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Saturday, 22 August 2015

Letter from AmeriKat: Samsung sets sights on Apple Supreme Court fight, Bass's hedge fund model up to bat and Mr Softee takes aim

The AmeriKat, yesterday,
facing down the West and North winds
The winds are here.  Every year, about this time, they come.  First gently, cooling the brows of perspiring commuters.  Then, by late August, they gather speed whipping up unsuspecting skirts and debris into mini-pavement tornadoes.  Outside her office yesterday, the AmeriKat stopped, whiskers alert, facing the winds.  As she did, she shivered -  the summer wind was noticeably chilled.  Looking around, she noticed the emerald intensity of the leaves was fading.   In Lakota (Sioux) culture, there are four directions from which come four winds.  Each direction has its own meaning and significance.  The North, which brings cold winter winds, signifies hardships and trials that must be faced.  The South brings warmth and life and the East brings light and wisdom.  The West signifies the ending of something and is also the source of rain (courtesy of the Thunderbird).  It is fitting, therefore, that the winds that chilled the AmeriKat were coming from the west.  Despite London's mini heatwave today, the AmeriKat is convinced that the winds are bringing the end of summer, if not more.  It may be too early to predict what sort of changes the new season will bring to US IP litigation, but this week's stories show that no cold wind has chilled US IP news.


Apple's design patent - worth
every penny of the $550 million
judgment
Samsung sets its sights on Supreme Court in Apple damages fight:  Last week, the AmeriKat wrote about Samsung's failure to convince the Court of Appeals for the Federal Circuit (CAFC) to rehear the damages action, despite assistance from some pretty powerful friends like Google and Facebook.  As predicted, Samsung is planning to file a writ of certiorari asking the Supreme Court to answer questions in the case which they state are of "enormous importance to patent litigation and the scope of innovation, especially in high-technology industries."  The news came after Samsung filed its Motion to Stay Issuance of Mandate (i.e., stop play) following the CAFC's decision.   However, it could be some time before the US Supreme Court decides whether to agree to hear the case, most next year.  In the meantime, the USPTO has decided to invalidate one of the three Apple design patents at issue (D618,677).  In an ex parte rexamination of D618,677 the USPTO held that the design patent was invalid on several grounds, including obviousness over a combination of several patents and applications, including combinations with an earlier US Design Patent - D546,313 - filed by LG, a patent application filed by Sharp, two Japanese design patents and applications, a Samsung design patent and two Apple design patents (here and here).   If it stands, Samsung may find themselves paying a reduced damages award when the litigation continues.

Will Bass be a fish out of water following next week's
USPTO decision?  
Bass up to bat in next week's USPTO decision:  In a recent post the AmeriKat  mentioned, in passing, the phenomena that is the Kyle Bass patent challenge machine.  Bass, a hedge-fund manager based in Dallas, developed a business model whereby he would file patent validity challenges (namely, by way of Inter Parte Reviews (IPRs)), create information flows in the market by publicizing the challenge and then bet against the patentee's shares.  His target has been pharmaceutical patents which he says have little value save for increasing the price of prescription drugs.  With a 77% chance that a patent is invalidated by an IPR, Bass and his Coalition for Affordable Drugs have so far filed 20 validity challenges.  The first one up for decision by the USPTO is Bass's attack on a dosage regime protecting Acorda's AMPYRA (marketed outside the US by Biogen as FAMPYRA), a multiple sclerosis drug that was the first to be approved by the FDA to improve walking in patients.  Acorda, whose shares fell after each of Bass's filings, argued that Congress never intended the IPR process to be used by hedge funds to affect stocks and get rich.  The pharmaceutical industry also responded by pressing Congress to reform the standing provisions in the America Invents Act in new patent reform legislation (see previous post here).  The USPTO is expected next week to decide whether they will institute a formal review of Acorda's patent and may directly answer the question as to who can file patent challenges.  For more information, see these stories in Bloomberg and the Wall Street Journal.

The Mister Softee jingle, attracting custom since
1956
Mr Softee takes aim at jingle-a-like ice cream vans:  All children have bat-like hearing in the summer.  The first tinkle of a metallic musical note will illicit demands for money for the ice cream truck.  In the US, the most famous brand of ice cream trucks is called Mister Softee.  Despite the name, Mister Softee isn't being all that soft about his IP rights when last Friday the company commenced a trade mark infringement action in New York against a Queens ice cream vendor, Dimitrios Konstantakakos and his company DDD Ice Inc.  Mister Softee alleges that Konstantakako's trucks are playing their 16- note jingle which was granted a trade mark in 1999, but has been in use since 1956 literally attracting custom (for sheet music click here).  According to ABC News, Joe Valerio, a Mister Softee drive, said about the rival Queens undertaking that "[t]hese guys are running around here playing our music, they're not paying the royalties, they're pretty much laughing at Mister Softee." At a fairytale level, there is something a bit ominous about having a trade mark for a jingle that attracts children (and adults) to your location - the Pied-Piper take note.  A Kat pat goes to the AmeriKat's dad (and his commute) for alerting her to this item.

DMCA Notices these
days are adopting a distinctly
Hawthorne-esque quality
DMCA take down notices, every adulterer's dream:  Ashley Madison, a dating website dedicated to assisting purportedly happily married individuals to have affairs, has been fighting a data dump of their customers' information by hackers.  To assist them in the fight, the company has started issuing copyright take down notices under the Digital Millennium Copyright Act (DMCA), including against Twitter, claiming that the sharing of their hacked data infringes their copyright.  Tweets from some reports have also been subject to the request, resulting in further backlash especially in relation to tweets which contain material that is arguably dubiously protected by copyright, as The Guardian reports.  For more on the story and the DMCA notices, see CNN and Chilling Effects.

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