From Around the Blogs Part 2: FRAND Issues in China, Preliminary Injunctions in Spain and Ukraine

1.  On the IAM Blog, Jill Ge recently published a post titled How a Chinese Court Would Have Decided the Unwired Planet Appeal.  Ms. Ge concludes that (1) as in Unwired Planet, "it is probable that Chinese courts can adjudicate a global FRAND licence"; (2) unlike Unwired Planet, Chinese courts would probably adopt the hard-edged non-discrimination principle (which is what the EWCA thought too); and (3) Chinese courts "would consider the parties' negotiation behaviours as well as the reasonableness of the offers made during negotiation," as reflected for example in the Shenzhen court's recent Huawei v. Samsung decision. 

(Interestingly, Justice Carr of the Patent Court for England and Wales had concluded in April 2018 that Chinese courts can't set a global FRAND rate.  See the write-up on IPKat here.  Interesting.)

Also of interest on IAM is an opinion piece by Jonathan Stroud titled It's Time to Sort Out the Connected Car Disconnect, discussing some recent FRAND-related developments as they relate to connected cars.  Both pieces are highly recommended.

2.  On the Kluwer Patent Blog, Miguel Montañá published a post titled Court of Appeal of Barcelona revisits to what extent validity may be analysed in preliminary injunction proceedings.  According to the post, in the mid-2000s judges of the Commercial Courts of Barcelona had largely come around to the view that, on a motion for a preliminary injunction, courts could not "examine validity in depth," but rather that validity should be presumed absent "very robust indicia," presented by the opposing party, supporting invalidity.  More recent decisions, however, had departed from this practice and began "holding profound validity discussions," involving expert testimony and cross-examination.  According to the author, however, an October 2018 decision of the Court of Appeal concluded that the court of first instance's analysis of validity was excessive, potentially displacing the analysis that would take place in the main proceedings.  To the same effect is a discussion of an April 2018 decision of the same court, as described in a post on Kluwer by Adrian Crespo.  According to the author, this decision too "clarifies that, while validity may be discussed, the analysis should not reach the same level of depth as in the main proceedings."

3.  And again on Kluwer, here is a post by Ilarion Tomarov titled Ukraine:  Interim Injunctions in Pharma Cases, discussing a decision of the Ukrainian Supreme Court in Merck Sharp & Dohme Corp. v. Aurobindo Pharma Ltd.  I won't try to summarize the post here, but the upshot is that the court appears to be more favorable towards allowing patent owners to obtain interim injunctions, particularly where a refusal to grant such relief would mean that the patent owner, if successful at trial, would face "considerable expenses to remove from the market and . . . destroy the infringing products."