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US patent litigation, Google, Oracle, Brexit, Led Zeppelin, McDonald’s, top patent filers – the week in IP

Unified Patents h1 165

A drop in US patent lawsuit filing, a Google motion to sanction Oracle’s counsel, Brexit trade mark applications, the suspension of the lawyer that took on Led Zeppelin in a copyright case, an EU General Court rejection of an application to register MACCOFFEE, and IPO’s list of the top organisations granted patents were in the IP headlines in the past week

Also on the blog in the past week were:

Guest post: Brexit and SEPs

Guest post: Why evidence and experts matter

We’ve also posted the following articles in the past week (log in via subscription or free trial):

Brexit 10 days on: latest developments

Online courts and the future of IP litigation

UPC scenario 5: Enforcing a patent inside and outside the UPC

UPC preparations will go ahead

First DTSA decision entered, as new trade secrets cases roll in

Bascom analysis: Is the Federal Circuit going soft on software patents?

Unitary Patent and UPC: A progress report (June 2016)

Marrakesh Treaty brought into force by Canada accession

UK IP Minister talks about UPC post-Brexit result

Apple’s latest China setback could encourage patent trolls

IP in Asia 2016: the key takeaways 

US patent litigation down in first half

US patent litigation in the first half of 2016 was down on previous years, according to an analysis from Unified Patents.

Unified Patents H1 chart
Source: Unified Patents

The 2,187 cases filed in the first half was down 31% on the 3,152 in the first half of 2015 and down 20% on the 2,726 in the first half of 2014. However, litigation in the second quarter (1,240 cases) increased 31% over the first quarter (947 cases). The figure was below the second-quarter figures in 2015 (1,711) and 2014 (1,470), which were each the busiest quarters in those years.

Unified Patents, a company that protects members against non-practicing entities in specific technology areas, projected the number of patent litigation filings for the whole of 2016 to reach approximately 4,300 in 2016.

It also noted that filing at the Patent Trial and Appeal Board fell in the first half. The 825 cases in the first half of this year was down from 957 in the first half of 2015, but up from 744 in the first half of 2014. 

Brexit trade mark applications

Inevitably, people have started filing to register Brexit trade marks. The Wall Street Journal reports that Boston Beer, which makes Sam Adams, is seeking a trade mark for Brexit for the name of a hard cider.

Brexit-168.

The Journal reported other Brexit trade mark applications are also pending, including one for clothing and another for dietary supplements.

According to Banana IP, the terms “English Brexit Tea” and “Brexit Tea” have been applied for trade mark registration before the UK Intellectual Property Office (IPO) by Leisure Fun & Toys, a German company, for tea, tea leaves, a tea cosy, kettles and tea pots. Brexit has been filed for trade mark registration before the UK IPO by an Australian resident for biscuits and baked goods.

Google seeks sanction of Oracle’s lawyer

Google has filed a new request for a judge to sanction Oracle’s lawyer, Annette Hurst of Orrick, reports Fortune.

Google new logo

In a filing in the Northern District of California, King & Spalding’s Bruce Baber renewed Google’s request for approval to file a motion for a finding of civil contempt and the imposition of sanctions against Oracle and its outside counsel.

In court in January Hurst revealed that Google pays Apple $1 billion a year to include its search bar on the iPhone. It has also been reported that Google pays up to 34% of the revenue it gets from iPhone searches to Apple.

The motion says: “Oracle’s disclosures … reveal a profound disregard for this Court’s Protective Order and for other parties’ confidential information. Google and third party Apple were harmed by Oracle’s counsel’s disclosure regarding the terms of a significant and confidential commercial agreement.”

Fortune quoted an Oracle spokeswoman assaying Oracle will oppose the “frivolous motion”.

Attorney from Led Zeppelin trial suspended

In other news involving lawyers in high-profile IP cases, the attorney that tried to take on Led Zeppelin in the “Stairway to Heaven” trial has been suspended from practicing law for three months.

According to The Hollywood Reporter, an appellate panel upheld a recommended suspension of Francis Malofiy for violating “various rules of conduct” during a copyright trial over Usher’s “Bad Girl”. Last year, a district court panel found he had got an unrepresented co-defendant to sign an affidavit without consulting a lawyer by not revealing that their relationship was adversarial. In 2014, Judge Paul Diamond issued sanctions and ordered him to pay $28,000 in costs.

Malofiy, of law firm Francis Alexander, appears a colourful character. Bloomberg recently ran a profile of him labelling him a “bar-brawling lawyer”.

He represented Michael Skidmore, a Trustee for the estate of the band Spirit’s guitarist, Randy "California" Wolfe, in the suit against Led Zeppelin, claiming that the band’s famous "Stairway to Heaven" was a rip off of Spirit’s "Taurus". In June, a jury decided there was no copyright infringement. Malofiy said in a statement provided to Managing IP the decision to not allow recorded versions of the songs to be played "effectively tied our hands behind our back," and called Zeppelin’s win a "technicality".

The Hollywood Reporter noted that Malofiy had more than 100 sustained objections from Judge Gary Klausner during the trial.

McDonald’s loving EU trade mark ruling

The EU’s General Court has upheld a European Union Intellectual Property Office rejection of an application to register MACCOFFEE as an EU trade mark, reports Reuters.

Singapore company Future Enterprises had been hoping to use the trade mark for food and beverage products.

"The repute of McDonald's trade marks makes it possible to prevent the registration, for foods or beverages, of trade marks combining the prefix 'Mac' or 'Mc' with the name of a foodstuff or beverage," said the General Court.

It added: “"Indeed, it is highly probable that MACCOFFEE rides on the coat tails of McDonald's in order to benefit from its power of attraction, its reputation and its prestige, and exploits, without paying any financial compensation, the marketing effort made by McDonald's in order to create and maintain its image.”

The verdict can be appealed to the EU Court of Justice.

2015’s biggest US patent filers

The IPO has released its annual list of the top 300 organisations granted US patents in 2015.

The top three of IBM, Samsung and Canon remains unchanged from the previous year’s list. However, Sony and Microsoft fell from fourth and fifth to 10th and ninth, respectively.   

Other changes include Qualcomm moving up from eighth to fourth, and Google moving from sixth to fifth.

Organisations granted US patents in 2015

Rank

Organisation

2015 patents

Percent change

from 2014

1

International Business Machines

7,440

-0.5

2

Samsung Electronics

5,059

2.5

3

Canon

4,239

1.6

4

Qualcomm

3,209

18.6

5

Google

3,195

10.9

6

Toshiba

2,793

-2.0

7

General Electric

2,629

14.7

8

Intel

2,625

33.6

9

Microsoft

2,471

-17.2

10

Sony

2,448

-23.8

Source: IPO

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