

The EU is looking to clamp down on the use of names such as Parmesan, feta and Gorgonzola on cheese made in the US. As part of EU-US free trade talks in Brussels, the EU has indicated that US-made cheeses reduce the sales and identity of the European cheeses.

The EU says Parmesan should only be made in Parma, the place that gave the cheese its name. Likewise, it says feta should only be made in Greece because despite not sharing a name with an actual place it "is so closely connected to Greece as to be identified as an inherently Greek product", argues the EU.

US cheese makers say a clamp down would hurt the $4 billion US domestic cheese industry.

US patent litigation’s slow start to year

The number of patent litigation case filings so far this year has plummeted 25% in the first two months for the year, noted the IPWatchdog blog.

January saw 322 new patent complaints filed, down 34% from 490 in January 2013. IPWatchdog’s Gene Quinn noted that a source had indicated that new patent lawsuits in February were also "quite lower’ than the same period in the previous year. He said 456 cases were filed in February this year, down 17% on February 2013’s 548 new cases.

"It is a little early to tell whether this is a sustainable trend, but at the very least this has to raise significant questions about whether the current patent legislation pending in the United States Senate is truly necessary," noted Quinn.

Gawker hits back at Tarantino’s furious anger

Gawker has asked a district court to dismiss Quentin Tarantino’s lawsuit against it for linking to a leaked copy of his Hateful Eight script, writes Alli Pyrah.

In a 28-page motion for dismissal filed this week, the gossip site said merely linking to a work protected by copyright is not infringement. It said that contributory infringement is not possible when the accused has not directly infringed.

Gawker also argued that even if it had infringed, linking to the script was fair use for the statutorily favoured purpose of reporting news.

"Gawker made minimal use of the script—it reproduced no part of it but merely linked to another publication," said the motion. "Gawker’s use was, at most, incidentally commercial and did not usurp the primary market for and purpose of the script: to make a movie."

Tarantino filed the complaint with the Los Angeles court in January, claiming Gawker "crossed the journalistic line by promoting itself to the public as the first source to read the entire screenplay illegally". 

He said Gawker asked its readers to provide it with a copy of the work by stating, "If anyone would like to... leak the script to us, please do so at [email address]."

Last month, the court granted Gawker’s motion to dismiss the suit against one of its entities, Gawker Media Group, because it is based in the Cayman Islands.

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