tag:blogger.com,1999:blog-5202549570150301909.post2657506584489270397..comments2024-03-15T00:21:23.406-07:00Comments on Comparative Patent Remedies : Developments in the law of injunctions, arbitration, and related matters in Canada, France, Germany, Portugal, and the U.S.Thomas Cotterhttp://www.blogger.com/profile/07145440504421320263noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-5202549570150301909.post-15063813830024592852014-04-16T08:26:57.043-07:002014-04-16T08:26:57.043-07:00You may be right; the systemic costs of taking thi...You may be right; the systemic costs of taking this sort of thing into account could be high--though maybe that's inherent to the "public interest" factor. (And therefore presents an interesting question whether "public interest" really should be a factor in connection with permanent, as opposed to preliminary, injunctions. If I remember correctly, in the U.K. the prevailing view is that public interest rarely if ever should be a consideration in granting a permanent injunction.) Still, on the facts of this case, the judge did make a finding that the infringing device presents a lower risk of death, and at least according to the WSJ article others in the field appear to agree . . .Thomas Cotterhttps://www.blogger.com/profile/07145440504421320263noreply@blogger.comtag:blogger.com,1999:blog-5202549570150301909.post-24242895669960992512014-04-16T07:24:04.610-07:002014-04-16T07:24:04.610-07:00I agree that there is a real possibility of irrati...I agree that there is a real possibility of irrational failure to licence, but if that is enough to deny a permanent injunction, then that would amount to a rule that permanent injunctions can never be granted for patent infringement in the medical devices industry, where every advance has the potential to save a life. I'm also skeptical about putting too much weight on the safety findings in a patent trial. A proper safety assessment is difficult, as we have seen from cases where FDA approved drugs are removed from the market, and patent litigation is a particularly poor venue for assessing the accuracy of such claims, especially since the parties have an incentive to make exaggerated representations both to support non-obviousness and a higher royalty claim. No doubt there are occasional major advances, but I expect that most a pretty incremental. I don't think it would be a good idea to require a high degree of proof a increased safety, or lack thereof, in determining whether to grant an injunction, because that could very substantially increase litigation costs, and I'm not sure how reliable the results would be (especially with a new product that doesn't have a long history or good studies). But if is grounds for refusing an injunction without a strong showing of increased safety, then we're back to the problem that there will be no injunctions in medical devices. I expect that will also lead to a lot more litigation over reasonable royalties, again with less accuracy than if the parties were to bargain.Normanhttps://www.blogger.com/profile/17573687140337856397noreply@blogger.comtag:blogger.com,1999:blog-5202549570150301909.post-24079692589687438432014-04-16T06:29:20.058-07:002014-04-16T06:29:20.058-07:00You're certainly right that, as rational actor...You're certainly right that, as rational actors, P & D should be able to bargain in the shadow of an injunction and reach an agreement whereby D will be able to market its superior product for an appropriate royalty. Given the many imperfections in the market for health care in this country, though, I'm not sure whether that prediction would necessarily holds true or not. (I'm not saying it wouldn't, I just honestly don't know.) And people don't always, 100% of the time, act rationally. Maybe I'm just letting my heart get ahead of my head, but I am concerned about the possibility that people could die in the event, even if it is an unlikely event, that the parties don't reach an agreement.<br /><br />I definitely do need to add the patent linkage cases to my list. I'll be re-reading your blog posts to get a better handle on how it works in Canada. Thomas Cotterhttps://www.blogger.com/profile/07145440504421320263noreply@blogger.comtag:blogger.com,1999:blog-5202549570150301909.post-10519480383549659512014-04-16T05:28:47.608-07:002014-04-16T05:28:47.608-07:00Re 1, Canadian law of preliminary injunctions was ...Re 1, Canadian law of preliminary injunctions was shaped by a similar case, in which a trial judge granted a preliminary injunction enjoining the Red Cross from using the patented technology in its blood collection system. The effect, if enforced, would have been to stop blood collection in Canada. To my mind, the trial court erred in assessing the balance of convenience, but that was The Court of Appeal reversed, but it did not say that the trial court had erred in assessing the balance, which to my mind is the real problem, perhaps because that assessment is reviewed on a deferential standard. Instead, it drastically raised the bar for preliminary injunctions as a matter of law, with the result that even today, preliminary injunctions are almost impossible to obtain in Canada in patent infringement actions. On a slightly different note, I am inclined to think that the public interest should be an important factor in preliminary injunction cases, but not for permanent injunctions, where holdup should be the main concern. If there isn’t a holdup problem, then the parties should be able to settle to allow the better product on the market.<br /><br />Re 5, you probably also have this on your list, but also consider the Canadian cases on damages under our patent linkage system (aking to Hatch-Waxman), in which a generic which is wrongly kept out of the market by the statutory stay is entitled to recovery of full damages.Normanhttps://www.blogger.com/profile/17573687140337856397noreply@blogger.com