Friday, March 13, 2015

Friday Miscellany: TRIPs Enforcement of IP Rights, eBay, Recent Federal Circuit Damages Cases

1.  Because it touches on, among other things, IP enforcement under TRIPs, readers might be interested in a paper by Andrea Filipetti and Daniel Archibugi titled The Globalization of Intellectual Property RightsHere is a link to the paper, and here is the abstract:
There is a heated debated – in academia and in policy circles – about the usefulness of a stronger global regime of intellectual property rights (IPRs). Supporters of strong IPRs argue that they will increase investments in R&D and innovation and disseminating it across countries. Detractors respond that this would imply another burden on developing countries, making slower and more difficult their catching up. The introduction of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1994 has even further polarized these positions. We argue that the relevance of IPRs in facilitating or obstructing technology transfer has largely been exaggerated. Innovation-based development is neither hampered nor facilitated by strong or weak IPRs, but rather by the willingness to invest resources in R&D, education, and infrastructures. While TRIPS have effectively represented an attempt to generate a global regime of IPRs, its economic effectiveness has been rather limited since enforcement and policing of IPRs infractions are still firmly in the hands of national authorities.
2.  Ryan Holte has posted a paper on ssrn titled The Misinterpretation of eBay v. MercExchange and Why: An Analysis of the Case History, Precedent, and Parties, Chapman L. Rev. (forthcoming 2015).  Here is a link, and here is the abstract:
eBay v. MercExchange, 547 U.S. 388 (2006) is approaching a decade of citation and, in that time, the landscape for injunctions in patent infringement cases has changed dramatically. Can revisiting the case give us a better understanding of how the standards for injunctions should be understood post-eBay, perhaps in contrast to how they are understood? The purpose of this article is to extract that detail regarding the eBay injunction denial from primary sources. This research focuses solely on the injunction issue post-trial to case settlement. The article next assesses the impact of eBay on district courts, inventors, news stories, intellectual property investors, and others over the last decade. Finally, based in part on a review of court opinions considering permanent injunctions since eBay, and court citations to eBay’s concurring opinions by Chief Justice Roberts and Justice Kennedy, the article argues that the case has largely been misinterpreted by district courts and others for various reasons including: improper reliance on Justice Kennedy’s concurrence; misleading media coverage; eBay’s public relations efforts to spin media attention in its favor; a district court judge generally biased against patent owners and uniquely concerned with the wide disparities between the parties, the motives of MercExchange, and the vast consequences an injunction may bring against the world’s largest auction marketplace; and the fact that the case settled after the district court’s second denial of an injunction but before the Federal Circuit could revisit the issues. The article concludes by emphasizing that eBay should be cited for what the Court actually held, and not for how the case has been (mis)interpreted these last ten years.
3.  Brian W. Nolan and B. Clayton McCraw have published a paper titled In Dredging up the Past, the Federal Circuit Makes Patent Damages More Difficult to Prove; But Has It Left Some Avenues Open?, Bloomberg BNA Patent, Trademark & Copyright Law Daily, March 4, 2015 (available here, but behind a paywall).  The authors discuss recent Federal Circuit case law and provide tips for practitioners preparing a patent damages case, with special emphasis on the entire market value rule, survey evidence, and comparable licenses.

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