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Stem Cells, Rolls-Royce, Nestle, BMI: Intellectual Property

By Victoria Slind-Flor
(c) 2011 Bloomberg News
Friday, March 11, 2011; 12:25 AM

March 11 (Bloomberg) -- Patent protection for stem-cell research methods that involve cells from human embryos breaches European Union law, an adviser to the region's highest court said in a non-binding opinion yesterday.

Inventions based on certain stem cells "can be patentable only if they are not obtained to the detriment of an embryo" resulting in its destruction or modification, Yves Bot, advocate general of the European Court of Justice, said. The Luxembourg- based EU court follows such advice in a majority of cases.

Under an EU law from 1998, research methods that involve human embryos for industrial or commercial purposes can't be patented. A German court handling the dispute at the center of yesterday's case sought the EU tribunal's view on how to interpret this phrase and the term "human embryo."

The case was triggered when Greenpeace challenged a German patent awarded to Oliver Bruestle, a professor and specialist in stem-cell research. Greenpeace, which said it sued for "ethical reasons," argued the patent for a stem-cell research process developed by Bruestle to treat neural diseases is invalid because it covers cells derived from human embryos. The Federal Court of Justice, Germany's highest civil court, last year asked for guidance on the case.

The advocate general said so-called pluripotent embryonic stem cells, such as those Bruestle used, don't fall under the definition of embryo because "they are no longer capable of developing into a complete human being." Still, it isn't possible to ignore the origin of these stem cells, he said.

A technical process which requires "either the destruction of human embryos, or their use as base material," can't be patented, Bot said.

Bruestle called the outcome "unexpected, surprising and very restrictive," in an interview at the court yesterday. "Should this be followed by the court, it would have very serious disadvantages for medical stem-cell research in Europe."

Greenpeace said the outcome was an important guideline for the future.

"Our aim with this case was to clarify the scope of protection of human embryos," Christoph Then, an adviser to Greenpeace, told Bloomberg. "This goes in the right direction and we have to wait for the court's final decision now."

The case is C-34/10, Bruestle v. Greenpeace.

International Aero Engines, the venture led by Pratt & Whitney and Rolls-Royce Group Plc, said its members renewed their alliance agreement through 2045 even as the two lead partners wrestle over patent litigation.

IAE will continue to "to develop and apply our technology," Chief Executive Officer Ian Aitken said yesterday in a statement, signaling that the group has the ability to work on new products and not just service existing engines.

Formed in 1983, IAE makes the V2500 line of engines for Airbus SAS's A320 narrow-body jet family. Airbus said Dec. 1 it was offering Pratt & Whitney's new PurePower geared turbofan as an option on its upgraded A320neo after Rolls-Royce and Pratt & Whitney reached an impasse on marketing the engine via IAE.

Rolls-Royce sued Pratt & Whitney in May, claiming the fan made by the United Technologies Corp. unit for a larger engine infringed a Rolls-Royce design, later amending the suit to include the geared turbofan engine. The fight escalated with Pratt & Whitney filing its own suit as well as a complaint with the U.S. International Trade Commission.

IAE's V2500 competes with models from the larger CFM International, a venture of General Electric Co. and Safran SA of France. CFM is the sole engine provider for Boeing Co.'s 737, the world's most widely flown airliner and an A320 rival. CFM's Leap-X also is an option on the A320neo.

Yesterday's accord extends IAE's existing ownership of 32.5 percent for London-based Rolls-Royce, 32.5 percent for Pratt & Whitney, 22 percent for Japanese Aero Engines and 12 percent for Germany's MTU Aero Engines Holding AG.

The case before the trade commission is In the Matter of Certain Turbomachinery Blades and Engines, 2769, U.S. International Trade Commission (Washington).

The May patent case is Rolls-Royce Plc v. United Technologies Corp., 1:10-cv-00457-LMB-JFA, U.S. District Court, Eastern District of Virginia (Alexandria).

The September suit by United Technologies is United Technologies Corp. v. Rolls-Royce, 3:10-cv-1523-SRU, U.S. District Court, District of Connecticut (New Haven).

Nestle SA's Nespresso unit said French authorities visited its boutique on the Champs-Elysees and its Paris offices to seek evidence after Ethical Coffee Co. alleged the brand infringed its patents.

Nespresso rejects any claims that it violated its rival's patents, the company said in an e-mailed statement yesterday. Nestle has sued Ethical Coffee in a separate lawsuit in France alleging that the competitor is infringing Nespresso patents.

Ethical Coffee said in a statement yesterday that it asked French authorities to investigate possible patent infringements. Some Nespresso machines may violate the company's patents, Ethical Coffee Chief Executive Officer Jean-Paul Gaillard said in a telephone interview.

Ethical Coffee and Sara Lee Corp. last year started selling their own versions of coffee for Nespresso machines, offering consumers alternative pre-filled capsules for the first time.

Denner AB, a Swiss retailer, last week said it will resume offering Nespresso-compatible coffeemaker capsules after a court in St. Gallen, Switzerland, lifted an injunction against their sale.

A motorcycle rally will take place in Sturgis, Kentucky, in this year even after South Dakota's Sturgis Area Chamber of Commerce filed a trademark-infringement lawsuit, the Rapid City Journal reported.

The chamber objected to the name of Kentucky's Little Sturgis Rally & Races for Charity Inc. and sued in federal court in South Dakota in March 2008. The Kentucky organizers have asked the court to dismiss the case.

The Rapid City newspaper reported that the owner of a motorcycle shop in Kentucky is leading efforts to avoid the trademark issue by holding the rally under a different name July 14-17.

The Little Sturgis Rally website says no rally is scheduled and it isn't connected to the group planning an alternative event.

The 71st annual Sturgis Motorcycle Rally in South Dakota will be held Aug. 8-14. Last year, the event had an estimated attendance of 467,000 and generated $11.4 million in sales to temporary vendors, according to the official rally website.

The trademark infringement case is Sturgis Motorcycle Rally Inc., v. Little Sturgis Rally & Races for Charity Inc., 5:08-cv- 05024-JLV, U.S. District Court, District of South Dakota.

British Brands Group, a U.K. group of brand owners, asked that nation's government to develop measures to eliminate what it calls "parasitic" packaging.

The London-based group gathered together examples of products in packaging similar to that used by brand owners, including lookalike versions of Procter & Gamble Co.'s Head & Shoulders anti-dandruff shampoo, the energy drink made by Austria's Red Bull GmbH, Unilever Plc's I can't Believe it's not Butter and L'Oreal SA's Revitalift anti-wrinkle cream.

According to the group, the more a package looks like a familiar brand, the more likely shoppers are to buy products by mistake and to think they come from the same manufacturer. Shoppers have expressed "a definite preference" for packaging that doesn't mislead them, the group said.

The brand group surveyed almost 3,000 shoppers in 2009 and found that one third of them admitted buying the wrong package by mistake because they were confused by the packaging. Similar packaging colors led the reasons for shopper confusion, the survey found.

Broadcast Music Inc., which collects licensing fees on behalf of songwriters, composers and music publishers, was the target of a Internet attack by a group of anonymous opponents of copyright protection.

The group, which operates "Operation Payback," has managed to keep BMI's bmi.com website offline since March 8.

According to a posting on the AnonNews.org website, Operation Payback "will not rest until our demands are met."

Previously, Operation Payback targeted the U.S. Copyright Office and the Motional Picture Association of America.

Anonymous also has attacked sites belonging to the Westboro Baptist Church and companies that denied service to the WikiLeaks public-information operation.

Howrey LLP, the 55-year-old Washington-based law firm, will cease operations effective March 15, Chief Executive Officer Robert Ruyak said.

When Howrey merged with Houston's Arnold White & Durkee in 2000, it had the world's largest intellectual-property practice. Many of Howrey's marquee names in IP departed in recent months, including William C. Rooklidge, who headed the practice. He joined Washington's Jones Day.

Other notable departures include David C. Clough, who joined Philadelphia's Morgan Lewis & Bockius LLP; Robert Galvin, who left to join Washington's Wilmer Cutler Pickering Hale & Dorr LLP; and Henry Bunsow, who left Howrey's Silicon Valley office to join New York-based Dewey & Leboeuf LLP. Marjan Noor joined London-based Simmons & Simmons and Michael Padden is now at Levenfeld Pearlstein LLC of Chicago.

Another Howrey alumnus is Q. Todd Dickinson, who served as deputy commissioner of patents and trademarks during the Clinton administration. Dickinson is now executive director of the American Intellectual Property Law Association.

Ruyak said an orderly wind-down of the firm was the only "practical alternative" after a disappointing financial performance during the past two years and the resignation of a number of partners. The firm sent layoff notices to employees March 9.

"This is a very difficult time for our firm, for our attorneys and for our staff," Ruyak said in a statement. "Many of us have spent our entire legal careers at Howrey and remain proud of what we built."

More than 140 partners have left Howrey since April, the American Lawyer, a trade publication, reported.

Greenberg Traurig LLP hired two IP specialists for its Washington office, the New York-based firm said in a statement.

The two new partners are Charanjit "Charan" Brahma and Heidi Salow.

Brahma, who joined from Chicago's Kirkland & Ellis LLP, is a patent litigator who has represented clients in the pharmaceutical, medical device, agricultural, Internet and telecommunications industries. He also has done patent acquisition work.

Before he was a lawyer, he worked as a guidance and control systems engineer for Texas Instrument Inc.'s defense systems group.

Brahma has an undergraduate degree in mechanical engineering from the University of California at Berkeley, a master's degree in mechanical engineering from the University of Michigan, and a law degree from University of California Hastings College of the law.

Salow, who joins from Chicago's DLA Piper LLP, does intellectual-property, privacy and data-security work. She previously was senior director and senior counsel for Sprint Nextel Corp.

Salow has an undergraduate degree from McGill University and a law degree from the University of Baltimore.

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