Thursday, April 1, 2021

From Around the Blogs

I will be taking a blogging break for a week or so.  Meanwhile, here are some recent articles and posts from other sources that should be of interest to readers: 

1.  Law360 and Bloomberg Law both recently highlighted a cert petition filed by NetScout Systems, in a dispute brought by Packet Intelligence.  (For my previous post on this case, which concentrated on the patent marking issue, see here.)  Two of the three questions presented relate to patent damages, specifically enhanced damages:

1. Whether a finding of willful infringement justifying treble damages may be based solely on the defendant’s conduct following the filing of the suit.

2. If the defendant’s post-filing conduct can provide a basis for willful infringement, whether such a finding is adequately supported by evidence that (1) high-level executives did not read the asserted patents in detail but instead relied upon conversations with counsel to confirm good-faith and reasonable defenses; and (2) the defendant continued to sell the accused products while suit was pending, in reliance on its good-faith defenses.

The first question, at least, is one that would benefit from some more clarity, as would the broader issue (suggested by the rather case-specifically-drafted second question) of what sort of post-filing conduct, if any, is relevant to a finding of willfulness.  Whether the Supreme Court will be sufficiently interested in this topic to take the matter up, I don't know.

The third question presented relates to patentable subject matter.   

2.  Matthieu Klos published a post on JUVE Patent titled “Anti-suit injunctions are a road to nowhere”.  The post states that the Munich district court views an implementer's filing of motion for an antisuit injunction in China as indicating that the implementer is an unwilling licensee--and thus not entitled to raise the Huawei v. ZTE competition-law defense to a request by an SEP owner for injunctive relief.  According to Mr. Klos, "the judges probably want to put an end to the ongoing ASI spat" and "bring SEP holders and implementers back to the core of FRAND negotiations," which as I understand it would be consistent with the German courts' general reluctance thus far to set FRAND rates themselves. But is this approach consistent with Huawei v. ZTE?  The post says that Xiaomi is expected to appeal Judge Zigann's ruling (discussed here and here), so perhaps some further clarity will be forthcoming. 

3. Earlier this week Rebecca Slaughter, the Acting Chair of the Federal Trade Commission, announced (as expected) that the FTC would not be petitioning for certiorari in FTC v. Qualcomm, so the case is over.  For discussion, see articles on Law360, Bloomberg Law, and FOSS Patents.

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