From Around the Blogs: Mostly Injunctions

1. Both the EPLaw Blog and JUVE Patent have published posts recently on a Belgian decision in which, according to these sources, a court ordered the owner of a (non-standard essential) telecommunications patent (Tunstall) to license two infringement defendants  (Victrix and Télé-Secours).  Although there was no finding of abuse of dominant position, the court held that Tunstall committed an "abuse of economic dependence," which EPLaw describes as a "relatively new addition" to the Belgian Economic Code, and JUVE Patent describes as an "exceptional provision."  EPLaw, which also links to the decision in French and English, states further that, according to the Code, "economic dependence" means "the position of dependence of an undertaking on one or more other undertakings, characterised by the absence of a reasonably equivalent alternative available within a reasonable time, on reasonable terms and at reasonable cost, which would enable the undertaking or each of them to impose obligations or conditions which could not be imposed under normal market circumstances.”  On its face, the doctrine strikes me as a bit odd, insofar as it is not uncommon for there be no reasonable noninfringing alternatives available to an infringement defendant.  And while I think courts should have discretion to deny injunctive relief in circumstances suggesting a risk of patent holdup, I'm not sure it makes sense to withhold injunctive relief in many other cases, particularly if  there was no impediment to preinfringement bargaining, simply to prevent the patentee from charging a monopoly price.  In any event, I need to learn more about this Belgian doctrine.

JUVE Patent also published a post titled Düsseldorf Regional Court rejects PI in fingolimod case, according to which a German court held that a preliminary injunction cannot issue based on a pending patent application.  This issue has come up elsewhere in Europe in recent months, in other cases involving the same drug, fingolimod (see previous discussion on this blog here).  Yet another post discusses a Dutch court's granting of a cross-border preliminary injunction in a case involving the drug Okrodin. 

2.On SpicyIP, Aparajita Lath published a post titled Bye,  bye quia timet patent injunctions?  According to the post, a recent decision of the Indian Supreme Court held that "mediation prior to institution of a suit is mandatory unless the suit contemplates urgent interim relief."  The author believes that "suits praying for patent injunctions based on a mere fear of infringement (called ‘quia timet’ injunctions) will not qualify as suits for ‘urgent interim relief,’" because "such cases are based on mere apprehensions of infringement – nothing is urgent, clear or imminent."  The author approves of the mediation requirement, though for reasons I suggested the other day I think the question of mandatory presuit mediation or other ADR needs some careful study.

3.  On IP Watchdog, Marie McKiernan published a post titled An Exercise in Restraint:  Seeking and Combatting Injunctive Relief.  The post compiles statistics gathered from Lex Machina on permanent and preliminary injunction grant rates in the U.S. since from January 2, 2014 through December 31, 2020.  According to the post, during that time U.S. courts have awarded prevailing patent owners permanent injunctions in 87% of cases in which such relief was requested, and have granted 41% of motions for preliminary injunctive relief.  The post also discusses case law addressing the four eBay factors, e.g., what counts as irreparable injury, etc. 

4. Enrico Bonadio and Rishabh Mohnot published a post on the Kluwer Patent Blog titled Standard Essential Patents, Global Licensing Approach and the Principle of Territoriality.  The authors argue that the "‘global licensing approach’ adopted by the [UK] Supreme Court [in Unwired Planet] may not be consistent with the principle of territoriality," in that "[a]lthough the injunction granted in Unwired Planet does not extend to jurisdictions beyond the UK, it is based on the court’s assessment of royalty payable for a patent portfolio which includes patents held in jurisdictions beyond the UK."  The authors raise the question whether "the global licence approach is going to be challenged at the WTO for an alleged violation of Article 4bis of the Paris Convention," as incorporated into TRIPS.

5. On Bloomberg Law, Bobby McGill and Kelsee Griffis published an article titled GE Turbine Block a Setback, Not Death Knell, for New Wind Energy.  The article discusses a recent U.S. district court judgment granting an injunction against GE's construction of offshore wind turbines, with a carve-out for two turbines that are already under construction.  The article quotes Professor Elizabeth Winston as stating that the carve-out "represents an interesting balance between strong patent protections and public environmental concerns."  It reminds me a bit of Riles v. Shell Exploration & Prod. Co., 298 F.3d 1302 (Fed. Cir. 2002), although in that case the oil platform at issue had been fully constructed.  I wonder if the German courts would consider a case like this one to be an appropriate one for denying or staying injunctive relief?

6. Finally, with regard to a case having nothing to do with injunctions, Norman Siebrasse published a post on Sufficient Description discussing a decision of the Ontario Court of Appeals affirming a judgment that "statutory stay damages" are the exclusive remedy for generic competitors who are kept off the market during the time the patent owner enjoyed market exclusivity based on a patent later held invalid--even if the patent is declared invalid later on, in proceedings to which the generic firm was not a party (and therefore was ineligible for statutory stay damages).  Professor Siebrasse likens the result to what would happen in the U.S. under the Noerr-Pennington doctrine.