Wednesday, January 2, 2019

News from Canada, China, Spain, and the U.S. on Patent Remedies, FRAND

Here are some interesting developments that occurred over the holidays:

1.  As I mentioned a few weeks back, in late October the Government of Canada proposed some amendments to Canada's Patent Act, including a provision stating that FRAND commitments are binding on subsequent assignees.  The provision has now been enacted into law, as section 190 of Bill C-86.  Hat tip to Norman Siebrasse for calling this to my attention.  

In other news from Canada, Professor Siebrasse also published a post on a fee award in Teva Canada Ltd. v. Janssen Inc., in which the court awarded a lump-sum fee of 25% of what it viewed as a reasonable attorneys' fee.

2.  As I reported more recently, on December 7 Makan Delrahim, the head of the U.S. Department of Justice's Antitrust Division, announced that the USDOJ was withdrawing from the 2013 USDOJ/USPTO Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments.  A few days later I published my own analysis on Law360, in a piece called DOJ Speech May Leave SEP Implementers In Dire Straits.  This past week Bloomberg News published a piece on the Delrahim speech titled Changing U.S. Patent Policy on Tech Standards Stirs Concerns, which has quotes from Mark Lemley and Jorge Contreras, among others. 

3.  On the China Patent Blog, Erick Robinson published a short post titled Highest Court in China Overturns Ridiculously Low Royalty in Interdigital v. Huawei, which in turn cites a short article on Bloomberg News titled Interdigital Granted Huawei Patent Case Retrial by China SPC.  According to these posts, the Chinese Supreme People's Court has reversed and remanded for a recalculation of the royalty Huawei owes InterDigital.  Many thanks to Jim Harlan of InterDigital, who brought his to my attention--and who confirms that this is the same case (which readers may be familiar with) dating back to 2013-14, in which the original decision awarded InterDigital a royalty of just 0.019% of the sales price of the accused products.  This could be a very important development, so I'm a little surprised it hasn't gotten much attention yet--though I suppose that the holidays have something to do with that.  If I get hold of a copy of the decision itself, or a translation of it into English, I will pass them along, but for now here is the announcement from InterDigital's 8K
Huawei China Proceedings

On December 24, 2018, InterDigital was notified that the Chinese Supreme People’s Court (the “SPC”) granted InterDigital’s petition for retrial of the October 16, 2013 Guangdong Province High Court decision which affirmed a Shenzhen Intermediate People’s Court ruling that the royalties to be paid by Huawei for InterDigital’s 2G, 3G and 4G essential Chinese patents under Chinese law should not exceed 0.019% of the actual sales price of each Huawei product.  The SPC also issued a mediation order that terminated the proceeding.  The SPC’s grant of InterDigital’s retrial petition suspends enforcement of the decision of the Guangdong High Court and, combined with the SPC’s issuance of the mediation order, effectively vacates the Guangdong High Court’s decision.
4.  On the Kluwer Blog, Adrian Crespo published a brief post titled .  According to the post, the decision of November 9, 2018 tightens the requirements for obtaining a preliminary injunction based on infringement allegedly occurring a trade fair.  For other (recent) discussion of preliminary injunctions in Spain, see here.

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