Friday, October 16, 2020

From Around the Blogs and Elsewhere

I'm going to take a week off from blogging.  Here are some items to tide you over.

1.  Matthew Bultman published an article titled Patent Litigators Add to Playbook with Anti-Suit Injunction, Bloomberg Law, Oct. 8, 2020.  The article discusses, among other things, some of the recent developments in this area, including the recent antisuit injunctions issued in China (see also, e.g., here and here).  (It also quotes John Carlin, Professor Jorge Contreras, and me.)  Relatedly, Florian Mueller published a post on FOSS Patents titled In the increasingly insane world of patent litigation, antisuit injunctions are of no more value unless accompanied by anti-anti-antisuit injunctions--ex parte, of course.  Also on Law360 is an analysis by Erik Puknys and Michelle Rice titled SEP Users Should Jettison Antitrust For Patent, Contract Law.

2. On EPLaw, Luca Giove and Filippo Biancotto have published a post titled IT-The Disgorgement of Profits from the Patent Infringer.  The post links to a longer summary, and to the original decision in Italian.  If I'm understanding correctly, the Court of Appeal of Milan held that the plaintiff was entitled to recover only the portion of the defendant's profit attributable to the infringing cartoning machines, and not the defendant's entire profit on sales of entire product lines that include those machines.  The plaintiff could recover the entire profit only if it showed that the sales wouldn't have been at all absent the infringing machines.  Also on EPLaw is a post by Jeroen Boelens titled NL-Novartis v. Mylan/Deferasirox, discussing a recent decision in which a Dutch court granted a cross-border injunction.  For additional discussion of this case, see this write-up by Amy Sandys on JUVE Patent.

3.  Circuit Judge Paul R. Michel (Ret.) and John T. Battaglia, Esq. published an essay titled eBay, the Right to Exclude, and the Two Classes of Patent Owners, 2020 Patently-O L.J. 11.  The article purports to "address the disparate-treatment problem that currently defines the U.S. patent system. Those entities that manufacture a product claimed by a patent, and successfully enforce that patent in court, often still obtain an injunction, consistent with the “right to exclude others” that Congress granted to “[e]very patent. But for nearly 15 years, those entitles that invest in invention rights and buy and license patents—be they university research arms or non-practicing licensing entities (NPEs or so-called 'trolls')—often haven’t bothered even seeking injunctive relief in litigation. Why?"  Well, one obvious reason, it seems to me, is that NPEs have a difficult time proving irreparable harm/inadequate remedy at law; another is that the risk of patent holdup, properly defined, tends to tilt the balance of hardships in favor of implementers.  Of course, you won't see any mention of holdup in the essay; or anything substantiating the assertion that denying injunctions has a negative effect on the incentive to invent.  There's no discussion of the corresponding social costs of patents, or of the empirical evidence (see here and here) that eBay has not had a negative impact on innovation.  No discussion.  No attempt at refutation, or presentation of countervailing evidence.  Just more of the same-old, same-old.  Well, except for the paean to the Supreme Court's 1908 Continental Patent Bag opinion, which (to be fair) the Supreme Court in eBay said it wasn't overruling (but then, courts have been known to say things like that while distinguishing an old precedent into oblivion).  In any event, Continental Paper Bag seems like kind of an odd case for the authors to be praising, given that the patent owner in that case actually was a practicing entity:  it just wasn't working the patent in suit, which it had acquired and was enforcing for the purpose of keeping a competitor from chipping away at Continental's market power.  See Christina Bohannan & Herbert Hovenkamp, Creation Without Restraint: Promoting Liberty and Rivalry in Innovation 295-98 (2012) (describing "“the Paper Bag rule" as "catastrophically negative” when the infringement is inadvertent, “when the shelf life of the patented invention is shorter than the term of the patent,” and “when the acquirer is a dominant firm, or monopolist, and the acquisition serves to maintain a monopoly in a market that would otherwise have been competitive”).    

4.  Makan Delrahim, head of the USDOJ's Antitrust Division, presented "Video Killed the Radio Star": Promoting a Culture of Innovation, another of his speeches praising his agency's ill-conceived "New Madision" approach to the IP/antitrust interface.  He also some nice things to say about Sisvel v. Haier and Unwired Planet v. Huawei (and discusses several other antitrust topics at greater length).   

5. Norman Siebrasse has published the second post in his series on Nova Chemicals Corp. v. Dow Chemicals Co., 2020 FCA 141, this one titled Constructing the “But For” World Is Not a Purely Subjective Inquiry.  Highly recommended, as is the first in the series (here).  For my brief take on the decision, see here.

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