From Around the Blogs

1. On Law360, Brian Johnson published an expert analysis titled How Parties Can Prep for Global FRAND Jurisdictional Battles.   The essay touches on several issues of importance in the ongoing SEP wars, including whether antisuit injunctions ever are or should be available to prevent a party from proceeding with litigation in the first-seised forum; the capabilities of the forum; and the question of whether the exercise of jurisdiction to determine global rates can ever constitutes "international coercion."  He closes with some practical considerations, including the "need to act quickly to obtain [one's] preferred venue."  

For my recent thoughts on these issues, see here.

2.  On the Kluwer Patent Blog, Matthieu Dhenne published a post titled Pemetrexed in France Act 2: 1 PI + 4 millions.  The post discusses a recent decision in France (which I have not yet obtained a copy of, myself, so I'm going on M. Dhenne's description here) granting a preliminary injunction against the marketing of (yet another) generic Pemetrexed product, and awarding provisional damages in the amount of  €4 million.  The decision to grant the preliminary injunction touches on issues courts in France and elsewhere have addressed in recent years concerning claim construction under article 69 of the EPC.  As for the provisional damages, M. Dhenne is critical of the court's use of a 25% royalty rate multiplied by the defendant's turnover.  He describes the rate as having "no basis . . .   except that it is an increased rate compared to a normal one," and the base (turnover) as having no textual basis in article L 615-7 of the French IP Code, which allows royalties to be awarded as a lump sum.  (But I thought it was common to use turnover as the royalty base in France, and isn't €4 million itself a lump sum?)  He also published a follow-up to a post I mentioned recently, this one titled The FRAND Lectures (Part 2): which Judge can order a cross-border injunction?.  In the post, Professor Anne-Catherine Chriariny analyzes EU law relating to cross-border injunctions under the Brussels I Bis Regulation.

Also on Kluwer are two posts by Vaishali Mittal titled Implementors must be given access to FRAND agreements: Delhi High Court, Part 1, and Implementors must be given access to FRAND agreements: Delhi High Court, Part 2.  The author discusses the decision of the Delhi High Court in the InterDigital/Xiaomi dispute in which "[t]he Court held that that Xiaomi’s employees must necessarily have access to InterDigital’s third party patent license agreements, so that Xiaomi may put up an adequate defense in the suit filed by InterDigital with respect to the infringement of its 3G, 4G Standard Essential Patents (SEPs)."  This matter also has been the subject of discussion recently on the SpicyIP Blog, including a more critical assessment here.

3.  On FOSS Patents, Florian Mueller published a post titled European Commission's expert group report on standard-essential patents uses misnomers "license to all" and "access to all".  The post discusses the recently published document titled Group of Experts on Licensing and Valuation of Standard Essential Patents ‘SEPs Expert Group’ - full contribution.  While I make my way through the document itself (it's long, and it's been a busy month), which I may have more to say about in due time, I'll just note for now that Mr. Mueller makes what I think may be a very good suggestion, namely that we abandon use of the terms "license to all" and "access to all," which he views as being somewhat misleading, in favor of "implementer's choice" and "patentee's choice."  I recall that a few years ago someone suggested that I refrain from using the term "FRAND-encumbered," which sounds kind of negative, in lieu of the more neutral "FRAND-committed," and I have mostly done so ever since.  Maybe this will be another such change worth making.  

Mr. Mueller has published one follow-up article here, as well as a follow-up to his recent post on the Munich Court's referral to the CJEU on a question relating to preliminary injunctions.