December 20, 2011, by Mandour & Associates, APC

San Diego – On December 13th, Google cruised away with a driverless car patent. U.S. Patent 8,078,349 covers devices and methods for allowing a vehicle to transfer from a conventional driving mode into an autonomous driving mode.

Most importantly, the car can potentially self-park on a preset parking strip. Google wants to equip the vehicle with an optical or radio sensor to detect a parking strip and a computer data processing system. The parking strip, located on the ground, will also be embedded with a sensor. The sensor could resemble a one-dimensional radio tag or bar code. Alternatively, it could resemble a two-dimensional bar code consisting of a white background with a black pattern.

To switch the vehicle to autonomous mode, a driver will park on the strip. The car’s sensors will detect the strip sensor, triggering an indicator that provides data such as a URL, coordinates or a physical address that the car can read. It may also allow a driver to program a preset route that it can follow. The route can be stored in the car’s memory database.

Google test cars have already clocked in 200,000 autonomous miles. This feature may prove useful in heavy traffic. It may also allow drivers to navigate tight tolerances, such as parking in a warehouse or a dealership lot.

The current model is currently too expensive for a general market, however Google expects developments in sensor technology to progress quickly. Apparently Nevada agrees. It has already amended state laws to allow autonomous cars on its roads.

December 12, 2011, by Mandour & Associates, APC

San Diego – Watson, the IBM computer famous for winning a game of Jeopardy against Ken Jennings, may now have its supercomputer capabilities put to use in the patent world.

IBM has implemented new software into the computer called the Strategic IP Insight Platform (SSIP) that allows Watson to search through peer reviewed medical articles and pharmaceutical patents. The SSIP software enables Watson to identify the chemical compounds in this vast array of information and generate a chemical compound database. Further, Watson also catalogs the chemical compounds in the database to include other relevant information such as the inventors, the patent term, and the companies or assignees who own the chemical compound and their finances.

As an example of Watson’s capabilities, it searched through 4.7 million patents and 11 million articles dated from 1976 to 2000, and created a database of 2.5 million chemical compounds. IBM has since donated this database to the National Institutes of Health to allow scientists to access information that would otherwise be very costly and time consuming to get.

From this great potential with Watson also comes an ethical dilemma. On one side, Watson could identify potential drug targets that could lead to improved research and development for new pharmaceutical drugs. On the flip side, Watson could target vulnerable companies who own lucrative patents and pass this information onto “patent trolls” leading to increased litigation and restrictive licensing practices.

IBM has yet to state how they will utilize Watson. But how IBM utilizes Watson for its own benefit may give an indication. By re-tooling Watson’s software, IBM could search through the vast amount of computer-related patents and articles available. IBM owns 50,000 patents and filed for 6,000 in 2010 alone. They stand to benefit immensely from Watson if they so choose.

Even national patent offices may stand to benefit from Watson in the long run. Watson has the potential to search through prior art patents and articles faster and more efficiently than human examiners, resulting in decreased laime for obtaining a patent.

December 1, 2011, by Mandour & Associates, APC

San Diego – Samsung has prevailed in its appeal to lift the preliminary injunction banning sales of the Samsung Galaxy Tablet in Australia. Competitor and iPad maker Apple initially filed the action for a preliminary injunction against Samsung, alleging that Samsung’s Galaxy Tablet infringed patented touchscreen technology owned by Apple and used on its iPad tablet. After Apple won the temporary ban, Samsung appealed.

The Federal Court of Australia, ruling on Samsung’s appeal, recently lifted the ban allowing Samsung’s Galaxy to enter the Australian market. Samsung may now sell the Galaxy Tablet in Australia beginning Friday, December 2. The Federal Court of Australia reasoned, in part, that due to the short life of technology such as tablets, banning the Samsung Galaxy without a full hearing on the merits was unfair, especially with so much money at stake during the Christmas season.

In Australia, as in the United States, a preliminary injunction or temporary ban may be granted without a full hearing if the moving party can demonstrate a high probability of success on the merits of the case and significant harm if the ban is not granted. Here, the Australian court that originally heard the case found that Apple met these requirements and issued the preliminary injunction banning sales of the Samsung tablet. Samsung elected to appeal the decision rather than hold a full hearing on the merits of the case. The appellate court however, citing considerations of fairness, overturned the decision allowing Samsung to enter the market.

Samsung and Apple have been bitter rivals in the tablet and smartphone war, opposing each other in litigation in more than ten countries including the United States. While the Australian dispute focused on touchscreen technology, the United States design patent action focused on the non-functional aesthetic aspects of the tablets. In that dispute, a U.S. Federal District Court recently held that while Samsung infringed Apple’s design patent for the iPad, Apple must prove that its design patent is valid.

November 16, 2011, by Mandour & Associates, APC

San Diego – A federal judge in a San Diego district court recently held that a jury award in a patent infringement action against Microsoft totaling $70 million was excessive and not supported by substantial evidence. District court judge Marilyn Huff has ordered either that the damage award be reduced or that Microsoft opt to re-try the case.

The action was filed by French telecommunications leader Alcatel-Lucent alleging that Microsoft’s Outlook software, sold as part of the Microsoft Office suite, infringed on a patent covering a touch screen method of data entry. Alcatel argued that Outlook’s calendaring software used its method patent to allow users to enter data into their calendars.

The jury issued a verdict for Alcatel, finding that Microsoft had committed patent infringement and ordering Microsoft to pay a royalty of $70 million, apparently based on the number of infringing Microsoft Office licenses sold. The $70 million figure ordered by the jury was based on the 109 million licenses of Office issued by Microsoft during the period of infringement. However, that figure amounts to a per unit cost of $67 for the Microsoft Outlook product alone.

Upon Microsoft’s motion for a new trial, Judge Huff ruled that the jury’s verdict was excessive, as no reasonable jury could conclude that Microsoft Outlook by itself was worth $67 of the price of the entire Microsoft Office suite which also includes Word, Excel, and PowerPoint. A valuation of $67 for Outlook would leave Excel, Word, and PowerPoint with a combined value of only $31. Instead, the court concluded that the highest value supported by substantial evidence for Microsoft Outlook was $24.55. This would cut the highest possible award to $26.3 million.

Finding that the award was excessive, the court will allow Microsoft to elect to re-try the case. Microsoft may also pay the reduced damages award of $26.3 million to avoid re-litigating the matter.

November 10, 2011, by Mandour & Associates, APC

San Diego – Internet software company BASCOM Global Internet Services, Inc. recently received a favorable jury verdict finding that AOL infringed patents owned by BASCOM. The case was brought by plaintiff BASCOM concerning allegedly infringing use of BASCOM’s patents involving internet filtering technology by defendant AOL. After a weeklong trial, the jury awarded $10,000,000 to BASCOM as a royalty for AOL’s past infringement.

BASCOM provides internet filtering programs and technology to schools and educational bodies designed to block adult entertainment, pornographic, and other content. BASCOM alleged that AOL used BASCOM’s patented filtering technology as a part of AOL’s own internet service. BASCOM’s president, Peter Cirasole claimed during his trial testimony that AOL and other leading companies refused to negotiate with BASCOM, believing that such a small company could not secure enforcement of its patents against competing industry giants.

When a patent is registered, the owner has the exclusive right to make, sell, use, or import the patented article or process. Patent infringement occurs when another party makes, sells, uses, or imports the patented invention or a product manufactured using the patented process. Upon a finding of liability for patent infringement, the plaintiff may be awarded a royalty for use of the patent, an injunction barring further use, damages, and attorney’s fees.

In this case, the weeklong jury trial came to an end with the jury upholding the BASCOM patent as valid and enforceable. The jury also found that AOL had infringed the internet content filtering patent registered with the USPTO. Based on its finding of liability, the jury ordered that AOL pay $10,000,000 in royalties for its infringing use of the BASCOM patent.

AOL, previously America Online, is an internet media company and was one of the world’s largest internet services providers of dial-up internet. At one time, AOL provided internet services to more than 30 million users.

November 4, 2011, by Mandour & Associates, APC

San Diego – Human Genome Sciences, Inc., a biopharmaceutical company that uses human DNA sequences to develop protein and antibody drugs, recently received a ruling in its favor by the British Supreme Court in a patent dispute with Eli Lilly & Co. The dispute concerned the validity of a European patent for a gene sequence for use in developing treatments for individuals with immune diseases. Indiana based Eli Lilly and Co. initially contested the European patent owned by Human Genome on the grounds that the patent was too vague in describing its potential uses and that, if upheld, the patent would stifle research in the area of gene sequencing.

The Human Genome patent at issue was granted by the European Patent Office. The European Patent Office grants patents to inventors in 38 member countries. Patents issued by the Office are not European Union wide and must be defended in each member country.

Here, Maryland based Human Genome initially received a European patent in 2005 for a gene sequence to create a neutrokine alpha protein. The protein is a cytokine known as a Tumor Necrosis Factor protein. These proteins are involved in initiating systemic inflammation and facilitating an increase or decrease in plasma concentration in reaction to such inflammation. Human Genome, partnered with GlaxoSmithKline, planned to use the patented gene sequence to develop its Lupus drug Benlysta.

However, the Human Genome patent had been found invalid by a lower British court. Upon motion by Eli Lilly, a previous ruling in the case had invalidated the patent based on arguments from Eli Lilly that the claimed uses of the synthesized protein were too vague. A crucial element of a European patent is a designated industrial use, similar to a patent claim in the U.S. Eli Lilly alleged that rather than designating a specific industrial use, the Human Genome patent had merely listed potential uses for the gene sequence.

Upon review by the Supreme Court, judges reversed the ruling and upheld the validity of the Human Genome patent. Supreme Court Judge Robert Walker claimed that the ruling, reinstating the Human Genome patent, would prevent a chilling effect on biopharmaceutical research in the U.K. and Europe.

November 2, 2011, by Mandour & Associates, APC

San Diego – Smartphone manufacturer Motorola Mobility, who was recently purchased by Google, has received a total of $228 million in cash and licensing fees from an unnamed company for use of certain patents. Analysts are speculating that the company in question is Blackberry-maker Research in Motion (RIM.)

In a recent SEC filing, Motorola announced that in June of this year, it had entered into a settlement and licensing agreement with a company to resolve all outstanding legal disputes between them. Records indicate that in January 2010, Motorola filed a complaint with the United States International Trade Commission accusing Research in Motion of engaging in unfair trade practices by the importation and sale of RIM products that allegedly infringe on five Motorola patents.

A spokesperson for Motorola Mobility declined to share any information on the identity of the mystery company, however both Motorola and RIM announced in June that they had entered into a similar agreement. The agreement states that the two companies will share license rights to a number of unnamed patents that covered aspects of 2G, 3G, 4G, 802.11, and wireless email technology.

“The agreement includes provisions for an upfront payment of $175 million from the other company to [Motorola Mobility], future royalties to be paid by the other company to [Motorola Mobility] for the license of certain intellectual property, and the transfer of certain patents between the companies,” said the SEC statement.

The legal settlement announced in June between Motorola and Research in Motion came nearly two months before Google made public its plans to purchase Motorola Mobility, a subject also covered in the SEC filing. Motorola indicated that the Merger with Google might have a “negative impact” due to “intensifying litigation or increasing new legal claims from competitors and other third parties, particularly as companies vigorously pursue and protect their intellectual property rights with patent litigation.”

Motorola Mobility also claimed that the merger may be hampered due to uncertainty of the outcome from employees and customers alike.

November 2, 2011, by Mandour & Associates, APC

San Diego – Twitter received a jury verdict in its favor on Monday October 31, 2011 in a patent infringement trial held in the Eastern District of Virginia.

The action (VS Technologies v. Twitter Inc., 11cv43) was originally brought by Virginia patent attorney Dinesh Agarwal who claimed he had invented an interactive web program that had allegedly been implemented by Twitter to create its popular social networking site.

Dinesh Agarwal and his closely held VS Technologies LLC owned U.S. Patent No. 6,408,309 issued in 2002 for an interactive web program “creating an interactive community of famous people.” Agarwal claimed to have invented and patented technology used by Twitter to create its “Browse Interests” feature. Agarwal designed this feature to allow users to keep up with their favorite celebrities, such as musicians and actors, or to discover other users having similar interests. Agarwal and VS Technologies alleged in the suit against Twitter that the social networking giant had infringed the 2002 patent owned by VS. In the action, Agarwal sought over eight million dollars in damages.

To prevail in an action for patent infringement, the plaintiff must first own a valid patent. To comprise a valid patent, the patented article must be novel, non-obvious, and useful. The novelty requirements dictates that the patent cannot exist in the so called “prior art.” In other words, others cannot be using the patented article or process at the time of “invention” by the patent holder.

In this case, Twitter argued that the VS Technologies patent was invalid as it existed in the prior art and did not meet the requirements of a valid process patent. Urging the jury to find in its favor, Twitter attorneys cited Bilski v. Kappos and alleged that the VS patent was invalid as it did not meet the Supreme Court’s requirements for a business method or process patent, namely that the patent failed the machine-or-transformation test. Twitter also argued that its social networking system, which includes over 100 million international users, had not used infringing technology but had implemented its own distinct interactive web programs.

Though Twitter is used heavily by the celebrity community, the Norfolk, Virginia jury found in favor of Twitter. Twitter is the world’s largest “microblogging” site and allows users to post “Tweets” of up to 140 characters.

October 31, 2011, by Mandour & Associates, APC

San Diego – The United States Supreme Court denied Barr Laboratories writ of certiorari on October 31, 2011 in Barr Laboratories v. Cancer Research Technology, Ltd. The action arose out of Barr Laboratories’ filing of an Abbreviated New Drug Application (ANDA), or application for approval to produce a generic version of the drug Temodar. Barr Laboratories, a division of Teva Pharmaceutical Industries, Ltd., filed an ANDA to manufacture a generic version of the brain cancer drug Temodar which is currently covered under a patent owned by Cancer Research Technology and licensed to Merck & Co.

The ANDA filing led to an action in a U.S. District Court in Delaware filed by Cancer Research Technology, a British licensor of the Temodar patent to New Jersey based Merck and Co, to enforce the Temodar patent. The Delaware District Court found for Barr Laboratories, holding that the Temodar patent was unenforceable due to incomplete information in the application and that the patent applicant had engaged in delay tactics before the USPTO. The USPTO did not issue the Temodar patent for nine years after receiving the application.

However, that ruling was later overturned by the United States Court of Appeals for the Federal Circuit which found that Barr Laboratories was not harmed by the USPTO’s delay in issuing the patent. The result of the Federal Circuit ruling prevented Barr Laboratories from producing the generic version of Temodar pending further appeal before the U.S. Supreme Court. However the Supreme Court refused to grant certiorari and hear Barr’s appeal. The Supreme Court, which has vast discretion over the cases it hears, refused to grant the appeal without comment.

Barr Laboratories and parent company Teva agreed to withhold its plans to produce a generic version of the brain cancer drug pending the appeals. In exchange for agreeing to withhold production pending the outcome of the case, Barr Laboratories may begin production of a generic version of Temodarin August of 2013. Temodar experienced sales of over one billion dollars in 2010.

October 31, 2011, by Mandour & Associates, APC

San Diego – Last week, Pfizer announced its victory in a patent infringement battle with Teva Pharmaceuticals USA, Inc. in the United States District Court for the Eastern District of Virginia.

“We are pleased that the court recognized the validity and enforceability of our Viagra patent for the treatment of erectile dysfunction,” said Amy Schulman, executive vice president and general counsel for Pfizer. Shulman added, “Protecting the intellectual property rights of our innovative core is critical, and Friday’s court decision acknowledges Teva’s clear violation of our patent rights.”

Friday’s decision from the court, which is subject to appeal, will prevent Teva from receiving approval on a generic form of Viagra until October 2019. Pfizer initially filed its patent infringement lawsuit against Teva in April, 2010.

The lawsuit contends that Pfizer has two patents on sildenafil, which is the technical name for Viagra. The first patent, scheduled to expire in 2012, covers the composition of the drug itself, while the second patent, expiring in 2019, covers its use for erectile dysfunction. Pfizer’s lawsuit alleged that immediately upon expiration of the first patent in March, 2012, Teva intended to market its own generic version of sildenafil for the treatment of erectile dysfunction.

According to the lawsuit, Teva’s doing so would be an infringement of Pfizer’s second patent and would “substantially and irreparably” harm Pfizer.

In addition to barring Teva from selling its version of sildenafil until 2019, Pfizer is also seeking unspecified reimbursement for the alleged damages.

Founded in 1849 by German cousins Charles Pfizer and Charles Erhart, Pfizer is the world’s largest research-based pharmaceutical company, discovering, developing, manufacturing and marketing leading prescriptions such as Lipitor, Lyrica, Diflucan, Viagra, and Celebrex. In 2009, Pfizer pleaded guilty to the largest health care fraud case in U.S. history and received the largest criminal penalty ever given for the illegal marketing of four of its drugs.

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