Publications / McDermott Newsletters / IP Update, Volume 4, No. 6, June 2001

IP Update, Volume 4, No. 6, June 2001

June 2001

IN THIS ISSUE

Patents/Doctrine of Equivalents

A Biotechnology Patent Is Festo-ed
By John Prince, Ph.D.

Canceling rejected patent claims and replacing the claims with new claims that have narrower limitations will operate as a complete bar to the doctrine of equivalents for the narrowed claims elements. Mycogen Plant Science, Inc., Case No. 00-1127 (Fed. Cir., May 30, 2001).

The agribiotechnology company Mycogen Plant Science and its licensee, Agrigenetics, sued Monsanto, alleging that Monsanto infringed Mycogen’s US Pat. No. 5,380,831 (the ‘831 patent) for "Synthetic Insecticidal Crystal Protein Gene," which is directed to increasing the level of "Bt" protein in plants. The composition of matter claims at issue were for "[a] synthetic gene comprising the DNA sequence presented in Fig. 1, spanning nucleotides 1 through 1793" and ". . . spanning nucleotides 1 through 1833." In modern claiming practice, these would be claims to the narrow SEQ ID NOS. Mycogen had earlier conceded that Monsanto did not literally infringe the composition claims.

The Federal Circuit decided that Monsanto did not infringe under the doctrine of equivalents, holding that for purposes of applying the "complete bar" approach announced last year in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., there is no difference between amending a claim limitation to narrow the claim and replacing the claim with a different claim having a narrower limitation. "We do not discern any legally significant difference between canceling a claim having a broad limitation and replacing it with a claim having a narrower limitation, and amending a claim to narrow a limitation. To do so would place form over substance and would undermine the rules governing prosecution history estoppel laid out in Festo by allowing patent applicants simply to cancel and replace claims for reasons of patentability rather than to amend them."

Accordingly, Mycogen’s composition of matter claims covered only genes having the literally recited DNA sequence and no equivalent genes.

Practice Note: On June 18, 2001, the US Supreme Court agreed to hear Festo's appeal from the Federal Circult decision in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. Ltd. See Intellectual Property Update, Vol. 3, No. 12, December 2000. [Editors]

Patents/Claim Construction

Allegation That a Specification Fails to Disclose Structure Supporting Recited Claim Function Must Be Proven by Clear and Convincing Evidence
By Stephanie Nagel

Vacating a judgment of non-infringement, a panel of the US Court of Appeals for the Federal Circuit has held that the district court erred in concluding that the specification failed to disclose a structure corresponding to the "electronic sensing means." Budde v. Harley Davidson, Inc., Case No. 99-1533, 1534 (Fed. Cir., 5/24/01).

William A. Budde is the owner of US Patent No. 4,955,348 (the ‘348 patent) directed to fuel injection conversion systems for reciprocating engines, including V-twin motorcycle engines such as those used by Harley Davidson. Because it derives needed timing information electronically rather than through an electromagnetic device, the system eliminated the need to mechanically alter the engine and made it possible for the system to be installed on any V-twin engine, regardless of the type of ignition system used.

After a Markman hearing, the lower court construed the meaning of the claim term "electronic sensing means for determining when the ignition system of the engine delivers an electronic pulse to fire each spark plug" and determined that the ‘348 patent failed to disclose a structure that corresponded to the claimed function (as the function had been interpreted by the court). The lower court also determined that the ‘348 patent did disclose structure supporting a "status sensing means" claim element. Budde conceded that he could not prove infringement with the lower court’s claim construction. The district court subsequently entered a judgment of non-infringement.

The Federal Circuit review was limited to whether the two means-plus-function claim elements had been properly construed. In its decision, the Federal Circuit panel imposed a "clear and convincing" evidentiary standard that it must be used when determining whether a means-plus-function claim element has support in the specification:

For a court to hold that a claim containing a means-plus-function limitation lacks a disclosure of structure in the patent specification that performs the claimed function, necessarily means that the court finds the claim in question indefinite, and thus invalid. Because the claims of a patent are afforded a statutory presumption of validity, overcoming the presumption of validity requires that any facts supporting a holding of invalidity must be proved by clear and convincing evidence (emphasis added).

The Federal Circuit panel agreed with Budde that the district court had impermissibly narrowed the recited function based solely on a reading of the summary and the objects of the invention. The Federal Circuit admonished that "the specification must be read as a whole to determine the structure capable of performing the claimed function." The Federal Circuit panel also criticized the failure of the district court to apply this newly required clear and convincing evidence standard to the showing made by Harley Davidson in support of its position that the ‘348 patent did not disclose a structure corresponding to the claimed "electronic sensing means."

Practice Note: This decision leaves open the issue of whether the proponent of a claim construction rendering a patent claim readable on the prior art, or invalid for any other reason, would also be held to a clear and convincing standard at the claim construction stage. If so, it is challenging to reconcile this decision with the recent Federal Circuit decision in Karsten Mfg. v. Cleveland Golf Co. See, Intellectual Property Update, Vol.4, No.4, April 2001.

Patents/Validity

You Can Relax Now—Prozac Claim Held Invalid
By James K. Fitzpatrick, M.D.

In an apparent victory for the depressed, compulsive and anxious consumer, the same panel of the Federal Circuit that had earlier found claim 7 of Eli Lilly’s US Patent No. 4,626,549 invalid, again (this time acting on an en banc reconsideration order) invalidated claim 7 of the ‘549 patent that covers the active ingredient for the popular antidepressant Prozac®. Eli Lilly and Company v. Barr Laboratories, Inc., et al., Case No. 99-1262, Order on Petition for Rehearing En Banc (Fed. Cir., May 30, 2001).

The active ingredient of Prozac is fluoxetine, which inhibits the uptake of the monoamine serotonin into brain neurons. It is believed that depression and other psychological disorders are due, in part, to an inadequacy of serotonin in the brain. Thus, by inhibiting the uptake of serotonin, fluoxetine helps treat depression by increasing the availability of brain serotonin.

On January 10, 1974, Eli Lilly filed the ‘379 application containing claims for a class of compounds along with therapeutic methods and pharmaceutical compositions for using these compounds. Lilly later obtained six patents from its ‘379 application, including the ‘549 patent, which issued on December 2, 1986. Claim 7 of the ‘549 patent was directed to a method of blocking the uptake of monoamines by brain neurons in animals. Lilly also filed a separate application on April 8, 1983, nine years after the ‘379 application, which on May 20, 1986, matured into US Patent No. 4,590,213. Claim 1 of the ‘213 patent was directed to a method for treating human anxiety by administering an effective amount of fluoxetine.

In December 1995, Barr filed an Abbreviated New Drug Application (ANDA) seeking to market fluoxetine as an antidepressant. Shortly thereafter, Lilly brought an infringement claim against Barr, including an allegation of infringement of claim 7 of the ‘549 patent. Barr filed a motion for summary judgment claiming, among other things, that claim 7 was invalid due to obvious type double patenting of claim 1 of the ‘213 patent. Lilly disclaimed the earlier issued ‘213 patent. The district court denied Barr’s motion stating that there is no "reliable scientific explanation that claim 7 of the ‘549 patent constitutes merely the later scientific explanation of what has already been claimed in the patents that came before."

The Federal Circuit reversed, holding claim 7 of the ‘549 patent to be invalid for double patenting over claim 1 of the ‘213 patent. The court ignored Lilly’s ‘213 patent disclaimer, stating that "a patent owner cannot avoid double patenting by disclaiming the earlier patent." Based on scientific expert testimony that the natural result flowing from administration of fluoxetine is inhibition of serotonin uptake, the court then held claim 1 of the ‘213 patent, which covers a method of treating human anxiety, to anticipate claim 7 of the ‘549 patent, which covers the blocking serotonin uptake in animal neurons, noting that a reference is anticipatory if it includes an inherent characteristic that is the "natural result" flowing from the invention.

In dissent, Judge Newman noted that the ‘549 patent was cited by Lilly as a prior art reference for the ‘213 patent and was successfully argued before the PTO. In Judge Newman’s opinion, the doctrine of double patenting is inapplicable when one patent is prior art for the other patent. Judge Newman also noted that "every biological property is a natural and inherent result of the chemical structure for which it arises, whether or not it has been discovered and that to negate the patentability of a discovery of biological activity because it is ‘the natural result’ of the chemical compound can have powerful consequences for the patentability of biological inventions."

Practice Note: This unusual circumstance of a second decision by a US Federal Circuit panel stemming from the same appeal resulted from the Court’s acceptance of Lilly’s petition for a rehearing en banc, vacating the panel’s original decision (reported at 222 F.3d 973 ( Fed. Cir. 2000)) and reassigning the opinion to the same panel for a revision of the double patenting section. Because Judge Newman was not a member of the panel, her dissent (which goes to the substance of the panel’s double patenting analysis) is at least procedurally a dissent from the en banc order.

Patent/Litigation

Absent Proof of Control or Collusion, Injunction Does Not Extend to Acts of Related Companies
By John Fuisz

A permanent injunction prohibiting the facilitation of infringing acts was not violated when the enjoined defendants failed to take affirmative action to stop a related company from committing infringing acts. Tegal Corporation v. Tokyo Electron Company, Ltd. and Tokyo Electron America, Inc., Case No. 00-1239 (Fed. Cir. May 14, 2001). The Federal Circuit held that the enjoined parties had no affirmative duty to prevent infringement by a related company and that, absent evidence of control or collusion between the enjoined parties and the alleged contemnor, there is no basis for a finding of contempt.

The Federal Circuit decision resulted from an appeal by Tokyo Electron America (TEA) of a lower court order holding TEA in contempt for violating a permanent injunction. The lower court prohibited TEA and its parent company Tokyo Electron Company (TEL) from infringing US Patent No. 4,464,223. The permanent injunction prohibited TEA and TEL from engaging in:

acts that constitute contributory infringement or inducement to infringement, such as participating in, rendering assistance, or any way facilitating infringing acts by related corporations or corporate affiliates or corporate parents, or conducting field service, testing or spare parts replacement or maintenance for customers that own infringing etching machines which were sold after October 1997.

Tokyo Electron Management (TEM) was not a party in the underlying litigation, but it is a wholly owned subsidiary of Tokyo Electron Yamanashita (TEY), which is, in turn, a wholly owned subsidiary of Tokyo Electron Company (TEL). After entry of the permanent injunction, TEM serviced two etchers sold after October 1997. In addition, it was undisputed that just prior to the injunction TEA provided around-the-clock support to its customers, whereas immediately after the injunction TEM provided around-the-clock support. The lower court found TEA in contempt for not stopping TEM’s alleged infringement of the ‘223 patent.

In reversing the lower court’s decision, the Federal Circuit clarified that "facilitating" infringement requires an affirmative act. Absent evidence of control or collusion, permitting a party through non-action to commit infringing acts is not "facilitating infringement." The Federal Circuit noted that there was no evidence that TEA transferred employees or customer information to TEM or that TEA or TEL controlled TEM. The Federal Circuit reaffirmed that inaction of a parent company in the face of infringement by a subsidiary does not constitute direct infringement or inducement to infringement.

Patent/Validity

Proof Negating Suppression or Concealment of Prior Invention Under § 102(g) May Be Shown by Activities Outside the United States
By Christopher Bright

In an opinion written by Judge Lourie, a panel of the US Court of Appeals for the Federal Circuit has now decided two issues not previously addressed by the Court: the burden assessed to proof of prior invention under § 102(g) and whether proof used to negate an inference of suppression or concealment is geographically restricted to the United States. Apotex USA, Inc. v. Merck & Co., Inc., Case No. 00-1272 (Fed. Cir. June 8, 2001). The Court held that once a party challenging the validity of a patent proves by clear and convincing evidence that the invention was made in this country by a prior inventor, "the burden of production shifts to the patentee to produce evidence sufficient to create a genuine issue of material fact as to whether the prior inventor suppressed or concealed the invention ... [But] [o]nce the patentee has satisfied its burden ... the party alleging invalidity under § 102(g) must rebut any alleged suppressed or concealment with clear and convincing evidence to the contrary." The court further held that proof negating suppression or concealment of a prior invention under § 102(g) may be shown by activities outside of the United States.

Apotex sued Merck for infringement of two patents directed to a process for making a stable solid formulation of enalapril sodium, a drug used in the treatment of high blood pressure. Merck had been manufacturing enalapril sodium tablets since 1983. It disclosed the ingredients in a 1988 edition of a French pharmaceutical dictionary and in product monographs in Canada from 1992 to 1994. In March 1994 Merck disclosed the process for manufacturing its enalapril sodium product in court in connection with a suit alleging infringement by Apotex of Merck’s Canadian patent directed to the enalapril sodium compound. Based on these activities, which occurred prior to the Apotex inventor’s conception of the patented process at issue in the US litigation, the district court granted Merck’s motion for summary judgment of invalidity under § 102(g).The Federal Circuit affirmed, rejecting Apotex’s argument that only activities in the United States can be used to rebut an inference of suppression or concealment. The Court concluded that the geographical restriction "‘in this country’ [in § 102(g)] only applied to the country where ‘the invention was made’" and did not modify or geographically restrict the clause "abandoned, suppressed, or concealed." To the contrary, the court found that "proof negating suppression or concealment is not limited to activities occurring within the United States."

Practice Note: The corollary to the court’s holding in this case is its continued acknowledgment of the statutory language that acts of prior invention under § 102(g), i.e., where the invention was "made," can only be established by activities "in this country."

Patents/Intervening Rights/Damages

Only "Specific Thing" in Existence at Grant of Reissue Patent Qualifies for Absolute Intervening Rights; Speculative Damages Will Not Survive Review by the Federal Circuit
By Matthew Weil

In a case that may remind many readers of the issue-spotting exercises of their law school days, the US Federal Circuit tackled transition issues regarding amended Patent and Trademark Office (PTO) regulations: absolute versus equitable intervening rights; timely moving for Judgment as a Matter of Law (JMOL) at the close of all evidence to preserve the right to appeal; the power of the trial court to order a new trial even absent a JMOL motion; and the adequacy of evidence in support of an award by a jury of lost future profits damages. Shockley v. Arcan, Inc., Case Nos. 99-1580, 99-1603 (Fed. Cir., May 9, 2001).

On a motion for summary judgment, the district court for the District of South Carolina upheld the validity of Mr. Shockley’s patent on a "mechanic’s creeper"—a sort of split back board on wheels that can support an auto mechanic in either a sitting or a laying position for working on and under cars. At trial, the jury awarded Mr. Shockley’s company $791,070 in lost past profits and $3,000,000 in lost future profits. Defying the conventional wisdom that typically counsels narrowly focussed appeals, the defendants appealed on a potpourri of issues They lost on most of these issues, but may have found one worth $3,000,000.

Intervening Rights

The patent laws provide a reissue procedure for correcting "defective" patents which can result in a grant of claims broad enough to cover subject matter that if applied for during the first two years after a patent issues, would not have been covered by the original patent. "Intervening rights" refers to the partial or total immunity from patent liability, which may be claimed by those who begin infringing activity before the reissue patent grant.

In Shockley, the patentholder discovered a mistake in the issued patent that substantially narrowed the scope of patent coverage and filed for reissue before the second anniversary of the grant. In the two and a half years it took to wrestle a reissue patent out of the PTO, the defendants had already begun marketing their infringing creepers, but had not yet actually manufactured the creepers in question. The district court declined to recognize intervening rights. On appeal, the Federal Circuit affirmed, explaining that after the grant of a reissue patent an accused infringer has the unquestioned right to use, offer to sell or sell only those devices (the "specific thing") that actually existed on the date of the reissue grant. These are "absolute" intervening rights. Where, as here however, the device had not yet been manufactured, the court must decide whether to grant "equitable" intervening rights, i.e., the right to make, use, offer to sell or sell "to the extent and under such terms as the court deems equitable for the protection of investments made or business commenced before the grant of the reissue." The Federal Circuit affirmed the findings of the district court that, on the facts of this case, equity did not favor the accused infringers.

Preserving Issues for Appeal and Challenging Speculative Damages

Applying regional circuit law, the Federal Circuit declined to entertain an appeal as to the sufficiency of evidence on damages because the defendants had moved for JMOL on this subject at the close of all evidence but before the issue went to the jury. Though appeal of the award was thus precluded, the court found that remittitur of damages was not. Reviewing de novo the evidence in support of the award of $3,000,000 in future damages, the Court determined the award was unacceptably speculative and excessive. (The damages expert had had accepted plaintiffs’ counsel’s estimate of likely future sales "without factual underpinnings," making his entire opinion essential arbitrary.) Thus, the Federal Circuit vacated the award and remanded for with instructions that the district court offer the plaintiff its choice of $791,070 or a new trial on damages.

Trademarks/Persona

She Just Doesn’t See
By Robert Kramer

The US Court of Appeals for the Second Circuit recently held that Astrud Oliveira (a.k.a. Astrud Gilberto) was not entitled to a trademark in her "signature performace" of a song, even if she had become identified with the performance. Astrud Oliveira v. Frito-Lay, Inc., Case No. 00-7492 (2d Cir. May 8, 2001). Oliveira sued Frito-Lay for its use of her performance of "The Girl from Ipanema" in a 1996 commercial advertising Baked Lays along with famous models and Miss Piggy.

Tall and tan and young and lovely
The girl from Ipanema goes walking

Oliveira alleged that Frito-Lay’s use of this 1964 song — in which she had sung the copyrighted English lyrics of Norman Gimbel to the copyrighted composition of Antonio Carlos Jobim — violated her federal common law trademark rights in her performance of what has become her "signature song." In doing so, she alleged that Frito-Lay capitalized on her valuable reputation and goodwill in a way likely to cause confusion or to deceive as her affiliation, connection or association with Frito-Lay, or as to her sponsorship or approval of the potato chips.

Oh, but he watches so sadly
How can he tell her he loves her

Sympathetic to her claim, the Court wrote that it could "see no reason why a musical composition should be ineligible to serve" as a trademark to the extent that it identifies goods or services. However, the Court also noted, that a performer could acquire a trademark in a performance that is meant to identify the performer as the good or service would be without precedent. To recognize such a "previously unknown" right would be "profoundly disruptive to commerce. Numerous artists who could assert claims similar to Gilberto’s would bring suit against entities that had paid bona fide license fees to all known holders of rights." Defendants in this case had already paid more than $200,000 for licenses from Gimbel and Jobim.

Yes, he would give his heart gladly.

But each day as she walks to the sea
She looks straight ahead, not at he

The Second Circuit also vacated the district court’s summary dismissal of state law unfair competition, unjust enrichment and right of publicity claims for improperly assuming facts adverse to the plaintiff, and remanded the case for dismissal of those claims without prejudice so they could be refiled in state court.

And when she passes, he smiles,
but she doesn’t see.
She just doesn’t see.
No, she just doesn’t see.



Trademark/Paris Convention

Circuits Split: Eleventh Circuit Finds Paris Convention Creates No Substantive Rights
By Paul Devinsky

Affirming a dismissal for lack of subject matter jurisdiction, the US Court of Appeals for the 11th Circuit has now held that while §44 of the Lanham Act incorporates the Paris Convention, the Paris Convention itself does not create substantive rights beyond those available under the Lanham Act, thus creating a split in authority among the US Circuit Courts. International Cafe S.A.L. v. Hard Rock Cafe International (USA) Inc., Case No. 00-11742 (11th Cir., 5/31/01).

Hard Rock Cafe International (USA) Inc. (HRC), a Florida corporation, licenses Hard Rock Cafe restaurants worldwide. HRC’s Canadian subsidiary, HRC Limited, issues Hard Rock Cafe franchises in countries outside of the United States.

International Cafe S.A.L., a Lebanese corporation, opened a restaurant called the Hard Rock Cafe in Beirut, Lebanon, with the express authorization of HRC Limited. HRC later authorized another Hard Rock Cafe franchise in Beirut and refused to distribute Hard Rock Cafe merchandise to International Cafe’s restaurant. International Cafe sued HRC in Florida, alleging unfair competition under the Lanham Act. The district court granted HRC’s motion to dismiss for lack of subject matter jurisdiction because International Cafe had no trademark rights in the United States.

International Cafe contested the district court’s conclusion that the Paris Convention as adopted in §44 created no additional substantive rights beyond those provided in the Lanham Act and conferred no additional jurisdiction on the court. It argued that §44 of the Lanham Act incorporated the provisions of the Paris Convention governing unfair competition. Citing to the US Second Circuit decision in Vanity Fair Mills Inc. v. T. Eaton Co., International Cafe argued that the Paris Convention ensures that "foreign nationals should be given the same treatment [regarding trademark rights] in each of the member countries as the country makes available to its own citizens."

The Eleventh Circuit held that although §44 incorporates the Paris Convention to some degree, it creates no substantive rights beyond those independently provided in the Lanham Act. Rather, the court found that the Paris Convention only requires "national treatment," which simply means that foreign nationals are to be given the same treatment in each of the member countries as in their own country: "Section 44 gives foreign nationals the same rights and protections provided to US citizens under the Lanham Act without creating a new cause of action for unfair competition."

On the issue of extraterritoriality, the Court, citing the 1952 US Supreme Court case of Steele v. Bulova Watch Co., noted that jurisdiction is only available when the defendant is a US corporation, the foreign activity had substantial effects in the United States and exercising jurisdiction would not interfere with the sovereignty of another nation.

Here the court found that the last two elements of the Bulova Watch test were not met, holding that the royalties HRC received from its subsidiary abroad are insufficient to establish "substantial effects" and that, since civil suits against International Cafe regarding the validity of certain Hard Rock Cafe trademarks are pending in Lebanon, a ruling here might interfere with an inconsistent ruling from a court in Lebanon.

Finally, the court observed that the Paris Convention "is premised on the idea that each nation’s law should only have territorial application." In other words, the source of trademark protection for a foreign national asserting foreign trademark rights rests in its own domestic law, not US law. As analyzed by the Court, International Cafe was not asserting any US trademark right but only that a domestic company is infringing on its rights in a foreign country. According to the Court "HRC’s use of its Hard Rock Cafe trademark in Lebanon is subject to Lebanese law."

Practice Note: Several US courts, including the 9th Circuit, are in apparent disagreement with the Eleventh Circuit on whether the Paris Convention creates a course of action under unfair competition. See, Toho Co. v. Sears, Roebuck Co., 645 F.2d 788, (9th Cir. 1981); General Motors Corp. v. Lopez, 948 F.Supp 684, 1490 (E.D. Mich. 1996); and Maison Lazard et Compagnie v. Manfra, Tordella & Brooks Inc., 585 F.Supp 1286 (DC SNY 1984).

Copyright/Parody

Gone With the What? A Preliminary Injunction in Copyright Action Found to Be a Violation of the First Amendment
By Lisa Stone

The US Court of Appeals for the Eleventh Circuit vacated a district court’s grant of a preliminary injunction in a copyright infringement lawsuit, holding that the lower court’s ruling amounted to an unlawful prior restraint in violation of the First Amendment. Suntrust Bank v. Houghton Mifflin Company, Case No. 01-12200, 2001 U.S. App. LEXIS 10802 (11th Cir. 2001).

The owners of the copyright in the novel Gone With The Wind brought suit against the author of The Wind Done Gone, a work that tells the story of Cynara, the illegitimate daughter of Planter, a plantation owner, and Mammy, the slave who cares for his children. Plaintiff alleged that The Wind Done Gone was an unauthorized sequel to Gone With the Wind and sought a temporary restraining order and a preliminary injunction enjoining further publication and distribution of the novel.

The district court granted the preliminary injunction, finding that the plaintiff had a valid copyright in Gone With the Wind and had established a likelihood of success on the merits of the copyright infringement claim because the two novels were substantially similar in protected expression. Specifically, the district court found that The Wind Done Gone copied, almost verbatim in many instances, the characters, character traits, scenes, setting, physical descriptions and plot of Gone With the Wind. The lower court rejected the defendant’s fair use defense of parody, finding that while The Wind Done Gone was at least in part transformative, the statutory fair use factors and intrinsic equitable considerations weighed in favor of a finding of copyright infringement. Finally, the court found that the threatened injury to plaintiff outweighed the damage the proposed injunction might cause to the defendant, and the public interest of preservation of a copyright holder’s ownership interest outweighed the First Amendment interest of access to The Wind Done Gone.

In a single page per curiam opinion, the Eleventh Circuit held that the district court’s entry of the preliminary injunction was an abuse of discretion. Explaining that a preliminary injunction is an extraordinary and drastic remedy that should not be granted unless the movant clearly carries its burden of persuasion, the Court concluded that the owners of the copyright to Gone With the Wind had failed to make this critical showing. The court further determined that the district court’s ruling amounted to an unlawful prior restraint in violation of the First Amendment.

Practice Note: The Court noted that a comprehensive opinion would follow.

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