Wednesday Miscellany: Injunctions in Canada and Germany; Inventor Remuneration in Japan

1.  A couple of weeks ago Norman Siebrasse published a post on Sufficient Description on a recent Canadian Federal Court decision, Abbvie Corp. v. Janssen.   I recommend that interested readers read the decision itself and Professor Siebrasse's write-up, but briefly the case involves Canadian Patent No. 2,365,281, titled  “Human Antibodies that Bind Human IL-12 and Methods for Producing."  AbbVie markets a drug, HUMIRA, for treatment of (among others things) psoriasis, but none of AbbVie's products, including HUMIRA, are covered by the '281 Patent.  Janssen markets STELARA, an anti-psoriasis drug, that is covered by '281.  AbbVie sued Janssen for infringement, and in previous proceedings the court found the patent valid and infringed.  On the question of remedies, the court granted an injunction only against the defendant's marketing of STELARA, but otherwise will permit Janseen to continue selling the drug to existing and new patients (presumably subject to a reasonable royalty yet to be determined).  The court states that, although "[a]n injunction normally will follow once the Court has found that a patent is valid and has been infringed," para. 35, but that the remedy nevertheless is discretionary.  Moreover, "In considering a final injunction, a party is required to establish its legal rights; the Court must then determine whether an injunction is an appropriate remedy. Irreparable harm and balance of convenience, per se, are not relevant, but may inform the determination as to whether an injunction is an appropriate remedy" (para. 38).  For discussion of the law of injunctions in Canada, the U.K., and Australia in my book, see pp. 176-84.

2. The June 2014 issue of GRUR-RR summarizes a recent decision of the Düsseldorf Oberlandesgericht (Judgment of Nov. 11, 2013, I-2 U 94/12--Desogestrel), on the question of whether to grant a preliminary injunction against a generic drug company's marketing of an allegedly infringing drug.  According to the summary (in German), the court states that in principle it may grant a preliminary injunction only when the question of infringement and validity is so clear that a mistaken decision is not to be anticipated.  Moreover, while it normally would be necessary first to have a positive adversarial decision on validity, this requirement can be put aside, especially in a case involving  infringing sales by a generic drug firm, as long as the court is persuaded that the patent is valid.  For previous discussions of preliminary injunctions in Germany, see here, here, and here; see also my book pp. 243-44.       

3. Many countries, including Germany, Japan, and the U.K., have laws that require that employee inventors receive some sort of remuneration for certain inventions.  Dennis Crouch recently published a post on a U.K. decision addressing this topic (denying the inventor any reward, because the U.K. law requires that the invention be of "outstanding benefit" to the employer, despite revenues from the invention of £24.5 million!); and as I noted in my book (pp. 268-69), courts in Germany sometimes look to the royalty rates awarded in employee remuneration arbitration cases for guidance in determining royalty rates in patent infringement litigation.  (Both types of cases involve attempts to value technology, albeit for different purposes; whether those purposes are close enough to make the rates determined in remuneration cases a good fit for patent infringement cases is, of course, debatable.)  Overall, though, the law of employee remuneration is not one that I have studied or written about in depth, but for readers who are interested in learning more about it the March 2014 issue of AIPPI-Journal of Japanese Group of AIPPI has an article (pp. 39-46) by former USPTO Director David Kappos and AIPPI Japan Vice President Kenichi Nagasawa titled Japan's Article 35:  Are Employee-Inventor Monetary Award Laws Impeding Japanese Innovation?  The article discusses the Japanese law on employee remuneration (which, according to the authors, is currently under consideration for reform) and compares the situation with the U.S. (where the matter is left up to the market), Germany, South Korea, and China.   

4.  Last but not least, thanks to GCR Global Competition Review and Shearman & Sterling for putting on a great conference on Antitrust & IP this past Monday in Brussels.  (I previously mentioned the conference on this blog here and here.)  Coverage of some of the sessions is available on GCR's website (in particular, articles here, here, and here, though you need a subscription to access).  I participated on a lively panel with Anne Layne-Farrar, David Teece, and Jorge Contreras.