Judge halves $30.2 million infringement award against Nintendo

NEW YORK (Reuters) – A U.S. judge on Wednesday ruled that inventor Seijiro Tomita can take half the $30.2 million in damages awarded him after a jury found Nintendo Co infringed one of his patents, or risk getting nothing.

The federal jury in New York awarded Tomita the damages in March after deciding the video game company infringed a 3-D display technology patent with its handheld 3DS videogame system.

Tomita’s patent related to technology he developed for providing 3-D images without the need for 3-D glasses. He sued Nintendo and its U.S. unit in 2011 for patent infringement.
In a ruling on Wednesday, federal judge Jed Rakoff deemed the award “‘intrinsically excessive’ and unsupported by the evidence presented at trial.”

By August 23, Tomita, 59, must decide whether to accept $15.1 million in damages or proceed to a new damages trial, the U.S. district judge ruled.

Rakoff noted that evidence at the trial showed Nintendo’s 3DS console is not profitable, and the vast majority of games designed for it do not use technology covered by Tomita’s patent.

The judge denied other requests from Nintendo, including overturning the jury’s verdict or granting a new liability trial.

“Nintendo respects the intellectual property rights of other companies and is confident that none of its products infringes the asserted patent,” Charlie Scibetta, a spokesman for Nintendo, said in a statement. “Nintendo will appeal the jury’s verdict and reduced damages award to the court of appeals.”

Joe Diamante, Tomita’s lawyer, said that “We are still reviewing the decision and have no comment.”

The case is Tomita Technologies USA, LLC et al v. Nintendo Co, Ltd et al, U.S. District Court, Southern District of New York, 11-cv-4256.

(Reporting by Bernard Vaughan; editing by Andrew Hay)




No Conflict of Interest in Patent Fight With Apple

SAN FRANCISCO (CN) – Apple failed to persuade a federal judge that he should disqualify the law firm representing a company suing it for patent infringement.
Hagens Berman Sobol Shapiro represents Flatworld Interactives in its 2012 complaint against Apple related to patented touch-screen technology.
Flatworld’s principal and co-founder is Jennifer McAleese, whose husband once worked for a law firm that does work with Apple.
Though Morgan Lewis and Bockius has represented Apple since 2003 in various legal matters, including patent litigation, John McAleese worked as co-chair of the firm’s environmental practice while serving as a partner there.
He had had nothing to do with intellectual property law or any matters involving Apple, but Apple claimed in a motion to disqualify Hagens Berman that the lawyer had somehow gotten a hold of confidential litigation information and funneled that information to his wife and Hagens Berman.
U.S. District Judge William Orrick shot the maneuver down last week.
“There is no evidence before the court that John McAleese personally obtained or even tried to access any material confidential information about Apple while with Morgan Lewis,” Orrick wrote. “Apple has pointed to no evidence that John McAleese passed on any confidential information about it or, indeed, actually had any confidential information to give.”
The judge did find, however, that McAleese acted contrary to Apple’s interests by helping his wife find a law firm that would sue Apple for patent infringement. He put her in touch with Hagens Berman in February 2012. FlatWorld retained Hagens Berman in March, and filed its action against Apple in April 2012.
“Although John McAleese acted as an attorney for FlatWorld contrary to his legal and professional duty, there is no evidence that he possessed material confidential information about Apple or, for that matter, that he communicated substantively with FlatWorld about this litigation such that Hagens Berman is tainted and should be disqualified as FlatWorld’s counsel,” Orrick wrote.
The 17-page opinion also notes that Flatworld’s majority shareholder, co-founder Slavoljub Milekic, filed the patent at issue.



US: Outdry files patent infringement case against Geox

Columbia Sportswear-owned OutDry Technologies has filed a patent infringement case against Italian footwear brand Geox relating to its waterproofing leather technology.

The lawsuit, which was filed in the US District Court in the southern district of New York, demands a jury trial as well as injunctive and monetary relief to compensate for the damages Outdry suffered.

The dispute centres on Outdry’s method of waterproofing leather through the bonding of a waterproof but breathable membrane to the inside of the upper leather using an adhesive, blocking moisture from penetrating into the inner part of the boot.

According to the complaint, Geox released a line of footwear – constructed using a process identical to that used to make Outdry products – after Nextec, which created the technology, did not enter into a co-partnership with the Italian footwear company.



Apple vs. Samsung Lawsuit: Patent Infringement Ban on Samsung and iPhone 5S Release Date Rumors Sends Apple Inc. Stock Up $12.91

Apple Inc. has seen an increase in the company’s stock following the latest rulings by the U.S.International Trade Commission (ITC).

Apple investors initially saw stock increase by 1.49 percent on Aug. 5, following the Obama administration’s veto on the ITC’s iPhone 3GS, iPhone 4, and iPad 2 U.S. imports ban.

The good news for Apple resulted in their market capitalizations going over $6.9 billion.

The stock figures have since doubled following theITC’s latest ruling on banning specific Samsungdevices. As Latinos Post reported, the ITC ruled Samsung violated two Apple patents that involve touchscreen technology and detection when something is plugged into the headphone jack.

Apple Insider noted that after the ITC ruling against Samsung, Apple stock increased $12.91, or 2.8 percent, and ended the Aug. 12 trading day with $467.30.

News of the stock increases arrives as Apple is rumored to reveal the next iPhone on Sept. 10. AllThingsD reported that Apple will debut the next smartphone during a special event, however, it is unknown if it’ll be the successor of the iPhone 5 or the long-speculated low-cost iPhone.

The ITC’s ruling to ban certain Samsung devices, which does not include the Galaxy S3 or Galaxy S4, goes into effect in approximately 60 days. As with the iPhone 3GS, iPhone 4, iPad 2 veto, the Obama administration could overrule the ITC decision as well.



New Zealand: Sssshhhh….don’t tell anyone, it’s confidential!

What kind of information may be “confidential”, and in what circumstances will you be in trouble if you disclose or use “confidential” information?

Businesses often talk about information being “confidential”, and as lawyers we recommend businesses protect such information through specific agreements or clauses in contracts.

But just exactly what kind of information may be “confidential”, when will such information actually be “confidential”, and in what circumstances will you be in trouble if you disclose or use “confidential” information?

The best way to answer these questions is to look at the legal test applied by the courts in New Zealand to establish a breach of confidence. The test, cited in Coco v A N Clarke (Engineers) Ltd [1969] RPC 41 (Ch) and adopted in New Zealand by the Court of Appeal in AB Consolidated Ltd v Europe Strength Food Co Pty Ltd [1978] 2 NZLR 515, has three elements:

  1. The subject information has the necessary quality of confidence about it;
  2. The subject information has been communicated in circumstances importing a duty of confidence; and
  3. There has been an unauthorised use of that information to the detriment of the person communicating it.

The first requirement, that the subject information has the “necessary quality of confidence about it”, refers to information that is not public knowledge, i.e. ‘private’ knowledge. Such knowledge typically includes trade secrets (like the recipe for Coca Cola) or a business’s internally-developed customer management system.

The second requirement, that the subject information has been communicated in circumstances importing a duty of confidence, refers to the manner in which the ‘private’ information has been passed from person A to person B. The obligation frequently arises out of a relationship between two parties in which one party has passed ‘private’ information to the other party on the basis it is to be used only for a known, agreed and usually limited purpose. For example, a brewery might disclose its own unique recipe for pale ale in confidence to a contract brewer to enable the brewery to meet demand for its pale ale.

The third requirement, which may be the most difficult to prove, is that the recipient of the confidential information has disclosed or used that information without the consent and to the detriment of the owner of that information. There is no requirement the recipient should have dishonestly and deliberately disclosed or used the confidential information, but the recipient must know or ought to know that information is confidential. Further, the owner of the information must show that he/she continues to have an interest in the subject information.

The test in Coco was recently applied by the High Court in Earthquake Commission v Unknown Defendants [2013] NZHC 708. In this case EQC sought, and obtained, an interim injunction against the unknown author(s) of a blog site into whose hands had mistakenly fallen an EQC spreadsheet containing details of claims made to EQC in relation to 83,000 residential properties in Christchurch. You may remember the unfortunate event in the news…

If you need advice about keeping your secret secret, feel free to give me a call (in confidence, of course!) to discuss how we can help make sure your secret remains just that.



Pros and cons of the Russia’s new anti-piracy law

Pros and cons of the Russia’s new anti-piracy law
Copyright holders are pinning hopes on the new law to boost their business. Source: Reuters

On the same day the new anti-piracy law came into effect, the Russian court received its first lawsuit from a copyright holder: head of ‘Kino Bez Granitz’ (Films Without Borders) Sam Klebanov complained that the VKontakte social network was illegally distributing movies. Although the lawsuit was rejected as being incorrect, experts anticipate an easier time for film distributors on the Russian market.

On August 1, the so-called anti-piracy act – or officially, federal law No. 187-FZ ‘On amending the legislation of the Russian Federation regulating copyright protection in information and telecommunications networks’ – came into effect. The new law establishes responsibility for uploading pirated films and gives copyright holders the right to file lawsuits against any online service guilty of copyright infringement. Alongside websites that host pirated films, the law also introduces responsibility for posting links to resources with pirated films.

Once the court accepts a claim, it can block the website in question temporarily, even before court proceedings begin. In such cases, the court notifies the Federal Service for Supervision of Telecommunications, Information Technology and Mass Media, which, in turn, informs the service provider. The service provider has three days to demand that the owner of the website containing illegal content shut it down. If the owner refuses to comply, the service provider will be under an obligation to block access to the website.

Responsibility for distributing pirated content extends to the so-called information transfer agents, which broadly embraces common users, internet platforms – such as search engines – and service providers. The only case in which punishment may be avoided is when the person is unaware that their site contains pirated content. As it is, all copyright holders need to do to in order to sue information transfer agents is to point out the films they do not own.

Internet companies have been highly critical of the new law, including search engines Yandex and Google, the Mail.Ru holding, major torrent trackers and a host of other smaller sites (more than 1600 resources in total). Internet majors fear that the law’s loose terminology could harm honest users.

“We have been opposed to the law in its current format from the outset. The fact is that in its current version, it may involve significant risks for the industry stemming from resources being blocked by mistake or illegally (for instance, when blocking specific IP addresses, completely unrelated websites are likely to be blocked too), and its mechanisms can be used to foster unfair competition and abuse. It is also possible that the law will prove inefficient in counteracting online piracy, since changing IP addresses and hosting providers, and using various loopholes to evade the law is hardly a problem or a challenge for real internet pirates,” head of the legal service at Mail.Ru Anton Malginov said.

Conversely, lawyer Pavel Katkov, who was involved in drawing up the anti-piracy law as part of the working group at the Ministry of Culture, believes that responsible internet resources have nothing to fear. “Responsible internet companies will incur zero losses. Russia is the only country where a complaint goes through two government filters: the courts and an executive body, the Federal Service for Supervision of Telecommunications, Information Technology and Mass Media. The court already turned down the first claim filed by a copyright holder on  August 1 on formal grounds, citing incorrectly prepared documents.”

The first claim was a lawsuit filed by the distribution company Films without Borders against the VKontante social networking website. The claimant quoted pirated versions of five movies distributed via VKontakte. The Moscow City Court dismissed the lawsuit citing a lack of required documents. In his interview aired on the Dozhd TV Channel, Films without Borders General Director Sam Klebanov said that copies of the distribution certificates obtained by Films without Borders were enclosed with the claim. He also added that his company’s lawyers were preparing documents to refile the lawsuit.

Films without Borders has been trying to settle the matter with VKontakte peacefully, sending requests to remove pirated movies from specific pages to the administration of the social network, and VKontakte, according to its press secretary Georgy Lobushkin, complied with every one of them. Meanwhile, Klebanov admitted that this method of cooperation with online resources was hardly efficient and very cumbersome. Pirated versions blocked from certain pages tend to appear almost instantly elsewhere, so copyright holders need to monitor a vast amount of content on an ongoing basis.

Web Kontrol, a company specialising in hunting illegal online content, has put together a list of internet resources that contain pirated movies. The list includes – in addition to the new anti-piracy law’s first victim Vkontakte – video hosting service YouTube, video search engine video.yandex.ru, video hosting website video.mail.ru and filmix.ru, as well as five torrent trackers: rutracker.org, my-hits.ru, rutor.org, torrentino.com and tfile.me.

Internet majors that have found themselves blacklisted – Yandex and Mail.Ru – have declared they have been successfully cooperating with copyright holders for a very long time. “The law primarily applies to hosting services (user-generated content services). For reference, we worked out efficient cooperation schemes regarding user-generated content services with copyright holders a long time ago, so we have simply adjusted them to match the procedures prescribed by the new law,” Yandex’s press office said. “We do not expect the newly adopted law to have any noticeable effect on the company’s business.

“Even before the law was passed, we made it a point to promptly remove content upon requests from copyright holders, and we plan to continue to do so, no matter where the request comes from – the copyright holder, the Federal Service for Supervision of Telecommunications, Internet Technology and Mass Media, or the court,” head of the legal service at Mail.Ru Anton Malginov said. “The new law applies to films and made-for-TV movies. It is true that we host user-generated video content on our social networks. We have made a special effort to analyse consumption: videos with the most views are under five minutes in duration. They are obviously not films. So we are not worried that the new law will have any impact on our operations.”

Meanwhile, copyright holders are pinning hopes on the new law to boost their business. “Obviously, reducing piracy will help monetise certain software products, create conditions for fair competition, and open up new opportunities to develop different media segments,” said Sergei Petrov of STS Media.

“The law finally allows copyright holders to protect their rights effectively, and eliminates possible confusion around the actual offender for the courts. For the Russian film industry, such protection means new horizons for growth. It also increases the appeal of the Russian market in the eyes of foreign movie industry players. It will even benefit internet companies. Such legal services as tvigle.ru, now.ru, nuz.ru will be able to breathe again once unfair competition from pirated content goes away,” Pavel Katkov believes.

It remains to be seen what the actual economic effect of the anti-piracy law will be. What we do know is how much it will cost taxpayers: according to the Federal Service for Supervision of Telecommunications, Information Technology and Mass Media, it will need an extra 97 million roubles (about $3 million) a year to act upon the law.



Patent Law implementation puts Baguio’s zoning at risk

The city’s zoning ordinance and the land use plan are imperiled with the environment department’s rejection of the proposed special guidelines for the implementation of the Free Patent Law.

Appearing before the city council’s session Monday last week, Mayor Mauricio Domogan told members of the council and other panelists from the Community Environment and Natural Resources Office, National Commission on Indigenous Peoples, and the Department of Public Works and Highways, Baguio will continue to lose remaining open spaces if these agencies and the local government do not come to terms with how to protect remaining open spaces that through the years continue to shrink for many were issued titles either through ancestral ownership, patent application, townsite and miscellaneous sales applications.

The NCIP, DPWH, and Cenro were invited to the council to clarify the processes on how private owners were able to acquire their titles even if some of these areas are claimed to form part of the right of way, and reservations, either by the local or the national governments.

“Imagine what will happen to Baguio. Our most serious problem is the unscrupulous titling of government reservations,” Domogan said.

He said lack of coordination between national government agencies with the LGU and differing interpretations of some laws resulted in uncontrolled land speculation.

In the case of the DPWH, Domogan said the agency wrongly interpreted Memorandum Circular 52 that designates which agency should demolish structures built on ROWs.

The DPWH said it should be the local government as it is the latter that has police power to enforce demolition. Domogan countered MC 52 states it should be the DPWH that should demolish and the local government will augment, but the main job should be with the agency.

Domogan said the finger pointing is one reason why the former eatery beside the Casa Vallejo building at Upper Session Road has transformed into a big building now. The structure, which is now a big restaurant, is on a ROW. A building has since been built there when the owners reportedly secured an ancestral land title.

In general, one-fifth of Baguio is now covered by CALTs, said Edgardo Flor, head of the Cenro-Baguio.

In the case of the titling of Forbes (which included the Botanical-Centennial garden) and Wright parks, Loakan Airport, Busol Watershed, and the frontage of The Mansion, the mayor said the NCIP issued CALTs over these reservations without regard to a previous agreement with former commissioner Eugenio Insigne that before titles are issued, this should have been cleared with the Baguio Ancestral Lands Clearing Committee (BALCC).

The NCIP is a member of the BALCC.

NCIP-Baguio lawyer Bernadette Badecao said the last meeting of the BALCC was in 2010. She said there are no guidelines on how the committee should function and a chairman was not designated.

The mayor told Badecao to review their records. He said when the BALCC was created all requirements were completed. He added, the recent titles issued by the NCIP also violated the Indigenous Peoples Rights Act. Domogan said Baguio is generally governed by its charter not the entire law as spelled out in Section 78 of the IPRA.

Badecao declined to comment further because of pending issues before the court. She assured though, the NCIP has not issued any CALT for Baguio pending these cases.

With regard the application of the Free Patent Law, Domogan said the law has good intentions for it aims to give land to the landless at a lesser cost. But when the law is applied over a townsite reservation like Baguio, the mayor said there appears to be a conflict.

He said there are applications where a head of the family divided among his children his free patent application. If this is granted, members of his family will own several parcels of land in Baguio, but this practice deprives other people from owning a piece of land.

The mayor suggested for the city council to pass a resolution containing suggested guidelines governing TSA, MSA, and Free Patent applications and submit this anew to the central office of the DENR for reconsideration.

To thresh out these issues, Domogan, some of department heads, the DPWH, and NCIP met also last Monday. The city council will await results of the meeting before it comes up with its own action related to the titling of public lands in the city.