A couple of weeks ago I blogged about Amandine Léonard's article L’abus de droit dans le contentieux des brevets: Entre divergences nationales et vœu d’harminisation de la jurisdiction unifiée du brevet—une piste à suivre? (“Abuse of right in patent litigation: between national differences and the desire for harmonization in the unified patent jurisdiction—a path to follow?”), published in the January 2017 issue of Propriété Industrielle (pp. 10-14). I thereafter learned that Ms. Léonard has published two other very interesting papers, in English, on the abuse of right doctrine. (In case you're not familiar with abuse of right, it's a civil law doctrine--potentially applicable in all types of cases, not just patent cases--that in recent years courts in the Netherlands and Japan invoked to prevent Samsung from asserting claims for injunctive relief in litigation charging Apple with the infringement of certain FRAND-committed SEPs. I've discussed the Japanese case several times on this blog (e.g., here), and the Dutch case in this article.)
Anyway, the first of the two English-language articles by Ms. Léonard is ‘Abuse of Rights’ in Belgian and French Patent Law – A Case Law Analysis, 7 JIPITEC 30 (2016). Here is a link to the article, and here is the abstract:
This paper examines what types of actions undertaken by patent holders have been considered as abusive in the framework of French and Belgian patent litigation. Particular attention is given to the principle of the prohibition of “abuse of rights” (AoR). In the jurisdictions under scrutiny, the principle of AoR is essentially a jurisprudential construction in cases where judges faced a particular set of circumstances for which no codified rules were available. To investigate how judges deal with the prohibition of AoR in patent litigation and taking into account the jurisprudential nature of the principle, an in-depth and comparative case law analysis has been conducted. Although the number of cases in which patent holders have been sanctioned for such abuses is not overabundant, they do provide sufficient leads on what is understood by Belgian and French courts to constitute an abuse of patent rights. From this comparative analysis, useful lessons can be learned for the interpretation of the ambiguous notion of ‘abuse’ from a broader perspective.
The other paper is coauthored with Richard Steppe and is titled Catching Patent Trolls in the Net of Abuse of Rights: Applying the General Principle of Union Law in the Context of the Unitary Patent Package, 39 EIPR 163 (2017). The paper is available in hard copy and on Westlaw. Here is the abstract:
The phenomenon of "patent trolling" is recurrently alleged to obstruct the founding purposes of patent law. This contribution assesses to what extent the prohibition of abuse of rights, as a principle of Union law, may serve as a corrective mechanism. First, the article sets out the relationship between "patent trolls" and other (e.g. non-practicing) entities, establishing a behavioural definition of the former. Secondly, EU and national perspectives on abuse of rights are outlined and their applicability to patent rights tested. Lastly, the criteria of abuse are applied to trolls’ behavioural characteristics within the context of the Unitary Patent Package.
"Non omne quod licet honestum est. Summum jus, summa injuria; malitiis non est indulgendum."
I like the Latin maxims, which I believe come from Roman law and which might be translated as "Not everything that is permitted is honorable. Extreme justice is extreme injustice. The wicked are not to be indulged." Perhaps I will use them myself if I ever get back to my contemplated project on the comparative law and economics of wrongful patent enforcement . . . .