Monday, May 17, 2021

From Around the Blogs

1. Bashayer Almajed and Bashar Malkawi published a post on IPKat titled Damages for Patent Infringement: The Chinese PerspectiveThe post notes, among other things, that statutory damages remain the most common type of patent damages in China, and that on June 1 the highest amount of statutory damages permitted rises to RMB 5 million, and that up to quintuple actual damages or profits will be permitted for willful infringement.  The authors also have posted an article on ssrn titled Royalty Rate Determination in Patent Infringement Cases: The U.S. and China Compared, 17 J. Intell. Prop. L. & Prac. __ (forthcoming 2022).  Here's a link, and here's the abstract:

Intellectual Property is the cornerstone for a thriving economy. Indeed, intellectual property protection is a major determinant of economic growth. One important part of this legal and economic environment is patent. Licensing plays an important role in patent as it is one of the methods by which an intellectual property owner can reap the benefits of his labor.

This article will focus on determining royalty rates and damages in U.S. and China's patent cases. While the article focuses on court decisions, it also reviews the different laws to see the manner in which these laws have played in the development of methods for calculating royalty rates and damages. There are different factors that may not allow for the adherence to a one-size fits all recipes for calculation of royalty rates and damages. Each country adopts its own methods. The remainder of the article is organized as follows. Section II of this article examines the different methods employed in the U.S. legal system to facilitate royalty rate and damage calculations for patents. This section examines methods such the 25 percent rule, Georgia-Pacific factors, reasonable royalty rate, the analytical approach, and the smallest salable practicing patent unit (SSPPU) method. Section III of this article looks at the Chinese model for damage calculations. The section explores China’s shift from the traditional framework for calculating damages in cases of infringement relying on actual compensation to statutory and punitive damages and the key factors that played in this transition towards. Section IV provides a set of conclusions.

I would advise the authors to clarify earlier than they do that Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292 (Fed. Cir. 2011), disposed of the 25% rule of thumb in the U.S.

2.  Another recent post on IPKat, by Hayleigh Bosher, is titled Shady's back: Quantifying damages for copyright infringement of Eminem's album, and discusses a recent decision of the Intellectual Property Enterprise Court awarded £7,452.50, under the "notional license" framework, as a reasonable royalty for copyright infringement.  The court rejected a claim for additional damages under a "loss of opportunity" theory.

3.  On Law360, Richard Kamprath and Abigail Clark published an article titled Hedonic Regression Shows Promise For Modeling IP Damages.  The authors discuss the use of hedonic regression in the recent VLSI v. Intel case, which produced a $2.1 billion judgment, and its previous use in some antitrust and products liability cases.

4. Last week, the Seattle Times published a story by Paul Roberts titled ‘Any business with a web presence is a potential target’: State sues ‘patent troll’ targeting Washington firms.  According to the article, the case is the first one brought under Washington State's "Patent Troll Protection Act, a 2015 law that, according to the Attorney General’s Office, was intended to “‘"crack down"’ on ‘"patent trolls"’ who harass and threaten small businesses with patent infringement claims.'" As readers may be aware, several U.S. states began enacting legislation against alleged bad-faith patent assertions in the mid-2010s, though to my knowledge they haven't been used much.  Stories this week about this lawsuit can be found on Law360 and Bloomberg Law.

Update:  Josh Landau just called to my attention an article by Brian Craig, titled Standard of proof for claims under Oregon bad-faith patent enforcement law preempted by Patent Act, discussing a case last year in which a federal court dismissed without prejudice a counterclaim against what would appear to be a company related to the patent owner in the Washington case (asserting a different patent, however) under Oregon's Unlawful Trade Practices Act, for failure "to allege facts demonstrating the objective baselessness of the plaintiff’s claim, ascertainable loss, and reliance."  The preemption defense raised by the patent owner in this case presumably also will come up in the Washington lawsuit.  For a critical appraisal of the Federal Circuit's preemption standard for state-law claims implicating patents, see Paul Gugliuzza, Patent Trolls and Preemption, 101 Va. L. Rev. 1579 (2015).  

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