From Around the Blogs

1. Mark Cohen has published a very interesting post on the China IPR Blog titled The Pushmi-Pullyu  of Chinese Anti-Suit Injunctions and Antitrust in SEP Licensing.  The post states that, while Chinese courts have pulled back on issuing antisuit injunctions in relation to global SEP disputes, China's State Administration for Market Regulation (SAMR) may be poised to use antitrust law to penalize firms that the SAMR views as engaging in the abuse of IP rights, for example by violating FRAND commitments or unfairly requesting a foreign court to enjoin the use of IP rights.  As Mr. Cohen notes, this could be a much more significant tool in China's hands, given that the Antimonopoly Law permits punitive penalties of up to 50% of a firm's annual review.  Wow.

2. On IPKat, Hayleigh Bosher published a brief post noting that UKIPO has published the responses received to its December 2021 call for views on a variety of SEP-related issues (available here).  as the author notes, "there was little consensus on the nature, extent, causes, and impact of problems in this area, with SEP holders and implementers often advancing opposing arguments".  No big surprise there, I guess.  

3. Both FOSS Patents and JUVE Patent published posts noting that OPPO has decided to exit the German market, for the time being at least, in response to a loss of two SEP cases in Munich.  Meanwhile, Roberto Rodrigues Pinho published a post on the Kluwer Patent Blog discussing two recent cases, both brought by Genentech, addressing the availability of preliminary injunctions in Brazil. 

4. On Law360, Mark Liang published an article titled Post-Arctic Cat Lawsuits Reveal Patent Marking Pitfalls.  As anyone who follows my work is aware, the U.S. patent marking statute is one of my long-time bugbears--I would abolish the marking requirement altogether--but as long as it remains, it does create a lot of pitfalls for the unwary.  The specific pitfall that Mr. Liang points out in his article is one that I haven't focused on in my discussions, however, namely the various standards district courts have applied to determine whether a defendant has timely notified the plaintiff that the defendant intends to pursue a failure-to-mark defense to the plaintiff's damages claim.  As if patent litigation isn't complicated enough . . .  Also on Law360,  Jonathan Engler, Michael Renaud and Jessica Perry published an article titled Enforcing Patents Isn't Easier As America Invents Act Turns 10, stating that "out of almost 7,000 patent jury awards in cases filed after 2012, only 32 high-technology awards exceeded $30 million," and the Federal Circuit has only enforced one of these (though many of them--it's not clear to me from the article exactly how many--either settled or remain pending).

5. Update (August 17):  On JUVE Patent today is an article by Mathieu Klos titled "One year since the new German patent law, the injunction remains the same".  Title pretty much says it all:  according to the author, "German patent courts have not issued a hardship decision in favour of an infringer in any case decided since August 2021," when the law explicitly permitting them to withhold or delay injunctive relief went into effect.  The author also notes, however, that German courts do act with a sense of proportion when they require plaintiff to post "high security payments . . . for provisional enforcement."