IP Top 10 January – A Spoonful of Sugar Helps the Medicine Go Down?

2020 is well and truly underway, and there hasn't been a lull in proceedings! The same can be said for the world of IP. In this IP Top 10 we look at some of the developments slightly off the beaten track, which give an indication of IP's broader impact on the world at large.

The big stories in this month's edition of the IP Top 10 concern two confectionary giants and Amazon's potential foray into the pharmacy market.

Nintendo receive 1-UP over iLife Technologies in Patent Claim

In January a Federal Judge overturned a ruling for patent infringement against Nintendo, who were initially ordered to pay claimants iLife Technologies damages of $10 million.

Nintendo was met with numerous lawsuits for patent infringement when it introduced the Wii, specifically in relation to the innovative motion-sensor technology which made the console such a success.

A previous ruling handed down in 2017 was overturned this month as the iLife patent at the heart of the claim has been found to be invalid.

Judge Barbara Lynn ruled claim 1 of the patent to be invalid under 35 U.S.C. § 101, surmising “It is directed to an abstract idea and fails to recite any inventive concept sufficient to transform the abstract idea into a patent-eligible invention.”

The Verge have the lore here.

Amazon's trade mark registrations a bitter pill to swallow for pharmaceutical retailers?

Ever the disruptor, Amazon has filed to register trade marks for ‘Amazon Pharmacy’ in multiple jurisdictions, including the UK, Australia, and the United States.

Applied for on the 9^th January, this movement towards the pharmaceutical industry is the latest step in an expansion which previously saw Amazon acquire the American medication delivery start-up ‘PillPack’.

The US market for prescription drugs alone is worth over $300 million a year.

Given Amazon’s logistical strengths, it is unsurprising that they have identified this industry as one which poses great potential for future growth.

CNBC has the story here.

‘Psilocybin’ registration marks trippy US trade mark development

Demonstrating the intriguing relationship between the trade mark system and public morality, a California-based confectionery company announced this month that they had successfully registered the word mark ‘Psilocybin’, the fundamental psychoactive component of so-called "magic mushrooms".

Whilst the mark is registered under class 41 in relation to educational materials and the like, it has been criticised by legalisation advocates as an attempt to take ownership of a natural substance that is currently at the heart of a national debate.

The move has also been noted as a clear indication that people are trying to stake early claims to intellectual property, where they anticipate the existence of a legal market in the coming years.

Greenmarket report sees the vision here.

Duke and Duchess of Sussex fall short of royal flush trade mark

The hostilities experienced by the Duke and Duchess of Sussex in reaction to their announcement to step back as senior members of the royal family have translated into trade mark terms this month.

The royals found that their ‘Sussex Royal’ trade mark application was met with a notice of threatened opposition filed at the Intellectual Property Office.

Since the objection was first publicised, numerous further notices have been filed, and applications to register ‘Sussex Royal’ have flooded international intellectual property offices.

As with all things Harry and Meghan, it is likely that this is not the last we will hear in relation to this matter.

The BBC have the rundown here.

Haribo not so sweet in cease and desist dispute

In January it was reported that a small company selling alcoholic sweets online, Ositos & co, had received a cease-and-desist letter from confectionary giant Haribo.

The sweets in question are bear-shaped in appearance and contain 15% alcohol.

Haribo argues that the alcoholic sweets are overwhelmingly similar to its gummy-bear trade mark, to an extent that “cannot be explained by mere chance”, despite its admission that it has no intention of entering the alcoholic sweet market.

This is not the first time that Haribo has made headlines whilst protecting its IP rights, having famously lost a legal challenge against rival confectioner Lindt & Spruengli to stop it from producing its gold chocolate bears.

The Guardian take a closer look at this bitter dispute here.

Tech companies rally to vanquish patent trolls

Apple, Microsoft and BMW (among other tech and motor companies) have called on the EU to strengthen its position in relation to "patent trolls", who they argue are stifling innovation by effectively exploiting the system.

So-called patent trolls are roundly derided for buying up patents with the intention of cynically profiteering through license fees and protracted litigation.

Writing to the European Commission, the group of 35 like-minded companies called for a softening of approach within EU courts, where they allege blanket bans are often issued on products where only a specific patent was found to be infringing.

The group argues that a failure to change the patent system will render Europe unable to compete globally in the next phase of technological growth.

The very specifically named Competition Policy International reports here.

UK will not implement controversial copyright directive

In an early high-profile divergence from EU law, the UK Government is set to no longer implement the EU Copyright Directive. The directive has been the subject of much discussion and concern, with several legislative "flash-points" causing consternation.

During a parliamentary Q&A, the UK Minister for Universities, Science, Research and Innovation, Chris Skidmore, outlined “the United Kingdom will not be required to implement the Directive, and the Government has no plans to do so... any future changes to the UK copyright framework will be considered as part of the usual domestic policy process.”

The Copyright Directive itself has not passed without controversy, having already been tweaked to reassure critics of the supposed ‘link tax’ and ‘upload filter’.

BBC outlines the salient points and significance here.

Amiri firmly wearing the trousers in trade dress dispute

Amiri has launched a complaint against alleged “serial infringer” Zara on the basis of a pair of biker jeans which they allege bear “obvious and overwhelming similarities” to its renowned MX2 jeans.

Amiri is a luxury brand named after Mike Amira, whose jeans sell at a premium.

The lawsuit, registered in California federal court, contends that the Spanish fashion chain is “blatantly and unlawfully misappropriating [Amiri’s] valuable trade dress rights” in the jeans by marketing its own lower quality version with “the same distinctive pleated leather panel detailing, side zippered thigh pockets, zippered knee closures, and skinny fit washed denim.”

Amiri are claiming for: trade dress infringement, dilution, and unfair competition.

They seek monetary damages along with injunctive relief to bar Zara from the continued sale of any of the allegedly infringing articles.  

The Fashion Law have the skinny here.

Apple on the ropes in WiLAN bout

On 24^th January, Quaterhill, who own WiLAN, announced an update in relation to their patent infringement case against Apple.

In a previous trial verdict, the jury found that Apple had infringed WiLAN’s patents and it was subsequently ordered to pay $145.1 million in damages.

In a subsequent hearing, the findings of the jury were affirmed by the court. However, another trial was ordered after the judge agreed with Apple that WiLAN had used a flawed method to calculate the value of the damages.

Following this trial, Quarterhill stated; “In a damages-only re-trial in the United States District Court for the Southern District of California commenced on January 21, 2020, the jury rendered its verdict today awarding WiLAN $85.23 million in damages owed to WiLAN by Apple Inc. for the infringement of WiLAN’s US patent Nos 8,457,145 and 8,537,757.”

WiLAN alleged that Apple had incorporated voice over LTE technology covered by the patents in numerous products, including iPhones ranging from the 6 to the 7 Plus.

This represents a rare victory for WiLAN against the tech giant, who they often target as part of their ‘patent monetisation’ strategy which relies heavily on patent licensing and lawsuits. For Apple, the retrial could be considered a small victory, although it is unlikely to be the last time the two companies clash.

Patently Apple has the nuts and bolts of the story here.

Hershey left tasting sour in trade secret controversy

In another emerging confectionary dispute this month, The Hershey Company has brought an action against the former president of its sub-brand ‘Amplify’ over the alleged theft of trade secrets.

Claims included within the suit filed at the US District Court for the Middle District of Pennsylvania allege that Doug Behrens had “orchestrated a secret plan to steal some of Hershey’s most sensitive trade secrets and confidential business information.”

In the month period between his resignation and final day of employment of the company, it is reported that Behrens sent over 100 Hershey documents from his work email account to his personal account, before wiping all data from his laptop.

Bloomberg Law have the story here.

That's it!

And this is it for our IP Top 10 this month.

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Until next time!​