Lipitor, fees, U2, make-up, Hooters and humor

December 13, 2004 on 2:48 pm | In Articles |

Time for my latest "IP Memes":  "IP Memes: Lipitor No More — and Other Hot IP Issues"

LIPITOR NO MORE?
In September, IP Memes discussed a request filed by the Public Patent Foundation (PUBPAT) for reexamination of Pfizer’s patent (USPN 5,969,156) covering Lipitor, Pfizer’s extremely profitable cholesterol lowering drug. After examining the reexamination request, the US Patent and Trademark Office agreed with PUBPAT, finding that a substantial new question of patentability existed. As such, the Pfizer patent will be reexamined by examiners at the Patent Office. The Patent Office will consider the new evidence raised by PUBPAT and decide whether or not any of Pfizer’s patent rights in the invention should be canceled. PUBPAT’s Press Release & Previous Meme & Pfizer Patent

HERE A FEE, THERE A FEE, EVERYWHERE A FEE FEE
It’s that time of year again. Time for another USPTO fee increase (to be quickly absorbed by Congress into the general budget). The bill containing the fee increase was signed by President Bush on Wednesday, December 8, 2004. Among the changes, the patent application filing fee will be increased 20+% and split into three different fees (filing fee, search fee, and examination fee), patent applicants with long applications and/or excessive numbers of claims will have to pay additional fees, and small entities who file electronically get an additional 25% discount. Patent practitioners: the fees are effective the day that the Bill is signed, so you might go back and double check that you paid the appropriate fee amount in case you have time to correct the deficiency. AIPLA Summary of Fee Changes & Draft USPTO Fee Sheet & Promote the Progress Blog Post

REVERSED WITH AN ORDER TO KISS AND MAKE UP
It’s not often that we get an IP case from the Supreme Court, but last week was an exception. In KP PERMANENT MAKE-UP, INC. v. LASTING IMPRESSION I, INC., ET AL., the Registrant (Lasting) of the trademark MICRO COLOR was sued by a competitor (KP) for a declaratory judgment of noninfringement (KP wanted to use "microcolor" in its advertising). KP had claimed that its use was a fair use. The District Court found for KP. On appeal, the Ninth Circuit reversed the District Court’s ruling, finding that it was error for the District Court to have addressed the fair use defense without delving into the matter of possible confusion on the part of consumers about the origin of KP’s goods. The Supreme Court (as it frequently does) overturned the Ninth Circuit ruling, finding that "[a] party raising the statutory affirmative defense of fair use to a claim of trademark infringement does not have a burden to negate any likelihood that the practice complained of will confuse consumers about the origin of the goods or services affected." Supreme Court Opinion & Trademark Blog Post

U2 DOESN’T LIKE WHAT IT FOUND ON EBAY
Back in 1991, a musical group named Negativland combined U2’s hit song "I Still Haven’t Found What I’m Looking For" with a number of recordings of Casey Kasem’s voice to create a parody song called "U2." U2/Island Records was not impressed and filed suit. Negativland eventually settled out of court. Recently, an eBay auction appeared offering for sale (along with the entire story of the dispute) one of the new special edition U2 iPods. This particular U2 iPod contains a number of the Negativland CDs, and is also accompanied by physical copies of the Negativland CDs. Ebay, noting that "an intellectual-property rights owner notified us … that [the] listing infringes the rights owner’s copyright, trademark or other rights," quickly canceled the auction. Wired Article & eBay Auction & Negativland Song IN MP3 Format & Official U2 iPod Site

HOOTER’S ATTEMPTED MONOPOLY OF ITS RESTAURANT THEME THWARTED
The Hooters restaurant chain recently sued to shut down a rival restaurant (Ker’s WingHouse) that was allegedly infringing on Hooter’s intellectual property by opening a restaurant wherein scantily clad waitresses served food (including chicken wings). The Florida District Court judge found that "no reasonable juror" would be confused, dismissing the case before trial. Instead of receiving the $4 million sought, Hooters was ordered to pay Ker’s $1.4 million dollars in damages. No word yet on whether Hooters will appeal. Kansas City Star Article & May it Please the Court Blog Post

THANK GOD IT’S MONDAY
It’s Monday. Why not start the week off with links to two intellectual property humor sites. Patently Silly & IP Funny Blog

About the Author
Stephen M. Nipper is a registered patent attorney with Dykas, Shaver & Nipper. Stephen’s practice includes patent prosecution, trademark protection, and patent litigation, with emphasis in agricultural arts, biological and chemical sciences, pharmaceuticals, mechanical arts, as well as computer and Internet related technologies. He also writes the Necessity’s Progeny patent law blog. You can contact Stephen via e-mail (s@dykaslaw.com) or telephone (208-345-1122).

About IP Memes
This weekly newsletter consists of technology-related intellectual property "memes" — IP issues that have just begun to surface and may soon become important legal issues. IP Memes enables corporate counsel, intellectual property lawyers, and interested others to learn about and react to new developments in intellectual property law.  Subscribe (free) at:  http://www.technolawyer.com

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