Friday, May 3, 2019

From Around the Blogs: Quintuple Damages in China, Fordham IP Conference, Willful Infringement in the U.S.

1. The China IPR Blog recently published a post titled Trademark Law and AUCL Revisions Passed Into LawI bring it to the attention of readers of this blog because the revision includes changes to China's trademark and unfair competition laws which will permits courts to award up to quintuple damages for wilful misconduct, or statutory damages of up to RMB 5 million.  (For a follow-up post on the China IPR Blog, see here.)  Similar changes, as I have noted previously, appear to be in the works for the next revision of China's patent law. 

Also on the subject of Chinese IP law, I recommend a recent post on Kluwer by Hui Zhang, Hanmei Wang, and Xiang Li titled .  The post discusses a recent case in which the trial court entered a judgment of infringement and a permanent injunction, leaving the question of damages to be determined at a later proceeding; the Supreme People's Court IP Tribunal affirmed on interlocutory appeal.  The authors state that the case is significant in that Chinese courts previously had not entered such interim judgments, or in general permitted interlocutory appeals.  The authors also state that China might eventually moves from a bifurcated system (like Germany's) to one in which validity and infringement and determined at one trial.  Finally, Norman Siebrasse alerted me to this article on the IAM Blog on the phenomenon of so-called reverse patent trolls in China.

2.  The IPKat has been publishing write-ups of various sessions held at the recent Fordham IP Conference.  The competition law panel in which I participated is not one of them, but readers of this blog may be particularly interested in Annsley Merelle Ward's post on the FRAND panel.

3.  On Law360, Jonah Mitchell and Nicole Medeiros have published an expert analysis titled Navigating Willfulness in Patent Cases 3 Years After Halo.  The article includes some interesting post-Halo statistics on how often willfulness is tried, its possible impact on jury determinations of infringement, and how often district judges enhanced damages following a finding of willfulness (less than a third of the time!).  It also highlights the difference of opinion among the district courts on whether willfulness can be based solely on conduct occurring subsequent to the filing of the complaint, and it discusses various strategic considerations surrounding proof of subjective intent.  This is a very good article--though it makes me even more skeptical than I already was that it is a good idea (1) for the applicable legal standards to make the infringer's subjective intent such an important issue, and (2) to rely on juries to decide willfulness.  But that is another story . . .

And this just in:  Apparently the Antitrust Division of the DOJ last evening filed a letter asking Judge Koh to limit any remedy she might impose against Qualcomm, in the event she rules in favor of the FTC.  Here is a copy of the letter.  For discussion, see articles on Bloomberg, FOSS Patents, Law360, Reuters, and the Wall Street Journal.  I wonder when the last time was that the DOJ did something like that in an FTC case? Ever?

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