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Battle of the IP bands, Google v Oracle, Taylor Swift, Section 101 judgments, Eli Lilly – the week in IP



Michael Loney


IP practitioners squaring off in a Battle of the Bands, the US Supreme Court denying three IP petitions, The Irish Times taking a stand against Taylor Swift, the latest data on Section 101 motions, and Eli Lilly being fined in Brazil for “sham” patent litigation were in the IP headlines in the past week

Battle of the Bands

London was the scene for IP rockers this week, in a Battle of the Bands event organised by the Chartered Institute of Patent Attorneys (CIPA).

The battle included some inspired band names: squaring off were IP Freely and the Incontinents (pictured top), The Black IPs (pictured bottom), The Non-Practicing Entities and The Groundless Frets.

IP Freely and the Incontinents won the contest this year. The winners were from Collyer Bristow.

The judges were: Simone Ferrara, CIPA council member and patent attorney at Vodafone; David Musker, CIPA member and partner at Jenkins; Victoria Oladele, project manager at charity Generating Genius; and Gideon Woldeslassie, project Manager at charity Generating Genius.

Previous winners are The Groundless Frets (Boult Wade Tennant) in 2013 and The Black IPs (Kilburn & Strode) in 2012. There was no event in 2014.


SCOTUS takes a breather

The Supreme Court was eagerly watched by IP practitioners this week to see if it would take up any IP petitions for certiorari. Instead, it denied three: Google v Oracle, Google v Vederi, and Ultramercial v WildTangent.

Observers speculated that the Supreme Court may be taking a break after being extremely active on IP cases by historical standards. "Apart from leaving-stand the particular holdings, these outcomes may collectively signal a time of out-breath for Supreme Court patent law jurisprudence," noted Professor Dennis Crouch on the Patently-O blog. "By my count, there are no patent decisions pending before the Court (with certiorari granted) and none of the petitions on file carry a substantial chance of being granted."

Patent holders may cheers this news if the criticism at the recent BIO conference about the damage that the Supreme Court has given to Section 101 to is anything to go by. In the Ultramercial case the Federal Circuit had held that a patented method of distributing media content with advertising was a patent ineligible abstract idea.

The refusal to hear the Google v Oracle case drew criticism from some quarters, however. The Federal Circuit last year held that the Java API naming scheme was copyrightable and not an ineligible "system or method of operation".

Vox labelled the Federal Circuit’s ruling last year "a disaster for the software industry", saying it would lead to more compatibility problems and less innovation. Google argued that it only copied the aspects of the Java system that were needed to allow Android to run Java software, and that this was legal because copyright law does not protect functional characteristics.

The Obama administration had also been torn on the matter but eventually advised the court to turn down the petition, finding it flawed and meritless.

The FOSS Patents blog had a good, detailed post this week on the Supreme Court turning down the petition.

"Google brought its cert petition at a stage at which it could also have awaited the outcome in district court before asking the top U.S. court to revive the non-copyrightability defense," wrote Florian Mueller. "But Google presumably knows that its "fair use" defense, which is the only liability-related question left to address on remand, is not really strong. While the Federal Circuit declined to resolve this question in its entirety and deferred to the district court for factual findings, it still provided some guidance that helps Oracle."

He noted that the denial shows why Orrick attorney Joshua Rosenkranz is dubbed the "Defibrillator", for bringing cases back to life from the dead.

Mueller said: "…the sizable litigation caravan that had gone from California to Washington DC for the appellate proceedings – where an amazing reversal of fortunes occurred, with Oracle now having the upper hand – can finally head back all the way to the West. There, "fair use" will be the topic du jour. And, provided that Oracle wins (which I've always believed it will), remedies. This means injunctive relief more than anything else. The strategic implications are not described accurately by portraying this as a billion-dollar case."


Taylor Swift back in the IP news

Pop star Taylor has been dominating IP headlines this year. She received much attention for keeping her music off Spotify as well as her proactive approach to acquiring gTLDs. More recently, she received attention for demanding Apple pay performers during the free trial period of its new streaming service.

This week she was back in the news, but this time for more negative reasons. The Irish Times revealed that it was not running a photo of Taylor Swift’s concert in Dublin this week because the terms of the photographic contract were "too restrictive".

The newspaper said Swift’s photograph authorization contract includes restrictions such as a "one-time-only" use limit on publishing the photo that elapses at the end of the year. Any other use of the photo would require written consent with Swift reserving the right to use the photographs for publicity and promotion.

The Irish Times deputy picture editor Brenda Fitzsimons said: "The terms and conditions of the contract are exceedingly restrictive and just not feasible for a working newspaper and website."

British freelance photographer Jason Sheldon wrote an open letter this week in which he said: "Photographers don’t ask for your music for free. Please don’t ask us to provide you with your marketing material for free."


Section 101 judgments at the half-year stage

Docket Navigator this week revealed the success rates of Section 101 summary judgment motions in district courts in the first half of 2015. In a blog post, Docket Navigator said district courts ruled on 22 motions for summary judgment of invalidity based on Section 101 in the first six months of the year.

"That is only one fewer decision than all of 2014," said the post.

Fourteen – or 63.6% – of the 2015 motions were granted, five (22.7%) were denied, and three (13.6%) were partially granted and partially denied.

Docket Navigator subscribers can view a motion Success report showing the success rates of these motions since 2008 here.




Eli Lilly fined in Brazil

Brazilian authorities have fined Eli Lilly about $11 million for "sham" patent litigation, reports The Wall Street Journal. The litigation was intended to extend exclusivity for the Gemzar cancer treatment, said the Administrative Counsel for Economic Defense, known as CADE.

The drug maker was accused of filing "contradictory and misleading" lawsuits in 2007 and 2008 that created an unfair monopoly for the treatment. The agency said that Eli Lilly omitted relevant information from its patent request referring to a change in scope of the patent from being related exclusively to the production process for the drug’s active ingredient. The agency also said that Eli Lilly omitted relevant information from an administrative process overseen by another agency.

"The respondent practiced sham litigation by filing a lawsuit against [the Brazilian Health Surveillance Agency] in order to obtain the exclusive rights over the sales of Gemzar," said Ana Frazao, CADE reporting commissioner, in a statement.

The Wall Street Journal quoted an Eli Lilly as saying the company strongly disagrees with the ruling. The newspaper said the ruling comes at a time of increasing scrutiny in various countries of pharmaceutical practices seen as limiting the availability of generic drugs.

Also on the blog this week:

IP Stars listings and analysis now fully available

Sponsored statement: Prepare for post-AIA filings this fall

In our news and analysis this week:

Alibaba-Kugou dispute may signal China digital shift

Automotive industry tries to put the brakes on NPEs

Biotech companies consider trade secrets as alternative to patents

California Northern District: ITC ruling does not preclude lawsuit

Lessons in advocacy from Judge Alex Kozinski

An obscure rule gets time in spotlight

Unitary Patent renewal fees agreed

Comments






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Managing IP

ManagingIP

ManagingIP profile

@schestowitz Well, we do what we think is most appropriate & useful for our readers. Can't speak for others.

Apr 28 2017 04:43 ·  reply ·  retweet ·  favourite
ManagingIP profile

@schestowitz It's true that we have sought interviews with AMBA (not specifically on UPC) and permission was refused by the EPO president.

Apr 28 2017 04:41 ·  reply ·  retweet ·  favourite
ManagingIP profile

@schestowitz However, we have also given space to voices critical of UPC & Unitary Patent, eg in Spain & Poland https://t.co/QXiPQknzDg

Apr 28 2017 04:38 ·  reply ·  retweet ·  favourite

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