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By Bloomberg

Microsoft Corp. agreed to pay VirnetX Holding Corp. $23 million to settle patent claims over secure communication networks. VirnetX rose the most in three months.

It’s the second settlement where the two companies have been able to reach an agreement over patents; in 2010 Microsoft paid $200 million. Under the new pact, the earlier license Microsoft signed gets expanded, limiting the chances of further lawsuits, according to a statement by the companies Dec. 19.

The $23 million from Redmond, Washington-based Microsoft is about 10 times what VirnetX brought in from its licensing in 2013. VirnetX, based in Zephyr Cove, Nevada, gets all its revenue from patents.

The latest case was filed last year and targeted Microsoft’s Skype service, which allows instant messaging and Internet calling. The agreement came after U.S. District Judge Leonard Davis in Tyler, Texas, issued an order giving definitions to key terms in the VirnetX patents. The order is a key part of patent litigation because it helps both sides gauge the eventual likelihood of success.

“We are pleased to have come to an agreement with Microsoft Corporation and put all our legal disputes behind us,” VirnetX Chief Executive Officer Kendall Larsen said in the statement. Microsoft also said it’s pleased with the agreement.

VirnetX still has a case pending against Apple Inc. over the iPhone maker’s VPN on Demand and FaceTime features. An appeals court on Dec. 16 rejected a bid to reinstate a $368.2 million damage award against Apple and sent the case back to Davis in Texas for further proceedings.

The case today is VirnetX Inc. v. Microsoft Corp., 13-351, U.S. District Court, Eastern District of Texas (Tyler).

Zimmer Told to Pay Stryker $70 Million in Device Fight

Zimmer Holdings Inc. must pay Stryker Corp. $70 million -- less than a third of what it was originally ordered to pay -- for infringing patents on a surgical device to clean bones, a U.S. appeals court said Dec. 19.

The U.S. Court of Appeals for the Federal Circuit upheld a jury finding that Zimmer infringed three patents. It overturned a judge’s decision to triple the damage award, saying Zimmer’s defense wasn’t unreasonable over development of a pulsed lavage, a technique that removes damaged tissue and cleans bones during joint-replacement surgery.

The two companies are the main competitors for the handheld surgical tools, which are battery powered and replace older, bulkier machines that had to be wheeled around and plugged in. The judge in the case increased the award because the jury found that Zimmer intentionally infringed Stryker patents to build its business for pulsed lavage.

The three-judge panel said that the jury’s findings on the validity of the Stryker patents and whether Zimmer used the technology were reasonable.

Following trial, U.S. District Judge Robert Jonker increased the award to $228 million -- tripling the jury’s recommendation and adding additional costs -- based on “the one-sidedness of the case and the flagrancy and scope of Zimmer’s infringement.”

The Federal Circuit said Zimmer’s arguments had some merit, so there was no intentional infringement of the patents.

The court remanded the case to determine if Zimmer still must pay some of Stryker’s legal fees because of allegations of litigation misconduct. The opinion was posted on the court’s electronic docket.

The appeal is Stryker Corp. v. Zimmer Inc., 13-1668, U.S. Court of Appeals for the Federal Circuit (Washington). The district court case is Stryker Corp. v. Zimmer Inc., 10-cv-1223, U.S. District Court, Western District of Michigan (Grand Rapids).

For more patent news, click here.

Trademark

Microsoft Sues to Stop Tech-Support Impersonator Using Name

Microsoft Corp. sued a company it accuses of using its name to scam customers into buying hundreds of dollars in support services to fix nonexistent bugs, then stealing personal information or installing malicious software.

In a complaint filed Dec. 18 in federal court in Los Angeles, the software maker accused Omni Tech Support, a division of Customer Focus Services, of unfair and deceptive business practices and trademark infringement. Microsoft said in a blog post it has received 65,000 complaints about this type of scam since May.

Microsoft accused the firm of claiming to work for the software giant, then in some cases gaining remote access to a customer’s computer and installing malware, including a program to grab private passwords.

Senior citizens are a frequent target, according to the blog post by senior attorney Courtney Gregoire, who oversees Microsoft’s work on digital crimes against what it considers vulnerable populations.

“We’ve reviewed the allegations, we strongly deny all of them and we will fight this vigorously,” Customer Focus Services Chief Executive Officer Marc Haberman said in a phone interview.

Omni Tech is based in Los Angeles and was founded in 2000, according to the company’s website. The site says the company has “hundreds of Microsoft Certified Systems Engineers figuring amongst” its technicians.

The case is Microsoft Corp. v. Customer Focus Services LLC, 2:14-cv-09667, U.S. District Court, Central District of California (Los Angeles).

Woman Files U.S. Trademark Application for ‘I Can’t Breathe’

An Illinois resident has applied to register the phrase “I can’t breathe,” according to the database of the U.S. Patent and Trademark Office.

The application was filed Dec. 13 by Catherine Crump of Waukegan, Illinois, who said she plans to use the mark on hooded sweatshirts and T-shirts.

The phrase, the last words uttered by Eric Garner, who died while being subdued by a New York police officer, has become a rallying cry for people protesting the killing of black men by police officers.

Shirts printed with the phrase have also been worn during pregame warm-ups by many players in the National Basketball Association.

Unilever Withdraws Lawsuit Against Just Mayo Maker Hampton Creek

Unilever, the maker of Hellmann’s and Best Foods mayonnaise, withdrew a lawsuit against startup Hampton Creek Foods Inc. over the labeling of its Just Mayo product.

A unit of London- and Rotterdam-based Unilever, the world’s biggest seller of mayonnaise, had accused San Francisco-based Hampton Creek of misleading consumers because “Just Mayo” implies the product is mayonnaise, even though it doesn’t contain eggs. The ensuing debate over what defines mayonnaise created a backlash for the European company after Unilever edited consumer comments about mayo on its website.

Unilever pulled the suit “so that Hampton Creek can address its label directly with industry groups and appropriate regulatory authorities,” Mike Faherty, vice president for foods at Unilever’s North American unit, said in a Dec. 18 statement. “We believe Hampton Creek will take the appropriate steps in labeling its products going forward.”

The spat with Hampton Creek, a far smaller competitor backed by Microsoft Corp. co-founder Bill Gates and Chinese billionaire Li Ka-Shing, cast light on the struggles in Unilever’s food division, which also sells spreads such as Country Crock and I Can’t Believe It’s Not Butter.

Yesterday, Hampton Creek said it had received $90 million in funding from investors including Marc Benioff, chief executive officer of Salesforce.com Inc., and Facebook Inc. co- founder Eduardo Saverin.

“Hampton Creek was founded to open our eyes to the problems the world faces,” CEO Josh Tetrick said in an e-mailed statement provided by the U.S. company. “This moment has only validated why.”

The case is Conopco Inc. v. Hampton Creek Inc., 14- cv-06856, U.S. District Court, District of New Jersey (Newark).

For more trademark news, click here.

Copyright

Sirius Lawyers Told They Argued a Case That’s Not ‘Good Law’

In a dispute between Sirius XM Radio Inc. and the owners of the copyrights to songs performed by the Turtles, a 1960s-era band, a federal judge in New York gave a stiff rebuke to the law firm representing the satellite broadcast service.

U.S. District Judge Colleen McMahon on Dec. 12 told the firm that a case it cited in an effort to prove the copyright owners didn’t have a right to bar the broadcast of their music “is no longer good law, and has not been for 60 years.”

Counsel from Los Angeles-based O’Melveny & Myers LLP had cited a 1940 appeals court case involving the conductor Paul Whiteman and recordings he and his orchestra made for RCA.

Sirius, through its lawyers, argued that this case held that New York law didn’t give rights of public performance -- in this case, the right to bar radio broadcasts of their recorded music -- to copyright owners. McMahon disagreed with Sirius’ argument and said “so does every other court and authority that has considered the issue.”

The firm cited the case in its motion for the judge to reconsider her Nov 14 decision denying the company’s request to dismiss the case. According to the docket, the O’Melveny lawyers came into the case after she made the dismissal ruling.

The case is Flo & Eddie Inc., v. Sirius XM Radio Inc., 1:13-cv-05784, U.S. District Court, Southern District of New York (Manhattan).