Intellectual Property Rights - News Letter Issue No:2020--084
June 2020 Issue
1. Genetic Lesion Segregation Found in Chemically Induced Tumors in Mice
Genetic instability has long been recognized as a hallmark of oncogenesis and tumor progres- sion. The phenomenon was first identified cytogenetically, most famously by the Philadelphia chromosome in chronic myelogenous leukemia (see Wapner, The Philadelphia Chromosome: A Genetic Mystery, a Lethal Cancer, and the Improbable Invention of a Lifesaving Treatment), later appreciated as the result of a translocation between a human protooncogene (c-abl) with a heterologous sequence that resulted in development of the disease. But it was later recog- nized by histological analysts that cancer cells could be characterized by a host of aneu- ploidies, including chromosome loss and duplication as well as changes in fine structure fea- tures of the More
2. An Analysis of a Failed Biosimilar Antitrust Class Action
On June 10th, Judge Manish S. Shah, U.S. District Court Judge for the Northern District of Illi- nois, dismissed (without prejudice) a class action lawsuit against AbbVie and AbbVie Biotech- nology Ltd. by consumer groups, drug wholesalers, and unions (including the City of Baltimore, Miami Police Department insurance trust fund, and a Minnesota-based employee welfare bene- fits plan for workers in the pipe trade industries), alleging antitrust violations under Sections 1 and 2 of the Sherman Antitrust Act, as well as corresponding state law causes of action for Alaska, California, District of Columbia, Georgia, Illinois, Nevada, New Hampshire, North Caro- lina, Utah, and West Virginia, over AbbVie's blockbuster biologic drug, Humira. More
3. Supreme Court Ruling on at Least Five Patent-Related Cases
Supreme Court has granted certiorari (commonly referred to as cert) to five patent-related cases this term, which will result in three oral arguments likely to be decided before the end of the term. Two of the cases were consolidated into a single argument, while another case was subject to a Grant-Vacate-and-Remand (GVR) order, meaning the previous decision by the United States Court of Appeals for the Federal Circuit (CAFC) has been vacated by the Supreme Court and the case must be reconsidered by the CAFC. There are also over 20 pending Petitions for Writ of Certiorari, which may result in additional patent matters being heard by the Court this term. More
4. Intellectual Property Outlook: Cases and Trends to Follow in 2020
In this four-part series, we take a look forward at the cases, legislation, and other trends that are likely to have a significant impact on intellectual property law and practice in 2020. In the first three parts of the series, we looked at the IP issues currently pending before the Supreme Court, possible changes to the law of patent eligibility, and hot topics surrounding inter partes review proceedings. In this last part of our series, we look at proposed legislation related to intellectual property issues. In particular, we consider: More
5. 2020 Intellectual Property Primer: Cases to Watch this Year
2020 is likely to be a busy and influential year for intellectual property cases before the United States Supreme Court. The Court is expected to make a number of rulings and decisions that are likely to impact the future landscape of copyright, patent, and trademark law. More
6. Marico Limited vs Abhijeet Bhansali (Notice of Motion No. 1094 of 2019 In COMIP No. 596 of 2019)
Marico Ltd., one of India‟s leading FMCG (Fast Moving Consumer Goods) company, had recently filed an application at the Bombay High Court, seeking an interim injunction against Abhijeet Bhansali, a YouTuber/V-Blogger who operates the YouTube channel “Bearded Chokra”. It was al- leged by Marico that Abhijeet Bhansali in his video, made comments disparaging or denigrating Marico‟s Parachute Coconut Oil, thus infringing its trademark “Parachute”. The Bombay High Court while passing an injunction against Abhijeet held that there was unauthorized use of the trademark “Parachute” and under the garb of educating the public one cannot provide misleading information to disparage any product. The court also ordered to take down the YouTube video up- loaded by Abhijeet and emphasised the need for higher responsibility on the part of a social me- dia influencer. More
7.Imagine Marketing Pvt. Ltd. vs Exotic Mile (CS (COMM) 519/2019)
Delhi High Court has passed an interim injunction against Exotic Mile, an audio-gadgets business firm, for violating the registered trademark “boAt” of Imagine Marketing Pvt. Ltd. Imagine Market- ing is the proprietor of boAt, a well know electronic products supplier in India. It contended that Exotic Mile had dishonestly adopted the trademark “BOULT”, which is phonetically and deceptive- ly similar to “boAt”. Further, it alleged that the usage of the tagline „UNPLUG YOURSELF‟ by Ex- otic Mile was confusingly similar to its tagline „PLUG INTO NIRVANA‟. The Court passed an inter- im injunction restraining Exotic Mile from using the trademark “BOULT” as well as the tagline „UNPLUG YOURSELF‟. More
8. Nike Innovate C.V vs. G.B. Shoe (CS (Comm) No.542/19)
Delhi District Court has passed a permanent injunction against three footwear companies, G.B. Shoe, Vishal Footwear and New Hira Shoes, located in Agra, the Defendants, for violating the trademark(s) of Nike, the celebrated sports shoes manufacturer. Since its adoption in 1971, Nike has been using its brand name continuously worldwide and is the registered trademark holder of marks such as NIKE, SWOOSH (logo), etc. Based on the evidence and the reports submitted by the appointed Local Commissioner, the Court noted that the Defendants‟ adoption and usage is creating undue enrichment by creating confusion in the minds of customers. The Court further or- dered the Defendants to pay Nike a nominal damage of Rs. 50,000 each. More
9. Lacoste S.A vs. Suresh Kumar Sharma (CS (Comm) No.534/19)
Lacoste S.A., the French clothing major, had filed an application for a permanent injunction in the Delhi District Court against Suresh Kumar Sharma. Lacoste contends that Suresh Kumar Shar- ma was selling shirts bearing the “Lacoste” mark and thus infringing its trademark and passing off. The Court observed that Suresh Kumar Sharma had no right to use the “Lacoste” mark and fur- ther held that his actions led to undue enrichment and created confusion amongst the general public. Thus, the court granted permanent injunction restraining Suresh Kumar Sharma from us- ing the “Lacoste” mark. More
10. Puma Se vs. Mr. Vikas Jindal (CS No.552/2019)
Puma, a well-known German sports footwear brand, filed an application at the Patiala House Court, New Delhi, for a permanent injunction against Vikas Jindal, a Ludhiana based business proprietor, for using its trademark „PUMA‟ and the „PUMA‟ logo. Puma further contended that Vikas was liable for misrepresenting and deriving unfair advantage by using the „PUMA‟ trademark in his products. Vi- kas Jindal did not file a reply to the suit. Based on the submissions and evidenc- es provided by Puma, the Court passed an ex-parte permanent injunction against Vikas Jindal and ordered him to pay nominal damages of Rupees 50,000 for sell- ing products using the „PUMA‟ trademark. More
11. Bajaj Electricals Limited vs. Gourav Bajaj & Anr (Interim Application no. 1 of 2020)
Bajaj Electricals, part of the Bajaj conglomerates of businesses and industries, filed an application at the Bombay High Court for an interim injunction against Gourav Bajaj („Defendant‟), an individ- ual who operates two retail electrical appliance stores at Abohar, Punjab. Gourav Bajaj was op- erating his stores under the trade names „Apna Bajaj Store‟ & „Bajaj Excellent‟. Additionally, the Defendant is also said to operate a website under the impugned domain www.apnabajajstore.com. Bajaj Electricals in this suit contended that the mark BAJAJ has been declared as a well-known trademark by the Bombay High Court in 1987. Bajaj further contended that even the defense of personal name use is of no consequence as the very adoption and use of the impugned mark by the Defendant is dishonest as the expression “Powered By: BAJAJ” was used upon the impugned label, suggesting that they are sponsored and/or endorsed by Bajaj.
Despite several notices, no one appeared on behalf of the Defendant. Based on the submissions and evidence provided by Bajaj, the Court passed an interim injunction against the Defendant from using the trademarks „Apna Bajaj Store‟ & „Bajaj Excellent‟ and the impugned domain www.apnabajajstore.com. More
12. Mexichem UK Limited v Honeywell International, Inc [2020] EWCA Civ 473, 1 April 2020
The Court of Appeal handed down a judgment in Mexichem UK Ltd v Honeywell International Inc [2020] EWCA Civ 473 upholding the decision of Hacon J refusing to strike out Arrow decla- rations in a claim relating to a revocation of a number of Honeywell‟s patents. The decision confirms that there is no threshold or level of particularity at which an Arrow declaration ought to be formulated. The Court also recognised that, although the question of obviousness cannot be sliced up into a number of individual steps, there may be instances where such step-by- step analysis was appropriate, following the Supreme Court judgment in Actavis v ICOS. More
13. EPO and UKIPO Refuse AI-Invented Patent Applications
“The [UKIPO] Hearing Officer said the Office accepted that DABUS created the inventions in the patent applications, but that as it was a machine and not a natural person, it could not be regard- ed as an inventor. Moreover, „there appears to be no law that allows for the transfer of ownership of the invention from the inventor to the owner in this case, as the inventor itself cannot hold property.‟” More
14. Biogen Falls on Patent Loss of MS Drug Tecfidera to Mylan
Mylan had challenged Biogen‟s „514 patent, which covers the treatment of multiple sclerosis with 480mg dose of dimethyl fumarate (DMF), the active ingredient of Tecfidera. The patent provides market exclusivity to the medicine in the United States until 2028.We remind investors that in Feb- ruary, the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office (USPTO) had ruled in favor of Biogen over an inter partes review (IPR) filed by Mylan relating to the same patent of Tecfidera. More
15. Patents Court refuses to grant interim injunction in pharmaceutical patents case
The case is Neurim Pharmaceuticals (1991) Limited and Flynn Pharma Limited v Generics UK Limited (t/a Mylan) [2020] EWHC 1362 (Pat) and concerns prolonged release melatonin to im- prove the restorative quality of sleep in a patient suffering from primary insomnia characterised by non-restorative sleep. Neurim markets the originator product under the brand name Circadin. More recently, Neurim has developed a paediatric version of prolonged release melatonin, under the brand name Slenyto.Neurim also owns a second medical use patent which protects its prod- ucts (the “Patent”). The Patent was filed on 12 August 2002 and claims priority from 14 August 2001. If not revoked sooner, the Patent will expire on 12 August 2022, i.e. some two years and three months' time from the date of the interim judgment. The Patent was granted by the EPO in May 2017. Mylan opposed the patent post-grant and the EPO Opposition Division revoked it in November 2019. That decision has been appealed at the EPO, and the Technical Board of Ap- peal may not provide a decision until after the Patent has expired. More
16. Federal Circuit Ruling in Patent Case Expands 'Obviousness' Doctrine
The Federal Circuit held that a prima facie case of obviousness can be established by prior art ranges for solutions of structurally and functionally similar compounds that overlap with a claimed range in Valeant Pharmaceuticals International, Inc. v. Mylan Pharmaceuticals Inc. (Fed. Cir. April 8, 2020). Although it was well-established that a prima facie case of obviousness “typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art,” this case extends that doctrine to instances where the cited prior art does not involve the same compound, but instead involves similar compounds. More More
17. An Analysis of a Failed Biosimilar Antitrust Class Action
On June 10th, Judge Manish S. Shah, U.S. District Court Judge for the Northern District of Illinois, dismissed (without prejudice) a class action lawsuit against AbbVie and AbbVie Biotechnology Ltd. by consumer groups, drug wholesalers, and unions (including the City of Baltimore, Miami Police Department insurance trust fund, and a Minnesota-based employee welfare benefits plan for work- ers in the pipe trade industries), alleging antitrust violations under Sections 1 and 2 of the Sherman Antitrust Act, as well as corresponding state law causes of action for Alaska, California, District of Columbia, Georgia, Illinois, Nevada, New Hampshire, North Carolina, Utah, and West Virginia, over AbbVie's blockbuster biologic drug, Humira. More
18. Supreme Court Denies Another Certiorari Petition on Doctrine of Equivalents
The Federal Circuit during 2019 and 2020 has issued a spate of decisions on the proper application of the Doctrine of Equivalents (see, e.g., UCB, Inc. v. Watson Laboratories Inc. and Galderma La- boratories, L.P. v. Amneal Pharmaceuticals LLC) and its related limiting doctrines, prosecution his- tory estoppel (Amgen Inc. v. Coherus BioSciences Inc. and Pharma Tech Solutions, Inc. v. Lifescan, Inc.) and the dedication-disclosure doctrine (Eagle Pharmaceuticals Inc. v. Slayback Pharma LLC and Indivior Inc. v. Dr. Reddy's Laboratories, S.A.). There then followed, like night fol- lows day, a slew of petitions for certiorari. The Supreme Court has already denied cert in Actavis Laboratories FL, Inc. v. Nalproprion Pharmaceuticals, Inc., and on Monday, the Court showed equa. More
19. Fish & Richardson Wins Major ITC Patent Case for JinkoSolar
Fish & Richardson, has obtained a major International Trade Commission (ITC) ruling for JinkoSolar Hold- ing Co., Ltd. (NYSE: JKS), one of the largest and most innovative solar module manufacturers in the world, in a patent infringement case brought against JinkoSolar by competitor Hanwha Q CELLS. On June 3, 2020, the ITC issued its final determination that JinkoSolar's products do not infringe Hanwha's patent. More
20. Merck Can't Wipe Out Microspherix's PTAB Win
The Federal Circuit on Tuesday found that substantial evidence supported Patent Trial and Ap- peal Board decisions that Merck Sharp & Dohme Corp. failed to show three Microspherix LLC patents covering implantable medical devices were invalid. More
21. Amneal Pharmaceuticals LLC v. Almirall, LLC (Fed. 2020)
In Amneal Pharmacueticals LLC v. Almirall, LLC, the Federal Circuit professed to address a ques- tion it had not considered before: whether attorney's fees and a exceptional case determination was available for fees and costs incurred when a patent owner defended an inter partes review (IPR) challenge before the Patent Trial and Appeal Board. The Court decided they were not, based on Court of Claims and Patent Appeals (CCPA) precedent and its plain meaning reading of the statute. More
22. £220M NHS Suit Over Drug Patent Heads To Supreme Court
The U.K.'s top court on Monday agreed to hear the National Health Service's £220 million ($280 million) lawsuit against an international pharmaceutical company accused of blocking sales of a generic drug for high blood pressure despite allegedly knowing its branded, patented medication was invalid.
23. EMED Technologies Corp. v. Repro-Med Systems, Inc. (Fed. Cir. 2020)
Federal Circuit affirmed a decision by the U.S. District Court for the Eastern District of Texas granting summary judgment in favor of Repro-Med Systems, Inc., finding that Re- pro-Med did not infringe U.S. Patent No. 8,961,476. EMED Technologies Corp., which owns the '476 patent, had filed suit against Repro-Med, asserting that Repro-Med's safety needle devices infringed the '476 patent.The '476 patent is directed to medical needle de- vices with built-in safety structures to protect users from the sharp tip of the medical nee- dle, with the specification describing various embodiments, and the relevant embodiment being depicted in Figure 10: More
24. Teva Wins Court Ruling Against Opiant, Emergent Bio On Narcan Nasal Spray
The U.S. District Court for the District of New Jersey has ruled in favor of Teva Pharmaceutical Industries Ltd. (TEVA) in a patent infringement lawsuit regarding a generic version of Narcan nasal spray for the treatment of opioid overdose. More