From Around the Blogs

1. As one would expect, there continues to be considerable discussion of the European Commission’s now-officially-released proposed SEP regulation.  For some of the more recent commentary, see Ryan Davis, Questions Abound on EU Plan for New Essential Patent Rules, Law360, May 1, 2023; Roya Ghafele, European Commission’s Draft Standard Essential Patents Regulation puts the emphasis on patent valuation, IPKat, May 4, 2023; Joachim Henkel, The Proposed EU Regulation on SEPs (II): Comments on critique, Kluwer Patent Blog, May 4, 2023; Mathieu Klos, No major changes in EU Commission final proposal forFRAND regulation, JUVE Patent, Apr. 27, 2023; Florian Mueller, Proposed EU SEPregulation and DG GROW-commissioned studies fail to consider claim constructionand lack of EU-level harmonization of patent infringement case law, FOSS Patents, May 2, 2023; and Konstanze Richter, “To proceed as before would be a mistake”, JUVE Patent, Apr. 28, 2023.     

2. On IP Watchdog, Tobias Wuttke published an essay titled Countdown to the Unified Patent Court, Part III:  Remedies.  The author states that, although UPCA article 63(1) appears to make injunctive relief discretionary, “it does not come as a surprise that designated UPC judges have already mentioned in public that the denial of injunctive relief is only conceivable in exceptional scenarios.”  Also of relevance to the UPC and remedies is a post on IPKat by Tobias Cohen Jehoram and Emilia Zalewska titled Event Report:BIE Symposium raises questions on Arrow declarations in the UPC.  According to the authors, the panelists at a recent symposium agreed that Arrow declarations (a type of declaratory judgment of invalidity) should be possible, even though the UPCA does not explicitly reference them.

3. Norman Siebrasse has an ongoing series of posts (here, here, here, here, and here, with more yet to come) discussing Nova v. Dow, a Canadian Supreme Court decision previously discussed on this blog here.  Suffice to say, I agree with Professor Siebrasse’s critique of how the majority opinion applies the non-infringing alternative concept to the remedy of an accounting of profits.  Professor Siebrasse also published a post a few weeks back titled Accounting Elected in the Alternative, about a different case which, he argues, appears to “illustrate the point it ha[s] become routine to allow the patentee to elect an accounting, almost as of right,” despite precedent characterizing it as an equitable remedy the choice of which is not entirely up to the plaintiff.

4.  Also a few weeks back, the Essential Patent Blog, FOSS Patents and IPKat covered a decision of the Delhi High Court, Intex v. Ericsson, holding, inter alia, that SEP owners may obtain interim injunctions on the basis of a prima facie case, and reversing a lower court decision imposing more stringent criteria.

5. On Patently-O, Dennis Crouch published a post titled Establishing Guidelines for Patent Damages:  The Garretson v. Clark Case of 1884.   Garretson is a foundational U.S. case on apportionment of damages.  The Federal Circuit (correctly, in my view) applied the underlying principle of Garretson in Mentor Graphics Corp. v. EVE-USA Inc., 851 F.3d 1275 (Fed. Cir. 2017).