Monday, February 13, 2023

From Around the Blogs

1. On Law360, David Kappos and Jonathan Barnett published an article titled Enhanced Damages Necessary in No-Injunction Patent System.  The authors argue that Congress amend the Patent Act to provide that, in any case in which the patent owner prevails but the court denies an injunction, the "court must grant a multiplier," up to treble damages.  The article appears to be a shorter version of a paper they posted on ssrn last year, which I blogged about at some length here.  

2.  Enrico Bonadio published a post on the Kluwer Patent Blog titled How to Avoid Jurisdictional Clashes on Standard Essential Patents—A Short Summary of Some Proposals.  The post discusses various proposals—including the establishment of an international tribunal, an international convention setting forth best practices, or the use of SSO choice-of-law rules—for adjudicating global FRAND disputes.  Nice overview of some competing ideas. 

3. Also on the Kluwer Patent Blog, Rik Lambers published a post on the titled πάντα ῥεῖ.  (The title comes from Heraclitus, and means “Everything flows.”).  The post discusses a recent decision of the Court of Appeals of the Hague, Novartis v. Pharmathen, mostly affirming a lower court decision granting a cross-border injunction.  The court held that the defendant, Pharmathen Global, as a controlling parent company, was a direct infringer of the patent in suit and that the Dutch court could enjoin it from infringing throughout the E.U., including in Greece (where an earlier motion for a preliminary injunction, directed against the Greek subsidiary, had been denied).  The court could not enjoin the Greek subsidiary or direct the parent to instruct the sub not to infringe, but the author describes this as a Pyrrhic victory for the defendants.  

Also of relevance to cross-border injunctions are several posts discussing a 2022 decision by France’s Cour de cassation, Hutchinson v. Tyron, finding that article 8.1 of the Brussels Regulation (Recast) and article 14 of the French Civil Code authorized a French court to assert jurisdiction over parties who were infringing the national portions of a European Patent in France, Germany, and the U.K.  For discussion, see posts by Matthieu Dhenne and by the HoygRokh Moneiger firm, and an article by Anne-Catherine Chiariny titled Contentieux transfrontière en contrefaçon: competence extraterritoriale du juge français!, in the December 2022 issue of Propriété Industrielle,

4. Aparajita Lath published a post on SpicyIP titled Bill to decriminalise IP offences misses the mark and dilutes significant provisions.  The post criticizes, among other things, a bill that would remove criminal penalties for false statements to the Copyright Office (while leaving intact a provision that permits copyright infringement generally to be prosecuted as a criminal offense, without distinguishing ordinary infringement from piracy; would reduce the penalties for failure to work one's patent; and that would increase the penalties for false patent marking tenfold (leading, the author states, to “disproportionately large penalties”).  Thankfully, the America Invents Act put an end to the U.S. experiment (from 2009-11) with disproportionately large penalties for false patent marking, as I have previously noted here

Also on SpicyIP is a post by Prahash Gour titled Delhi High Court Imposes Costs worth INR 2 Cr. for Disobeying Interim Injunction. 2 Crore is equal to about US$250,000.  The court found the defendant in contempt of an injunction ordering it not to sell the accused pharmaceutical product.  The author states, however, that "the court has not elaborated on the reasoning as to how it fixed INR 2 Crore as the costs in the present matter, which could have been a good guiding principle for the courts in the future.

5. Florian Mueller published a post on FOSS Patents titled Burgeoning IP and antitrust jurisdiction: Brazil's Superior Court of Justice allowed Ericsson to enforce preliminary injunction against Apple over FRAND-pledged standard-essential patent.  In addition to discussing the Ericsson/Apple case referenced in the title, the post also mentions some other patent and tech matters in Brazil.  

6. Giulia Pasqualetto published a post on the EPLaw Blog titled IT – Court of Appeal decision touches on filing new prior art documents / generic decision for damage compensation.  The post discusses a decision of the Court of Appeal of Milan, in which the author states the court held that the court of first instance should have granted the plaintiff's request for an order that the defendant provide information relevant to the plaintiff's damages.  In a case like this, where "the court lack[s] the evidence necessary to quantify the damage,"  it is appropriate to issue "a generic decision for damage compensation" accompanied by an order "that the proceedings continue to gather the evidence necessary to quantify the damage suffered" by th plaintiff.    

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