and Samsung to mediate – again
Judge Lucy Koh of the Northern
District of California on Monday referred Apple and Samsung to
mediation before Magistrate Judge Spero,
reports the Foss Patents blog. The settlement effort has a
November 15 deadline.
The latest development comes a
year after the two parties settled all non-US patent
Florian Mueller commented on the
Foss Patents blog: "I've always said that Apple should get
something, but the longer this dispute has taken, the clearer
it has become that Apple's leverage is limited, and let's not
forget that Apple at some point needs a licence, on FRAND terms
obviously, to Samsung's standard-essential patents."
Is the scope of copyright law expanding?
David Kluft had an interesting post on the Trademark &
Copyright Law blog this week identifying a trend of the
increasing use of copyright law to solve problems not
traditionally seen as copyright problems.
The Foley Hoag partner identified Peta’s
lawsuit filed last week on behalf on behalf of a crested
macaque that took the infamous monkey selfie as an example of
this trend. The suit requests that any profits from the photo
are used solely for the benefit of the monkey’s
community of crested macaques and the preservation of their
"Here, Peta’s real (laudable) concern is not
protecting Naruto’s intellectual property, but his
habitat. Whether or not copyright law will provide the remedy
sought, it is the vehicle being used to put the matter before a
wrote Kluft in the blog post.
As other examples of this trend, Kluft pointed to copyright
law becoming a popular substitute for defamation claims
rendered impotent by the Communications Decency Act, being used
as a bodyguard against a fatwa in Garcia v Google, and being
brought to the fore by a judge to dismiss a case where the
creator of a recipe for a chicken sandwich felt he had not been
Kluft concluded: "So what is going on here? Somehow, the
perception of the potential scope of copyright law has expanded
to the point where it is worth asking 'Are you sure this
isn’t a copyright case?’ just in
In other monkey selfie news, Sarah Jeong on Motherboard had
an entertaining interview with Peta’s general
counsel that skirts close to farce at various points,
including the following exchange:
Does Naruto know about this lawsuit?
Um, the… fact here is that Naruto is unable to come
into court himself and so we are standing as Next Friend.
Your question is silly, frankly. The issue is as
I’ve stated it.
Does Naruto know about his selfies?
have the same response.
delivers on his word
in a blog post, nXn Partner owner Erich Spangenberg
revealed his intention to make publically available
substantially final draft versions of inter partes review
petitions for pharma patents he wanted invalidated.
"My hope is that, via crowd-sourcing or some other way, people
far smarter than me will comment on the petitions and make them
even better," he said. "After the petitions are polished and
suitable for hanging in The Louvre of IPR petitions, perhaps
some person with altruistic motives will file them or maybe a
person that is mean to puppies will file them."
This week Spangenberg
made good on this
by releasing the first draft IPR document. It is for the
Nucynta and Nucynta ER chronic pain medications marketed by
Depomed. He said the price of these medications is about $7,000
a year, up from less than $3,000 when it was first launched in
"Depomed’s business strategy is to buy
lesser-known drugs and then massively increase the price of
those drugs immediately after acquisition," said Spangenberg.
"When Depomed bought the rights to Nucynta and Nucynta ER in
2015 from Johnson & Johnson, the first thing the company
did was raise the price by 44%."
Spangenberg said the ideal filer of the IPR – which
you can download in Word format
here – would be a charitable organisation, law
school or consumer-focused action group. He added that he does
hold a long or short position in Depomed.
Last Friday, Depomed received more-favourable Patent Trial and
Appeal Board news when the Board confirmed the patentability of
all 23 clams of two of its patents in an IPR brought by Endo
Pharmaceuticals related to the Opana ER treatment.
Jim Schoeneck, president and
chief executive officer of Depomed
commented in a statement: "This marks the second favourable
ruling in this quarter where Depomed has defended these same
patents with the prior ruling upholding the 25 contested claims
of these same patents."
Alibaba says open sesame to IP
Envision IP had an
interesting analysis on its Patent Vue blog this week of
Alibaba’s patent portfolio.
It ran the numbers and reckons that in the year since the
Chinese e-commerce company’s $25 billion IPO
– the largest ever – it has strengthened tis
US patent portfolio.
Before the IPO, Envision IP identified 102 US patents and
302 pending US patent applications assigned to the company. The
company in a pre-float filing also revealed it had acquired a
number of Yahoo’s patents in 2013 for $70
After the IPO, the patent research law firm identified 184
US patents assigned to Alibaba, with 22 patent bought from
"The remaining patents appear to be organically obtained;
the result of the company’s own R&D efforts,"
said Envision IP. "In addition, Alibaba owns 342 published,
pending US patent applications."
Alibaba’s US patent portfolio is comprised of
the following areas: 32% search engine, 26% cloud computing,
15% mobile related technologies, 10% message and chat, 9%
security and authentication, and 8% payment processing.
Jay-Z and Kanye win rap copyright battle
Kanye West and Jay-Z have secured a dismissal of a copyright
infringement action brought by musician Joel McDonald in the US
District Court for the Southern District of New York. Mike
Dean, UMG Recordings, Roc-A-Fella Records and Roc Nation were
also defendants in the case.
McDonald claimed the
song "Made in America", from Jay-Z and West’s 2011
Watch the Throne album, infringed McDonald’s
copyright in a song he had written in 2008 with the same
He argued both songs share the same title, his song contains
the lyric "Made in America" while the defendants’
song has the lyric "Made it in America", both songs make
reference to historical figures Malcolm X and Martin Luther
King and appear in the same order, and the songs contain
certain musical similarities.
The defendants, represented by Pryor Cashman, argued that
"Made in America" is not protectable under copyright law as a
title or short phrase, the use of the names Martin Luther King
and Malcolm X is not protectable under copyright law, and
McDonald failed to allege any musical similarities between the
US district judge Alison Nathan granted
a motion to dismiss, finding that the phrase "Made in
America" is not copyrightable as a title or lyric because it is
"too brief, common and unoriginal to create any exclusive right
vested in [McDonald]", copyright cannot be claimed over names
of historical figures, and no substantial musical similarities
between the two songs were plausible argued.
Also on the blog this week:
from the Luxury Brands & Retail Forum
In our news and analysis this week:
rules it cannot review PTAB decisions to
Microsoft settle all patent litigation
institution procedures unfair?
following CJEU’s Kit Kat shape
to the CJEU’s ruling on the Kit Kat
The view from
inside the UPC courtroom
EPO oppositions are
affordable, powerful and increasingly
How the Federal Circuit is changing
Circuit's Section 101 uncertainty
deals MPHJ a blow in its dispute with
PTAB refuses to
sanction Bass, Spangenberg calls for crowdsourcing of
Chief Judge Prost
weighs in on Supreme Court pushback
review - A look at eBay v MercExchange, API supplier liability
and lump sum awards for future damages