Google's Reply Brief in EcoFactor Is In

I was planning to blog about the HMD Global Oy v. VoiceAge EMS decision today, but I understand that the decision has been pushed back once again, this time to March 20 (four weeks from today).  So we will wait and see what the Munich Higher Regional Court’s response to the EC’s Amicus Brief looks like then.  Meanwhile, Google has filed its reply brief for the en banc rehearing in EcoFactor, Inc. v. Google LLC, which is scheduled for March 13 (three weeks from today).  The reply brief focuses heavily on the question of whether EcoFactor’s expert’s methodology was sufficiently reliable to satisfy Federal Rule of Evidence 702, arguing inter alia that EcoFactor conflates relevance with reliability, and that reliability is a question reserved for the judge in the exercise of the judge’s gatekeeping function.  Almost makes me feel like I’m back teaching evidence law, something I last did in 2001.  It also drives home how much time and effort we are compelled to devote to patent infringement litigation in the United States, compared to every other country on the planet, because of the constitutional right to trial by jury.

Some Recent Scholarship on FRAND, IP Remedies

1. Wentong Zheng has published an article titled Jurisdictional Competition on Standard-Essential Patents, 14 NYU J. Intell. Prop. & Enter. L. 1 (2024).  Here is a link to the article, and here is the abstract:

This Article offers a systematic examination of jurisdictional competition on standard-essential patents (“SEPs”). SEPs are patents essential to technology standards developed by standard-setting organizations (“SSOs”). To reduce potential patent holdup, SSOs generally require SEP holders to commit to licensing SEPs on “fair, reasonable, and nondiscriminatory” (“FRAND”) terms. During the last decade, jurisdictions around the world have been engaged in fierce competition to set the ground rules on FRAND and other requirements for SEP licensing. This Article traces the legal landscape of this jurisdictional competition and examines how three major jurisdictions, the United States, Europe, and China, have developed divergent stances towards the most important legal issues affecting SEP licensing under patent law, contract law, and antitrust law.

 

This Article further challenges the prevailing scholarly assumption that jurisdictional competition on SEPs is socially undesirable. Drawing upon a historical analogy from maritime law in the post-industrial revolution era, this Article argues that jurisdictional competition on SEPs plays a positive role in facilitating compromises between innovator interests and implementer interests. Viewed in this light, jurisdictional competition on SEPs enhances social welfare by producing a “race to the middle” in which competing societal interests are calibrated and balanced.

2. Deming Liu has published an article titled Reflections on Damages for Infringing the Moral Right of Integrity, 2 J. Bus. L. 144 (2025).  The article is available on Westlaw, in the U.K. section.  Here is the abstract:

The article shows that the current court largely ignores the existence of the word honour in assessing infringement for the moral right of integrity; and that the court, in applying the objective test, also ignores the gist of the right and the requirement and spirit of the Berne Convention. It advocates that the court overhauls its stance toward the right of integrity, not only taking on board the issue of honour but also giving the author's own view due consideration. Then, in assessing damages for infringement, the court ought to base its judgment on whether it is a case of prejudice to honour or a case of prejudice to reputation. The article further proposes that additional damages be awarded where justice demands.

3.  Rafał Sikorski has published an article in 47 EIPR 134 (2025), titled Realising the potential of proportionality in patent enforcement: A case for amending IPRED.  This article also is available on Westlaw, in the EU section.  Here is the abstract:

The design of enforcement mechanisms, including remedies, determines the intensity of intellectual property protection. It holds true for patents as well. This article is an attempt to show how to ensure greater role for proportionality in patent enforcement, especially with respect to permanent injunctive relief. Firstly, it examines the growing recognition of proportionality for the enforcement of IP rights in both primary and secondary EU law. Secondly, the author analyses current patent laws and practice of respective national courts in patent infringement disputes. Thirdly, it looks at how proportionality is embraced by legal scholars. In this section the author also shows that there is emerging consensus around the need to apply injunctions in a more flexible manner. The cases of complex products and patent assertion entities are particularly evident examples where application of proportionality is needed. Fourthly, the author proposes revision of the directive on enforcement of intellectual property rights (IPRED) that would ensure that proportionality is properly considered by both national courts as well as the UPC, whose role as the main EU forum for resolving patent infringement disputes is likely to grow. The EU legislator has a number of possible options to ensure greater role for proportionality. These will be analyzed respectively and a proposal that is optimal—in this author’s opinion—shall be presented. Fifthly, the author will discuss implications of modernisation on the UPC. Finally, conclusions will be presented.

4. Also in the current edition of EIPR, Giuseppe Colangelo has published The politicisation of IP protection: the case of standard essential patents, 47 EIPR 121 (2025).  Here is the abstract:

Standard essential patents (SEPs) exemplify the tension between the dual nature of intellectual property, which is both national and international. While standards have a global dimension, patents confer territorial rights, making the implementation of standards geographically constrained. As technical standards are a strategic tool, countries have developed national standards strategies that prioritise securing technological leadership. Unsurprisingly, SEPs have become a geopolitical issue and a significant factor in international tensions. In this context, China’s growing role in international standardisation has further politicised the process of standard-setting. This paper argues, however, that the approaches taken by EU and US courts and policymakers regarding SEPs have inadvertently aided China in effectively implementing its strategy. The paper identifies the root of the problem in the uncertainty surrounding the economic and legal interpretation of fair, reasonable, and non-discriminatory (FRAND) licensing terms, as well as in the willingness of national courts to act as global licensing tribunals. Additionally, the paper investigates whether the ongoing strategies of the US and the EU align with their stated goal of achieving technological leadership.

SEP Developments in the E.U., Germany, and the U.K.

I am now back from Munich, after having spent several days conducting research at the Max Planck Institute for Intellectual Property and Competition Law in connection with my two pending book projects.  I also had a very enjoyable time speaking at Ludwig-Maximilians-Universität last week on the topic of extraterritorial damages, and spending time with professional colleagues and friends, including some new ones.

The big news from the world of patent law, of course, was announced just as I was departing, namely that the European Commission was withdrawing its draft SEP Regulation.  I’m not sure that’s a huge surprise, given all the criticism that had been leveled against the draft over the past (nearly) two years—though to be fair, there were many defenders as well, including some who hoped that the Commission would succeed in establishing its proposed nonbinding FRAND determination procedure, as a tool for assisting courts in deciding what terms may or may not be FRAND.  Anyway, there has been a range of opinion on the matter over the past few days, including posts on JUVE Patent, IAM, IP Watchdog, and ip fray; and OxFirst will be putting on a webinar addressing this topic among others on February 27, with Nokia’s Clemens Heusch and Xiaomi’s Le Chen scheduled to speak (registration information here). 

Big news expected for next week includes the decision of the OLG Munich in HMD Global Oy v. VoiceAge EMS, which is expected to address the EC amicus brief’s interpretation of Huawei v. ZTE.  Indications at the preliminary hearing in late October were that the OLG was receptive to the EC’s arguments; two UPC panels, by contrast, were not so enthusiastic, to put it mildly, so this should be interesting.  I will plan to read and blog about the decision as soon as it is available.  In addition, SEP mavens will be awaiting Tuesday's hearing of the EWCA concerning whether Lenovo may be entitled to an interim license in its dispute with Ericsson.  The hearing will be live streamed, here.