From Around the Blogs

1.  On IPKat, Henry Yang published the remaining three installments of his series on Mr. Justice Mellor’s March 2023 decision in InterDigital v. Lenovo, [2023] EWHC 539 (Pat.):    Unpacking IDC v Lenovo (PartII): General principles of FRAND explored;  Unpacking IDC v Lenovo (Part III): $0.175 per cellular unit; and Unpacking IDC v Lenovo (Part IV): top-down cross check; allegations regarding conduct; permission to appeal.  I previously noted Part 1, The approach on unpacking and comparing prior licence agreements, here, and published some of my observations on the decision here.

2. On Law360, Manuel Velez, Lisa Ferri, and Jessica Lehrman published an article titled Enhancing Patent Damages:  Trends IP Attorneys Should Know.  The authors report that they found 73 post-Halo v. Pulse district court decisions in which there was both a finding of willfulness and a decision by the judge whether or not enhance damages.  They found that courts enhanced damages in 40 (54.8%) of these cases, and that the average enhancement was 2.2.  (For comparison, see Karen Sandrik, An Empirical Study: Willful Infringement & Enhanced Damages in Patent Law After Halo, 28 Mich. Tech. L. Rev. 61 (2021), reporting that courts enhanced damages in 69.0% of cases in which there was a finding of willfulness post-Halo through 2020, but also cautioning that the increase compared to pre-Halo was not statistically significant).  The authors also report considerable variation among districts, with the District of Delaware enhancing damages upon a finding of willfulness in 9.1% of cases (although I wonder if that is a misprint; an accompanying graph seems to indicate a higher rate, albeit still below 20%), to the Central District of California doing so in 85.7% of cases; and discuss courts’ continued reliance on the Read v. Portec factors to determine whether to enhance.    

Also of interest on Law360 was an article by Adam Lidgett titled Atty Tells 9th Circ. Valeant Ruling Saves Allergan Patent Suit.  The article discusses another False Claims Act case brought by Zachary Silbersher, who argues that a recent Ninth Circuit decision (noted here) should permit his cases against Allergan (alleging fraudulent procurement of two patents) to proceed.

3.  On FOSS Patents, Florian Mueller published, among other things, a post discussing the first UPC preliminary injunction hearing conducted in Munich this past week.  

4.  On Sufficient Description, Norman Siebrasse published Nova v Dow: Summary of the Summary.  The post summarizes Professor Siebrasse's forthcoming article on this Canadian Supreme Court decision, which I blogged about here; it resumes an ongoing series of posts on this case, which Professor Siebrasse plans to continue (the previous posts can be accessed (here, here, here, here, and here).  Siebrasse is, in my view, rightly critical of the majority's reasoning as it relates to the remedy of an accounting of the infringer's profits and the meaning of "non-infringing alternative."  He writes that "There is no way to interpret Nova v Dow that would restore the remedy to a sound basis," and that "[t]he best response to Nova v Dow is therefore to abolish the accounting remedy entirely"--something the U.S. did, for utility patents, in 1946, though so far no other country has done so--or at least restrict the remedy "to cases in which the infringer was trying to game the system by avoiding ex ante licensing, ie was engaging in holdout."