From Around the Blogs

1.  On EPLaw, Sarah Taylor and Stefan van Kolfschooten published a post titled UPC—10x Genomics v. Curio Bioscience:  10x Genomics finds new success in securing a preliminary injunction against Curio.  The post discusses, and links to, an April 30 decision of the Düsseldorf Local Division of the UPC granting a preliminary injunction against the alleged infringement of claims of EP 2 697 391 B1.  As the authors state, the decision “reiterated the standard for granting PI’s that it should be ‘more likely than not’ that the asserted patent is valid even where validity has not previously been challenged,” and also “reiterated that as soon as a patentee has knowledge of the alleged infringement, it must take the necessary measures and obtain the documents required to support its claims” and then file its application for a PI within one month.  (Florian Mueller also discusses this decision on ip fray, here.)  Meanwhile, on the Kluwer Patent Blog, Matthieu Dhenne takes issue with the Munich Local Division’s articulation of the PI standard in last fall’s 10x Genomics case against Nanostring, arguing that “preponderant likelihood” of infringement “is too close to the infringement itself.”       

2.  Spicy IP has published a two-part series by Praharsh Gour and Swaraj Paul Barooah titled Looking for Reasons in the Delhi High Court’s FRAND Determination in the Ericsson-Lava SEP Case (links here and here).  As previously noted on ip fray and on this blog, in late March the Delhi High Court ordered Lava to pay Ericsson a global FRAND royalty, covering a portfolio of FRAND-committed SEPs for the period 2011-20, plus costs, totaling approximately USD $30 million.  The authors of these two posts make some good points in their critique of the decision.  In the first post in particular, discussing the use of comparables, they ask “how does one determine ‘non-discrimination’ . . . without having any sense of what rates other are being offered? . . .  Though later rates in these comparable agreements were held as FRAND by the Court, for doing so Ericsson had to place these agreement in the record. . . . This makes use wonder if one can be a willing licensee with asymmetrical information?”  (I have made a similar point myself about the tension between the nondiscrimination requirement and the confidentiality of consummated licenses.)  They also note, however, that “regardless of Ericsson’s justified or unjustified non-disclosure, Lava also failed to make a counter proposal, which is a key ingredient to determine the willingness of the parties.  Our point here is not about the outcome, (which would likely have been the same) but the process.”     

3.  Law360 has published some interesting articles recently on patent remedies, including Andrew Karpan’s article about the Marcum Patent Litigation Study which I mentioned on Monday.  One is an article by Nicholas Nowak and Jamie Dohopolski titled Why Fed. Circ. Should Resolve District Split on Patent Statute, discussing a difference of opinion among the lower courts on what patent owners must do to comply with the patent marking statute “when such a mark cannot be placed on the patented article itself due to the character the article.”  As I have stated ad nauseam, the patent marking statute is in my opinion an absurdity that Congress should repeal altogether.)  Another is  Deepa Sundararaman and Cleve Tyler’s 10 Lessons from a Deep Dive Into IP Damages, discussing the authors’ “insights into expert admissibility based on more than 400 orders and covering about 1,300 decisions regarding specific challenges regarding IP damages expert opinions,” which is based on their recent article in the Texas Intellectual Property Law Journal, which I previously noted here.  A third is by James Donohue and Marie Sanyal, titled Patent Damages Jury Verdicts Aren't Always End of the Story, reports that about a third of patent damages jury awards are overturned post-trial (on which issue, see also the Marcum study noted above).  A fourth is Amol Parikh and Ian Howard’s article Fed. Circ. Defines Foreign IP Damages, Raises New Questions, discussing the recent decision in Brumfield v. IBG LLC, which I discussed here.  These authors note, inter alia, the proximate cause questions left open by the decision.  Professor Tim Holbrook also has a very good essay on the case on Patently-O, titled Guest post by Prof. Holbrook: Extraterritoriality and Patent Damages Under § 271(a).  He graciously acknowledges our differences of opinion on the underlying issue of whether courts may award damages for extraterritorial losses caused by domestic infringement, stating that “ The decision in Brumfield feels more like the analysis posited by Professor Cotter, although a richer engagement with the statute [§ 271(a)] would have been helpful.”