Monday, October 27, 2014

Monday Miscellany: Patent Remedies, Protective Writs, and Preliminary Injunctions

1.  Ted Sichelman has published a short paper titled Meaning Is in the Mind of the Reader:  A Rejoinder to Burk, Cotter, and Lemley, in 93 Texas Law Review See Also 15 (2014).  Here is a link to the paper, and here is the abstract:
As beauty is in the eye of the beholder, meaning is in the mind of the reader. In three responses to my article, "Purging Patent Law of 'Private Law' Remedies," 92 Texas L. Rev. 517 (2014), Dan Burk, Tom Cotter, and Mark Lemley offer three distinct readings and, hence, attribute three distinct meanings. In this rejoinder to Burk, Cotter, and Lemley, I endeavor to convey to the reader my intended meaning by pointing out what I believe are mischaracterizations of my original article in Burk’s and Lemley’s responses. Additionally, I rebut various criticisms in all of the responses and stake out areas of consensus. 
For previous posts on Professor Sichelman's original paper and the responses by me, Dan Burk, and Mark Lemley, see here and here.

2.  Frank A. Angileri and David C. Berry have posted a short paper on ssrn titled The Federal Circuit's VirnetX Ruling Continues Focus on Requirements for Proving Patent DamagesHere is a link to the paper, and here is the abstract:
The U.S. Court of Appeals for the Federal Circuit historically has afforded litigants substantial leeway in applying economic theory to establish damages in patent infringement cases, as long as the theories are based on reliable economic evidence and establish direct causation of loss. In recent years, the Federal Circuit has issued a number of decisions addressing the issue of “apportionment,” i.e., apportioning value between patented and unpatented features in an accused product. In a recent decision, VirnetX, Inc. v. Cisco Systems, Inc., the Federal Circuit addressed the issue again and further explained how apportionment can limit acceptable damages testimony. Although apportionment has roots in 19th century cases, it likely will cause parties to reevaluate their approaches to proving damages, particularly in cases involving technologies embodied in components for today’s complex products. 
For my initial take on the VirnetX case (titled Federal Circuit Trashes Nash), see here.

3.  As I have discussed previously (quoting from this blog post of January 13, 2014 and from my book), "in Germany and Switzerland potential infringement defendants can 'file, ex parte, a "protective writ" (Schutzschrift) [also known in English as a "protective letter"] with a court in anticipation of a possible ex parte motion for a preliminary injunction on the part of a patentee. The writ explains why, in the defendant’s opinion, a potentially accused product does not infringe. The existence of the writ is not disclosed to the patentee unless and until the patentee moves for a preliminary injunction.'"  Miguel Montañá has previously blogged on the Spanish courts' somewhat mixed reaction to attempts to introduce the procedure in Spain (see here).  He recently published an interesting follow-up post on the Kluwer Patent Blog titled Will the New Spanish Patents Act Introduce "Protective Writs" in Spain?, which discusses a July 24, 2014 report of Spain's General Council for the Judiciary.  The report recommends formally introducing the procedure in Spain.  Sr. Montañá concludes, however, by expressing doubt whether the Spanish Parliament will have time to enact the proposed new legislation before the next elections take place.

4.  Also appearing on the Kluwer Patent Blog recently are two posts by Kristof Roox, titled Important Change in Belgian Patent Litigation:  The Belgian Supreme Court Adopts a Less Strict Approach to the Prima Facie Validity of a European Patent and Important Change in Belgian Patent Litigation (2): Belgian Judges Must Take into Account Foreign Judgments and Cannot Merely Rely upon the Suspensive Effect of an Appeal Against an Invalidity Decision.  According to the author, until very recently some Belgian courts had held that on a motion for a preliminary injunction a patent would be deemed prima facie valid even if the patent had been revoked by the EPO Opposition Division or held invalid by a Belgian court of first instance, if the effect of the revocation had been suspended pending appeal.  In judgments handed down in June and September 2014, however, the Belgian Supreme Court has taken a very different approach, holding first that a court of first instance's decision that a patent is invalid terminates a preliminary injunction that has been granted, and second extending this principle so that (in determining whether to approve a seizure order) a Belgian court must take into consideration an invalidation decision rendered in another jurisdiction concerning a European patent. 

5.  Finally, Spadika Jayaraj published a post recently on Spicy IP titled Public Interest Prevails?  Bristol-Myers Denied Interim Injunction in Patent Infringement Suit Regarding Export of HIV Drug to Venezuela.  According to the author, the court's order is not yet available online, but she notes that 
In Roche v. Cipla, Justice Ravindra Bhat of the Delhi High Court had read in “public interest” into the 3 step test for temporary injunction, by making it a factor to consider when testing whether there is irreparable injury. That was a big moment in India’s Access to Medicines jurisprudence. While I don’t know if the public interest argument was instrumental in the Court’s decision in the present case, it is still great to see an Access to Medicines angle being argued in the Courts.
For further discussion of the Roche case (Hoffmann-La Roche Ltd. v. CIPLA Ltd., 2008 (37) PTC 71 (High Ct. Delhi), see Kalyan C. Kankanala, Arun K. Narasani & Vinita Radhakrishnan, Indian Patent Law and Practice 245-46 (Oxford Univ. Press 2010).  For other discussions of injunctive relief in India on this blog, see here and here

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