Wednesday, February 17, 2016

From Around the Blogs: Patent Remedies in Canada, the U.K., and Denmark

1.  Norman Siebrasse has published a couple of damages-related posts on Sufficient Description.  The first, from January 27, is titled Inequitable Conduct by Patentee:  Defence v Reduction of Damages, and discusses a recent Canadian federal court decision in which the court concluded that some forms of inequitable conduct on the part of the patentee do not bar recovery entirely but rather may reduce the patentee's damages.  I'm inclined to think that is a sensible result, as I discussed here at pp. 750-51; one problem with the U.S. version of the doctrine, by contrast, is that is an all-or-nothing proposition.  A gradation of possible sanctions might be proportionate to the offense.  The second post, from February 5 and titled $2.9 Million Award is 30% of Actual Legal Fees, discusses a recent case in which the judge exercised his discretion and made an upward departure from the standard attorneys' fee that would have been awardable in the type of case at issue (which would have amounted to only 11% of actual fees incurred) and awarded an amount equal to 30%, which at least is closer to full compensation.

2.  The IPKat Blog on January 27 published a post titled Storm in a C Cup:  Mr Justice Carr Refuses Injunction and Account of Profits in Stretchline v. H&M Spat.  The parties had previously settled patent infringement litigation, but the plaintiff later sued the defendant for breaching that agreement by selling allegedly infringing fabric.  The court agreed that there was a breach but denied an injunction on the ground that the defendant had stopped infringing and the infringement was unlikely to recur, and also denied a request for an accounting of profits.  More recently, on February 2 the blog published a post (authored by Brian Whitehead of Kempner & Partners, which represented the plaintiff) titled Inquiry as to Damages:  No Longer a Rara Avis?, discussing a case in which the IP Enterprise Court (which handles relatively small-stakes patent disputes in England & Wales) awarded £0.5 million in lost profits just a few weeks after a December 2015 hearing.  The author concludes that "[t]his represents another means by which the IPEC improves access to justice for litigants, particularly for small and medium enterprises."  Another post on this case, authored by Emma Muncey and Rachel Mumby of Bristows LLP and titled AP Racing v. Alcon Compone, was published on EPLaw Blog on February 10, and also links to the decision itself.  

3.  Anders Valentin recently published a post on the Kluwer Patent Blog titled A Matter of Urgency--PI Application Turned Down for Lack of Urgency.  The post discusses a Danish case in which the court denied the patent owner, Minkpapir, a preliminary injunction which it applied for in 2015 despite its presumed knowledge that the defendant had been marketing an allegedly infringing product since 2011.  As I have mentioned several times before (more recently here), urgency is an important consideration for obtaining a preliminary injunction in Germany too.

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