Issue #8-1 | January 13, 2012

An Apple patent prevails, but an Apple trademark suffers a serious blow

The high-profile ITC ruling for Apple last month in its battle with HTC was modest, at best, serving only to force the Android OEM to design around a minor feature. Apple can only hope to have several such victories that eventually add up to an Android product that is not as convenient or easy to use as comparable Apple products.

Worrisome for the company, however, is the rejection of Apple’s registration of the iPad trademark in China. In fairness, Apple thought it had purchased worldwide rights to the trademark from Taiwan’s Proview Electronics. However, the Chinese trademark office rejected the application because the trademark is owned by Proview Technology (of Shenzhen), an affiliate of Proview International in Hong Kong.

Proview Technology is now making it difficult for Apple retailers in a market important to Apple, so, though the decision can be appealed, an exclusive license may be the smart way out.

International due diligence is becoming its own discipline, with huge implications for aggressive business plans. Valuation analysts and IP attorneys who normally match business plans to corresponding IP safeguards now need to factor in multiple jurisdictions as soon as practicable. If a forecast calls for major growth initiatives in foreign countries, the business plan must account for the transportability of brands and supporting trademarks.

Intel trademarks Ultrabook, but is the horse already out of the barn?

MacBook Air defined the market. Light, thin, attractive, high-performance, energy-conserving laptops will sell, and at a premium price. They have collectively taken on the label “ultrabooks,” a natural combination of ultra-light or ultra-thin and notebook (though more likely an extension of MacBook). Now Intel has trademarked “Ultrabook.”

On the same day the trademark was announced, Aaron Ricadela reported for Bloomberg on the Consumer Electronics Show in Las Vegas, with ultrabooks (small “u”) the focus of the story. HP has one. Dell has one. Vizio has one. The Internet buzz about the convention, albeit somewhat subdued this year, is about ultrabooks.

So how deep is Intel willing to dig to keep the new trademark from being genericized? Whatever value might exist today in owning Ultrabook as a trademark, it’s already well on the way to generic usage. Look for a massive program to educate the consuming public. Mike Pellegrino’s Guide to Intellectual Property Valuation, second edition, available at the end of February, has an excellent section on how common usage destroys trademark value, what he calls “genericide.”

Analysts’ expectations exceed company’s ability to compensate for patent cliff at Lilly

When Eli Lilly’s patent protection for its antipsychotic drug Zyprexa expired last fall, analysts sought information on how Lilly would make up for the loss of $3B in related revenues. They were comfortable in forecasting 2011 earnings per share of $3.67. In addition, most companies facing the patent cliff force significant reductions in sales expenses and overheads, and it was anticipated Lilly would follow suit.

Eli Lilly disappointed on both fronts, as Lilly is now predicting an EPS of no more than $3.20, and Derica Rice, Lilly’s CFO, stated sales and overhead expenses “will remain unchanged.” Investors reacted by taking Lilly down over 2% in early trading on January 5.

IPWire will continue to cover how organizations manage the revenue and profit squeezes that accompany a blockbuster coming off patent protection.

Potential conflict of interest results in resignation of chief commercialization officer at University of Texas

On Dec. 31, 2011, Richard Miller resigned as the first technology commercialization officer at the University of Texas after having led the university to a banner year in licensing agreements, licensing revenues, and patents granted. According to Juan Sanchez, UT’s VP of research, Miller’s desire to have a stake in the startup companies he was helping to create created a conflict of interest that UT “would not allow.” In effect, a scenario could have developed in which Mr. Miller would be “negotiating with himself.”

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