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Sagacious research newsletter-6th sep-2013 - Weekly Intellectual Property Digest
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Sagacious research newsletter-6th sep-2013 - Weekly Intellectual Property Digest


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A weekly IP Digest by Sagacious Research to keep the Intellectual Property fraternity informed about the latest and interesting Intellectual Property news. …

A weekly IP Digest by Sagacious Research to keep the Intellectual Property fraternity informed about the latest and interesting Intellectual Property news.

Sagacious Research is India based Intellectual Property Research & Analytics firm.

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  • 1. © 2007 - 2013 Sagacious Research. All Rights Reserved. The recent report of United States International Trade Commission stated that in FY 2011 record number of intellectual property-related thefts was filed with them. Consequently, there was annual trade secret and intellectual property losses of more than 30 billion dollars. Another revelation is that the business travelers are much more prone to Intellectual Property (IP) theft. The most common mistake that business travelers tend to make is to subconsciously undervalue their data over their device. In fact, there is much more threat to data and information on their Phone, Tablet & Laptop. Business travel is stressful and people out on business work are constantly watched around airports, hotels and convention centers. So, they must adopt such practices that secure their devices from a growing army of operatives working on behalf of foreign governments and competitors and eyeing their data and information. There are certain measures which shall be taken before a journey to substantially limit the likelihood of data loss and, if it does happen, limit the damage that loss causes. There is a dire need for protecting patents, copyrights and trademarks and overall IP assets especially from online stealing and onlint Intellectual Property Management is a must for individuals as well as companies. Ways to decrease risk of IP theft The security of data and intellectual property is everyone‟s responsibility. With this in mind, the tips given here below will greatly assist in keeping business data and intellectual property safe: • Prepare your device for travel for preventing any physical theft-Ask company‟s IT department to install some software that enables you to lock, operate or wipe clean your device remotely and track its position by GPS if it is lost or stolen. S A G A C I O U S U P D A T E S 6 of the Sagacious Research Employees Completed Their 3 Years Term Sagacious Research‟s greatest assets are its employees. We are glad to announce that 6 of our most dedicated employees across all the verticals completed 3 years term this month. We are proud to have attracted & retained some of the best talents by providing ample growth opportunities, trainings and by making them an integral part of the organization‟s mission. Intellectual Property Protection Strategies for Business Travellers United States International Trade Commission stated that in FY 2011 record number of intellectual property-related thefts was filed with them. The losses were valued at 30 billion dollars. Vol- 3, Date: 6th September, 2013 G E N E R A L N E W S Follow Us at: We Believe in Building Trust…
  • 2. © 2007 - 2013 Sagacious Research. All Rights Reserved. • Minimize the amount of data & put controls around that information. Data encryption requires users to enter a PIN on all mobile devices to access the UI & multi-factor authentication. Data can be protected and encrypted with software like TrueCrypt prior to uploading it to cloud storage provider. Ensure HTTPS with a valid certificate protects your data as it is transferred to keep it safe against Wi-Fi sniffers or use the VPN tunnel of your company. This will encrypt all internet activity and give immunity against sniffing while you access your email or cloud-stored data as the data itself is secured before it is transmitted. You can also delete any critical data and put it on a PIN-protected flash drive. • Don‟t use public or free Wi-Fi hotspots anywhere & update at home, not while travelling- It‟s hard to avoid using public Wi-Fi but it should be essentially sidelined by all business travelers. Never think your presence or the information you carry is of no interest to others. • Check for data loss insurance and that your data security practices while traveling are in line with the minimum security protocols demanded by the insurance policy. It is important to realize that Intellectual property (IP) is the key to more R&D investment, competitive advantage and growth in prospering global economy and this very aspect of IP makes it an inviting target for thieves. Thus, better Intellectual Property protection is of great significance and should be a mandatory practice for all, including business travelers. However, software companies will have to ensure that they do not infringe any existing rights. No doubt that the new patent law will reduce the extent of what is patentable compared to the current law, which has no statutory exclusion at all, it is important to understand the practical repercussions of this new law on software companies & their intellectual property in depth. New Zealand‟s intellectual property landscape has remained more or less same in past 50 years and then came this new Patents Act that brings drastic changes to the way all patent applications, embedded software included, will be assessed. The law has provisions for patenting embedded software and now “significantly restricts” what computer software is patentable and what not. Its implication suggests that hardware will be patentable even if it includes a computer that runs software, but a piece of software code that runs on a computer will not stand the patentability criteria. Intellectual Property Office of New Zealand (IPONZ) will now be able to examine patent to determine whether the claims involve an inventive step over existing products and documents or not. It is now unlikely that patent applications will be granted for inventions of suspicious inventiveness. This change is incorporated to benefit, both individual patent applicants and tech firms. In combination with the new requirement to examine for inventive step, IPONZ examiners will be given significant powers to determine whether an invention qualifies for the grant of a patent. However, patent examiners may require some time to get acquainted with this new provision. This is a crucial point, given that examiners had not previously considered these issues. Consequently, there is likelihood that there may be delays and uncertainty in patent grant and securing a patent grant in New Zealand will become a little harder initially. Patent applicants will also have to carefully consider the issue of inventive step when preparing patent specifications and claims. Repercussions of New Zealand Software Patent Ban The legislation will only ban new patent applications and spare existing software patents in New Zealand. Besides, existing software patents would continue to be enforceable for up to 20 years and same is applicable to pending applications filed before effecting of the new provisions in 2014. The New Zealand parliament recently passed a legislation that largely banned patent protection for software to improve the IT-legal system in the nation and drive further innovation. The motion was passed almost unanimously following 5 long years of parliamentary debate. The legislation will only ban new patent applications and spare existing software patents in New Zealand. Besides, existing software patents would continue to be enforceable for up to 20 years and same is applicable to pending applications filed before effecting of the new provisions in 2014.
  • 3. © 2007 - 2013 Sagacious Research. All Rights Reserved. Even once a patent is granted; it will remain susceptible to unlimited re-examination as the new law permits it. Third parties will also be able to request re-examination of an accepted application or granted patent. Also, IPONZ may now reconsider the patentability of the claimed invention at any time during the life of the patent. While, in general, IT professionals, patent legal experts in New Zealand and world over have welcomed the new legislation, there are also reports of software patent ban referred to as “premature” by some experts. It is argued by some that it is irrational to not let somebody patent a computer program but patent other types of computer-implemented inventions. The issue of software patents cannot be ignored and there is more at the core of the new Patent Act of NZ which will surface with time. By that time, we hope that this new law brings New Zealand‟s patent regimen into line with those of other countries and further boost innovation and economic development. This multi-billion dollar deal between Nokia & Microsoft will grant Microsoft a 10-year „Non-exclusive Licensing Rights‟ to Nokia‟s patents. The transaction is expected to be effected in Q1 of 2014, as approval by Nokia shareholders and regulatory authorities is still pending. As per company sources, almost 32K Nokia employees are expected to be transferred to Microsoft, including approx. 4,700 employees based in Finland. Nokia, on the other hand, has plans to dedicatedly focus on network infrastructure and services. Nokia has also bid adieu to its CEO, Stephen Elop, who will be replaced in the interim by Risto Siilasmaa, present Chairman of Board of Nokia. In another trade agreement related to Nokia, in July this year, Nokia Corporation finalized the purchase of Siemen AG‟s 50% stake at whopping EUR 1.7 billion. The transaction is expected to close during Q3 of 2013. Nokia Siemens Networks (NSN), now a wholly owned subsidiary of Nokia, is specialized in providing high-speed mobile broadband services. The unit has stronger earnings than Nokia‟s mobile phone business and has earned a net profit of 8.0 million EUROS in Q2 of 2013, compared to Nokia‟s net loss of 227 million EUROS in the same time span. Nokia to Grant Microsoft 10-year ‘Non-exclusive Licensing Rights’ on its Patents Finland-based Nokia Corporation is all set to sell its mobile phone unit to Microsoft Group for $7.17 billion. Finland-based Nokia Corporation is all set to sell its mobile phone unit to Microsoft Group for $7.17 billion. Of the total purchase, $3.79 billion relates to the purchase of Nokia‟s Devices & Services business, and $1.65 billion to the mutual patent agreement and future options. T E C H N O L O G Y S O M E O T H E R T O P N E W S I N T H I S C A T E G O R Y: Licensing Option Remains Open When Patent Selling Isn‟t Profitable- Establishes Noika-Microsoft . Read: Highlights of 2013 Intellectual Property Attorney Hourly Rate & AFA Affair. Read: Google Owned Motorola to Pay $15M. Read: Steps to be Taken by Small Banks to Minimize Patent Infringement Risks. Read: An Article Guiding Innovators on How to Benefit From Their Inventions. Read:
  • 4. © 2007 - 2013 Sagacious Research. All Rights Reserved. From a long time, Nokia was the global mobile phone market leader but has been overtaken by rivals Samsung and Apple as it struggled to establish winning business models and mobile devices. Unfortunately, in a booming mobile handset market like India, Samsung dethroned Nokia from the top position. Nokia‟s market share dropped down to 27.2% and it landed on No. 2 spot while Samsung rose to top, thanks to its rich product portfolio catering to customers of all budget categories. The results of clinical trials of this drug on a proportion of African-American volunteers, who had characteristics HCV genotype-1 infection and advanced liver damage, are extremely encouraging. As such, sofosbuvir seems like a leader in the whole process of rewriting the standard of care for hepatitis C. Having said that, it is certain that many pharmaceutical companies would want to enjoy rights or patent claims on Intellectual Property (IP) of GiLead or gain considerable royalty from them by initiating legal battles.Recently, on the basis of two patents, Merck ($MRK) had filed a patent infringement suit against GiLead ($GILD) on Aug 31, 2013 seeking 10% royalty on hepatitis C drug sofosbuvir. Gilead rolled out the response by filing a suit in the Northern District of California recently. Merck wanted GiLead to sub-license two of its hepatitis C-related patents and pay 10% royalty on the Net Sales of Licensed Product, its distributors or sub-licensees, including sales of Licensed Product that is co-packaged with one or more other pharmaceutical products, from the first sale of sofosbuvir until the patent expiry within the Licensed Patent Rights. And that‟s just one of several patent legal fights brewing on sofosbuvir. Swiss-drug maker, Roche is also claiming control of sofosbuvir based on a 9-year-old, 168 M dollar partnership with Pharmasset, which Gilead bought for a whopping 11 B dollar to seize complete ownership of sofosbuvir while it was still in mid-stage development. Roche claims that they were the first to invent sofosbuvir and their patent covers metabolites of sofosbuvir and RG7128 and Gilead is just claiming a class of compounds, including these metabolites, in its pending patent application. While, Gilead says that Roche‟s demand is meaningless as the deal ended two years before it acquired the company. Sofosbuvir‟s peak sales are estimated to be hovering around billions and it is surely the most promising drugs in development today. Barclays had pegged it at $3.8 billion and it is being endorsed by NIAID Director and study co-author Dr. Anthony S. Fauci. As such, GiLead will spare no expense in this Intellectual Property battle. Latest Patent Claim over GiLead’s Sofosbuvir by Merck Less taxing Hep-C virus treatment study sponsored by NIH, GiLead’s sofosbuvir combined with ribavirin. There is an urgent need for hepatitis C virus treatments that are less taxing on the pockets of its patient, have fewer side effects and take less time to cure. In such a scenario, NIH-sponsored study of GiLead‟s sofosbuvir combined with ribavirin had demonstrated that this experimental therapy provided a “safe and effective” interferon-free approach for some of the toughest hepatitis C cases. Its overall cure rate is about 70%. L I F E S C I E N C E S S O M E O T H E R T O P N E W S I N T H I S C A T E G O R Y: An Article on How to Choose Fitting Trademark for Digital Products. Read: 41 New Patents to Apple. Read: Nokia Denied European Patent. Read: “Touch & Swipe” Samsung S5 Read:
  • 5. © 2007 - 2013 Sagacious Research. All Rights Reserved. In this ruling, U.S. Supreme Court permitted Federal Trade Commission to bring antitrust lawsuits against big pharmaceutical companies and generic drug manufacturers who participate in a practice called “pay-for-delay.” “Pay-for-delay”, simply put, is a practice that allows the drug companies to enter in agreements variously called exclusion payment, reverse payment, or pay-for-delay settlements and thereby split monopoly profits for the duration of an untested patent. It‟s the brand manufacturer that sues the generic drugmaker for infringement, and then pays money for an agreement not to compete. It is like paying a fee to generic drug manufacturers in exchange for keeping their generic products off the market. This also enables selling of brand- name drugs exclusively at higher prices. An FTC analysis published in 2010 found that “pay-for-delay” practice cost $3.5 billion per year to customers and almost $900 million to government. But the practice continues and after defending pay-for-delay for more than 15 years in court, big pharmaceutical firms has turned to more sophisticated deals & agreements to not compete with their own “authorized generic” for a specified time span. They have come up with several variations of reverse payment deals since then. Federal Trade Commission Statistics reveals that: • 14 reverse payment deals were reached in 2007, • 16 reverse payment deals were reached in 2008, • 19 reverse payment deals were reached in 2009, • 31 reverse payment deals were reached in 2010, • 28 reverse payment deals were reached in 2011 Background: It all started with Hatch-Waxman Act of 1984 was enacted to cut pharmaceutical prescription drug costs by encouraging generic drug makers to challenge brand-name pharmaceutical patents. Hatch-Waxman Act attempted to foster drug innovation and challenges to invalid patents. It preserved monopoly profits that are legal while expediting patent litigation that threatened those profits. Under special rules, a generic drug maker had to certify that an established patent is either invalid or not infringed, and the patent holder then defended its validity in court. Hatch-Waxman Act basically rewarded the first challenger to file for a 180-day period of marketing exclusivity for the generic. It initially worked and revealed the weaknesses of many drug patents. The Federal Trade Commission data reveals that generic challengers prevailed in 73% of the patent cases between 1992 and 2000. Later, however, situation changed and accused infringers enjoyed 75% success rate in 2002. According to a report of a generics trade organization, successful challenges to Prozac, Zantac, Taxol, and Plantinol alone saved consumers more than $9 billion. The problem cropped up because of the fact that many pharmaceutical patents are questionable. Moreover, after generics were introduced, branded manufacturers lost almost 90% of their sales. And as generics entered the market, prices for their drugs fell by about 85%, to roughly 15% compared against branded manufacturer‟s prices. That resulted in an instant surge of pay-for-delay agreements. For instance, Solvay Pharmaceuticals had cut a “Pay-for-delay” deal with generic drug maker Watson (now Actavis) and Paddock for $30 million annually to delay making a generic drug until 2015, five years before it was due to lose exclusivity on its patent. Solvay‟s AndroGel is a daily testosterone replacement therapy. Nokia to Grant Microsoft 10-year ‘Non-exclusive Licensing Rights’ on its Patents Finland-based Nokia Corporation is all set to sell its mobile phone unit to Microsoft Group for $7.17 billion. A recent U.S. Supreme Court decision regarding „Pay-for-Delay‟ lawsuits was overshadowed by other significant decisions viz. same-sex marriage, voting rights, gene patenting, and affirmative action. Consequently, it failed to enter the public radar though it had significant economic impact on US masses, economy & healthcare.
  • 6. © 2007 - 2013 Sagacious Research. All Rights Reserved. The Federal Trade Commission filed an antitrust suit against the Solvay and Actavis deal. Like most antitrust litigation, the Actavis case moved at a glacial pace and took over four years to get to the Supreme Court. Other pay-for-delay cases have lingered on for even longer and this issue has been litigated for almost 15 years. Conclusion: Fortunately, Congress has now recognized this as a problem and identified two complementary approaches to deal with this issue. This is the time when health care costs need to be cut and best services are to be offered to masses and so, pay-for-delay, can‟t reign. awmakers like Sens. Al Franken (D-Minn.) and David Vitter (R-La.) have proposed alternative Hatch-Waxman Act legislation (S.504) to realign the underlying incentives by permitting non-settling generic firms that successfully challenge a patent to enter the market, breaking the bottleneck of these pay for delay deals. Several Consumer Groups, Consumers Union, Consumers Federation of America, Families USA, US PIRG and others have also come out as strong supporters of bills regarding this issue. The practice of pay-for-delay isn‟t any different from illegal practice of price fixing and is most certainly not a shining example of American business principles. Court‟s action comes as a big relief and it is right step in the right direction, but it remains only a small step. It is even advocated that Court‟s decision is a partial victory and the practice needs to be completely banned. Else, FTC will have to file individual, case-by-case lawsuits against pharmaceutical companies. So, not only consumers will suffer by paying more for their medications, they will also have to pay more taxes to subsidize these legal actions. The oil and gas industry in United States of America is worth 680 billion US dollars. It contributes significantly to the U.S. economy as it is nation‟s largest employer and purchasers of goods. Even in a struggling US economy, it continues to provide well-paying jobs & investment growth for millions of Americans and revenue to the government. But the oil and gas sector also faces quite some challenges with rising global energy demand. Though there are extensive opportunities in upstream, midstream, downstream and oilfield services sectors of oil and gas but in changing regulatory environment of this highly competitive sector, managing risks and optimizing performance remains big issues. As such, oil and gas companies in USA need ¬constant innovation to survive in the market and make profits. For them, there is gradually increasing pressure to recover ¬natural resources more efficiently and also reduce its adverse impact on the environment. For obvious reasons, companies have to spend considerable time and expense for research and development. Consequently, as they develop a new technology, it has to be quickly patented as well. Basically, the product of their E N E R G Y USA’sSoaring Oil & Gas Industry Turning into an Intellectual Property Battle Field Over the past 10 years, the number of oil and gas patent applications and patents has risen dramatically. The patent holding oil & gas firms are very well aware that they can use their IP rights to prohibit others from practicing the claimed invention, license technology and thereby increase company revenue substantially. S O M E O T H E R T O P N E W S I N T H I S C A T E G O R Y: Australian Patent Granted to Scancell. Read: Google Patented Scrooling Technology. Read: Analyzing “Warf Stem Cell Challenge”. Read: DNA Freeware May Out-Innovate Patented Genes: Lux Research. Read:
  • 7. © 2007 - 2013 Sagacious Research. All Rights Reserved. ¬efforts generates valuable intellectual property, which certainly is their most important business asset in present times. They can gain enormously from such innovations but at the same time, getting ¬potential returns on their investments is a necessity as it can make or break the economics of their business. Schlumberger Ltd., Halliburton Co. and Baker Hughes Inc., world‟s largest oil service providers and oil and gas sector‟s biggest patent holders are acquiring patents at a rapid pace and also engaging in lawsuits. Statistics reveal that these companies have rushed to patenting and have secured almost double the patents presently as against the earlier decade. Even out-licensing their patents have gained them huge profits as is the case of Exxon Mobil Corp., the company that doubled its revenue from technology it licensed to others. As a matter of fact, over the past 10 years, the number of oil and gas patent applications and patents has risen dramatically. The patent holding oil & gas firms are very well aware that they can use their IP rights to prohibit others from practicing the claimed invention, license technology and thereby increase company revenue substantially. The world‟s four largest oilfield service providers spent a combined US$21.8-billion on research and development since 1997. Baker Hughes earned 368 US patents in 2003, compared to 138 in 2002, Schlumberger earned 588 and Halliburton 301. The oilfield innovations patented in the past few years include inventions relating to lasers to help drill wells, wired drill pipe for high- speed data transfer, and a subsea “glider” robot that delivers gear to the seafloor. These companies are also claiming stakes to new techniques and equipment for hydraulic fracturing, automated drilling and computer software that helps finding oil and gas deposits. As patents of oil and gas companies are rising, battles for attaining supremacy are also rising. In fact, USA‟s billion dollar oil and gas industry is expected to follow the same pattern as smartphone manufacturers and their patent race may lead to a swell of litigation as reported by world‟s largest patent auctioning firm, ICAP Patent Brokerage. As such, there has been large growth in the patent ¬infringement proceedings between oil and gas companies. Patent litigation has cropped up as the new ¬battleground for all small and big oil and gas companies. At least a dozen lawsuits have been filed in federal courts over the past year including world‟s largest oil and gas service companies pitting against one another. The infringement of a patent can have a ¬dramatic impact on a patent holder and so patent ¬litigation can often be critical to the success or ¬failure of their businesses. As such, oil and gas patent litigation, in specific, requires legal counsel with highly specialized skills to exercise applicable laws and thoroughly understand the oil and gas industry and its allied ¬technologies. It is important to understand the best practices to enforce the patents. In certain circumstances, litigation might be ¬avoided and instead a license may be granted to an infringing party in return for a fee or compensation. But as we discussed above that oil and gas ¬industry is immensely competitive, a business deal cannot always be negotiated. So, more and more oil and gas companies are resorting to litigation to stop others from exploiting their intellectual property rights. It is, thus, advised that these companies gather enough knowledge of the patent landscape in oil and gas technology domain. An extensive patent landscape analysis will help them greatly to map where infringement liability risk is there. All this will not only help oil & gas companies in securing their valuable intellectual property but also help them in thriving in this highly competitive industry. It is always better to be prepared as this is just the beginning of a tsunami in the IP battle field of oil and gas sector. There‟s much more to come. S O M E O T H E R T O P N E W S I N T H I S C A T E G O R Y: European Patent Granted to Vystar®. Read: Advenira‟s New Patent to Lower Cost of Making Energy Efficient Buildings. Read: New US Patent to: “Bio-Tec Environmental”. Read: Indian Engineer Granted Patent for Cost Effective Machine That Can Convert Waste Plastic to Fuel. Read:
  • 8. © 2007 - 2013 Sagacious Research. All Rights Reserved. A B O U T S A G A C I O U S Sagacious Research is an ISO Certified India based Global Patent Research & Analytics firm offering cost effective & multi-lingual Patent Searching, Patent Licensing, Patent Alerts & Watches, Patent Drafting, Trademark Searching & Design Searching Services in over 100 countries and in over 16 Asian/European languages. An ISO 9001:2008 and ISO 27001:2005 Certified Company 70+ Techno-legal Experts | 16+ Languages | 100 Countries | 5, 000+ Projects | 100% Returning Clients C O N T A C T S A G A C I O U S R E S E A R C H Germany Kathrin Reinhardt +49 6107 6383 396 United Kingdom Aarti Thakral +44 (0) 203287 5098 Rest of Europe Raphael Joseph +353 125 49910 Australia Steve Johnson +61 3 9028 4017 United States 6387 Fairways Drive Longmont, CO-80503 T: (303) 506-4192 F: (803) 831-1899 India (HQ) 303-B, Enkay Town Plaza, Block-I, Palam Vihar, Gurgaon-122017, Delhi/NCR, India T: +91 124 4033431 F: +91 11 43850700 Web: