Wednesday, January 29, 2020

From Around the Blogs, Part 3

1.  On Patently-O, Dennis Crouch published a post last week titled This week in Property: Efficient Infringement.  The post discusses a real property case, Jacque v. Steenberg Homes,  209 Wis. 2d 605 (1997), the rejected the efficient infringement concept and awarded punitive damages of $100,000 for a trespass to land (despite trivial actual harm), and compares that case to the patent landscape post-eBay. Very interesting post--and I appreciate the citation to my 2001 paper with Roger Blair--though I would disagree with the statement that, under current law, "Patent rights are protected with a liability rule."  Sometimes they are, but the statistics I've seen show that prevailing patent owners still get injunctions about 75% of the time when they request one.  

Professor Crouch also had an interesting post yesterday titled $85.23 million for WiLAN against Apple., discussing a recent damages judgment from the Southern District of California.

2.  Norman Siebrasse published some recent posts on a Canadian case, Seedlings Life Science Ventures, LLC v Pfizer Canada ULC 2020 FC 1, two of which deal with damages issues.  The first, titled Use of ex Post Information in Assessing a Reasonable Royalty, discusses the judge's statement (in dictum) that, for purposes of calculating a reasonable royalty, "The hypothetical negotiation takes place at the time of first infringement. . . . Therefore, the exercise must be informed by the then existing situation. Changes that took place later are not relevant, as the parties would not have been aware of them at the time of the hypothetical negotiation. Subsequent events may only be relevant insofar as it can be said that they would have been expected or anticipated by the parties at the time of negotiation.”  Professor Siebrasse argues, for reasons that he and I have discussed in other work he cites in the post, that "[u]sing only information available at the date of first infringement might result in undercompensation . . . but it might also result in overcompensation."

The second, titled Can an Entity That Does Not Practise the Invention Be Entitled to an Accounting?, discusses the judge's suggestion (in dictum) that a nonpracticing entity cannot recover an accounting of the defendant's profits.  Siebrasse argues that a strict rule forbidding an accounting is unwise, insofar as "a reasonable royalty . . . may not provide an adequate deterrent against infringement" while "punitive damages are arguably an excessive deterrent."  It's an interesting argument:  if we need to have a remedy that goes beyond compensatory damages, would an award of the infringer's profits attributable to the infringement be preferable to punitive or enhanced damages?  (Note, by the way, that there is conflicting Japanese precedent on the question whether nonpracticing entities can recover an award of the infringer's profits.  See discussion here.)

3.  On JUVE Patent, Matthieu Klos published a post titled FRAND: Unwired Planet and Huawei in advanced settlement negotiations.  The piece discusses whether the U.K. Supreme Court would still publish an opinion in this case if parties settle.

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