Friday, August 8, 2014

New Papers on Injunctions in the U.S. and Germany, Patent Litigation in Russia, and Other Matters

1.  John Golden has published a paper titled Litigation in the Middle:  The Context of Patent Infringement Injunctions, 92 Texas Law Review 2075 (2014).  Here is a link to the paper, and here is the abstract:
With the advent of the “Information Age,” most judges, lawmakers, and scholars tend to focus on high tech fields when discussing U.S. patent law. However, in this article, Professor Golden suggests that there may be substantial commonalities between the subject matter of present-day patents and the subject matter of patents typical of the Industrial Revolution. While performing an empirical study, Professor Golden found that many of the patents issued today cover relatively straightforward “machines and manufactures” and, further, that these simple patents play a disproportionate role in the granting of injunctive relief by U.S. district courts. These relatively mundane cases are surprising given the conventional view that patent litigation involves high stakes and costs. Professor Golden explores the implications of this discovery by first using a rational profit-maximizer model to confirm the commonly invoked bases for the view that patent litigation involves high-stakes. He then discusses the nature and contents of a patent-infringement injunction data set. Finally, Professor Golden explores potential explanations for the frequent mundanity of the subject matter targeted by injunctions in that data set. 
2.  Rainer Kuhnen has published a short paper titled Timeliness and Validity in Seeking Injunctions in Germany in BNA Bloomberg's World Intellectual Property Report, available here (behind a paywall).  Here's the intro:
Preliminary injunction actions are a very useful tool for the patentee, in Germany and elsewhere, to combat patent infringement. They are also useful in Germany with respect to infringement of utility models. Recent case law provides some thought regarding proof of timeliness and validity in such German actions.
For other discussion of preliminary injunctions in Germany on this blog, see here, here, here, and here.

3.  Vadim Savvateev has published a paper titled Litigating Technology Patent Infringement in the Russian Federation, 41 AIPLA Q.J. 671 (2013).  Here is a link to the paper on ssrn, and here is the abstract:
This Article examines the current state of patent laws and the enforcement of patent rights in the courts of the Russian Federation, focusing on the doctrinal fundamentals, costs, and outcomes of enforcing invention or utility model patents in Russian courts. This Article concentrates specifically on litigation of technology patent infringement.
Corporations mitigate the risks associated with investing in globally marketed technologies by obtaining patents in key national jurisdictions. The value of patent rights in a particular jurisdiction is the difference between the cost of obtaining patent rights and the risk of enforcing those rights in national courts.  
Dr. Savvateev discussed remedies at pages 722-28.  For previous discussion on this blog of some recent changes to the law of patent damages in Russia, see here, here, here, and here

4.  Matthew R. Jones has published The Fall and Rise of the Italian Torpedo in European Patent Litigation in the July/August 2014 issue of Landslide, a publication of the ABA Section of Intellectual Property Law (available here).   Here is the abstract:
The "Italian torpedo" is one of the most interesting and creative strategies in patent litigation.  But what is it and what might patentees do to defend against it?
I also discuss torpedo actions in my book at pages 250-55, and on this blog here, here, and here.

5.  Also in the July/August Landslide is an article by Eric A. Rudich, Lewis M. Koppel, and Michael P. Padden titled Post-Uniloc Reasonable Royalty Damages:  What to Do Now and How to Present It to the Jury?  Here is the paper, and here is the abstract:
The article reviews the economic approaches that have been used to meet the Uniloc decision and also discuses how juries determine damages, as well as how damages claims may be best presented to juries.
In case you're not familiar with it, Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292 (Fed. Cir. 2011), is the case in which the Federal Circuit  stated that “[e]vidence relying on the 25 percent rule of thumb is . . . inadmissible under Daubert and the Federal Rules of Evidence because it fails to tie a reasonable royalty base to the facts of the case at issue.”

6.  Norman Siebrasse published an interesting post yesterday on Sufficient Description titled A Principled Approach to Prejudgment Interest.  He argues that interest should be compensatory, and that in principle this should mean that courts award compound, not simple interest.  I fully agree; see my book p.277, where I critique the practice in Germany and the U.K. of not awarding compound interest in patent cases.  See also my post from this past May for citation to a recent paper on the comparative law of interest.

7.  Finally, I recently discussed the topic of "hot tubbing" and patent damages here, so I was interested to see that there will be a session titled "In the hot tub" – considering the use of hot tubbing in damages claims, moderated by Nicholas Heaton and with presentations by Helen Jenkins, Stephen Morris, David Parker, and Jon Turner, at GCR's Sixth Annual Competition Litigation Conference in London on October 7.  Here is a link with more information.  I recently spoke at one of GCR's conferences in Brussels and thought that event was quite good.

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