1. Following up on my post this Monday on Judge Orrick's decision to grant an injunction forbidding Huawei from enforcing an injunction it obtained against Samsung in Shenzhen, China, David Long has posted an extensive discussion of the case on the Essential Patents Blog, and Mark Cohen provides some interesting context on injunctions, antisuit injunctions, and anti-anti-suit injunctions, on the China IPR Blog. Mr. Cohen also reports that "China will soon introduce punitive damages for IP infringements," in its upcoming fourth revision to the Chinese patent law. The introduction of such damages into Chinese law is something that has been under discussion for some time, and if it is now imminent this could be a very significant, indeed.
2. Eibhlin Vardy has published a post on the IPKat about yet another FRAND case involving Huawei, Conversant Wireless Licensing S.A.R.L v Huawei Technologies Co. Ltd, ZTE Corporation and Ors [2018] EWHC 808 (Pat), in which Mr. Justice Carr (Patents Court of England and Wales) ruled this past Monday that the court has jurisdiction to enter a global FRAND rate, even though sales of the allegedly infringing products within the U.K. account for less than 1% of global sales. I haven't read the opinion yet myself, but I'm inclined to think that both this case and the Huawei/Samsung litigation suggest a need for some sort of global solution to questions of jurisdiction and forum shopping for FRAND litigation.
Ms. Vardy also reports that next month the Court of Appeal will hear the appeal of Mr. Justice Birss' decision in Unwired Planet, over the course of six days. Well, it is a huge case.
3. Norman Siebrasse published a post on Sufficient Description on a recent Canadian case, Adir v Apotex Inc 2018 FC 346, involving the question of whether the possibility of outsourcing the production of a product intended for export should reduce the amount the defendant must disgorge for the infringement of the plaintiff's patent, where the evidence suggests that the defendant could have, but for noneconomic reasons wouldn't have, undertaken such outsourcing. Again, I haven't read the decision yet myself, but Professor Siebrasse makes what appears to me to be a valid critique of the court's decision not to reduce the award:
. . . the reward to the patentee should be commensurate with the value of the invention to the public; a valuable invention deserves a large reward, but an invention which is less valuable merits a correspondingly lesser reward. As the FCA explained in Lovastatin Damages [56], this is the rationale for considering the NIA [noninfringing alternative] in assessing damages: it is “only by comparing the patented invention to non-infringing alternatives can a court discern the market value of the patent owner’s exclusive right, and therefore his expected profit or reward.” On the facts in this case, the objective value of the Canadian patent was the value of the one-year head start that could be obtained by manufacturing in Canada as opposed to some other country. In holding that Apotex was not entitled to offset the profits it could have made by manufacturing abroad, Apotex has been required to disgorge more than the objective value of the invention, because of Dr Sherman’s idiosyncratic non-economic motivations. This is not consistent with the instrumental rationale for the patent system: the value of an invention to society does not turn on the identity or motivations of the infringer.
I would add only that, as Professor Siebrasse himself has pointed out elsewhere, the question of whether the potential outsourcing of production should count as a noninfringing alternative for purposes of reducing damages is something that U.S. courts may need to grapple with if, as I now expect, the Supreme Court overrules the Federal Circuit in WesternGeco (see here).
4. Finally, on Patently-O Dennis Crouch has published a post on the Federal Circuit's attorneys' fees decision in Rainere v. Microsoft, which was also the subject of my post yesterday.
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