1. Last week Danny Sokol's Antitrust & Competition Policy blog featured a mini-symposium on non-SSO patent commitments and pledges. (Link is here.) Commenting were David Balto, Logan Breed, Jorge Contreras, Robert Harris, and Simon Steel.
2. Professor Contreras and David Newman of Arnstein & Lehr also have posted an article on ssrn, titled Developing a Framework for Arbitrating Standards-Essential Patent (SEP) Disputes, which is forthcoming in the Journal of Dispute Resolution. Here is a link to their article, and here is the abstract:
A growing chorus of voices is calling for the use of arbitration to resolve disputes concerning standards-essential patents (SEPs). Those advocating the arbitration of SEP-related disputes include academic commentators, government officials and members of the professional bar. Most cite the potential savings of cost and time that arbitration could achieve over the multi-year, resource-intensive lawsuits that currently characterize these disputes. But despite these ringing endorsements, there is surprisingly little guidance available for parties, standards-development organizations (SDOs), and tribunals that wish to implement effective arbitration procedures for these complex disputes.
In this article, we lay the groundwork for the development of such procedures and identify several key areas in which further study and deliberation will be required. We pay particular attention to fundamental questions such as whether SEP arbitration should be mandated by SDOs, which issues should be arbitrated, whether arbitral decisions should be confidential, and what form arbitration proceedings should take. While, at this early stage, we do not purport to answer these difficult questions in a definitive manner, we offer a framework for further discussion that we hope will be useful for policy makers, industry participants and commentators considering these important issues.
3. Professor Sokol and his colleague Wentong Zheng have posted an article on ssrn titled FRAND in China. This is the paper they presented at the University of Florida workshop last month, and which I blogged about here. Here is a link to the article, and here is their abstract:
This Essay discusses antitrust-related FRAND issues in China. In Part I, the Essay provides an overview of China’s antitrust regime and its interaction with intellectual property rights. In doing so, the Essay offers an explanation of the nature of the Chinese antitrust regime that builds upon both the industrial organization and the political economy literatures. In Part II, this Essay discusses standard setting in China, and how FRAND-related issues are handled under Chinese standard-setting laws and regulations. In Part III, the Essay explores recent developments in Chinese courts that impact FRAND. In particular, it discusses the Huawei v. InterDigital case and its implications for global FRAND licensing. In Part IV, the Essay offers thoughts on the lack of transparency in China’s antitrust regime as well as the use of industry policy in the FRAND setting and how these issues may negatively impact consumer welfare.
4. Florian Mueller last week noted an article by Jay Jurata and David Smith of Orrick titled "The Next Chapter of Disputes Involving Standard-Essential Patents." As Florian notes, the article shows that "only about one in eight SEP assertions by companies like Samsung, Motorola and InterDigital succeeds in court." Here's a link to Florian's post at Foss Patents, and here's a link to the article. Regarding an issue that happens to be important to Samsung's recent proposal (see here), the authors assert that "Alternatively, some SEP owners have suggested that a putative licensee is 'unwilling' if it does not agree to pay a FRAND royalty after binding arbitration. But absent certain procedural defenses—such as meaningful discovery, transparent and reasoned adjudication of all of the underlying issues, and appellate review—the threat of vaguely-defined arbitration can be leveraged by SEP owners almost to the same extent as the threat of injunction." Very interesting paper.
5. Finally, in the September 2013 edition of AIPPI-Journal of the Japan Group of AIPPI, there is a write-up by Yosuke Kurita on EP Room, K.K. v. Japan Patent Office, Case No. 2013 (ne) No. 10011 (I.P. High Court Apr. 24, 2013). The court affirmed a judgment dismissing a claim for damages against the Japanese Patent Office, for allegedly wrongfully revoking the plaintiff's patent. The court held that the JPO lacks the capacity to be sued in a civil action.