Friday, November 22, 2013

Friday Miscellany: FRAND, SEPs, Injunctions, Infringer's Profits, and more

1.  Elyse Dorsey and Matthew R. McGuire have published  How the Google consent order alters the process and outcomes of FRAND Bargaining,  20 Geo. Mason L. Rev. 979 (2013).  The article can be downloaded, here.  The authors express skepticism over the FTC's Google consent order, requiring Google to forgo injunctive relief for FRAND-encumbered SEPs, subject to some exceptions.  I'm not sure I disagree--I've expressed skepticism over the use of antitrust law (including section 5 of the FTC Act) to achieve this result, and would prefer to resolve it as a matter of patent law instead.  I part company, however, with the authors' downplaying the seriousness of patent holdup and their assertion that "law and economics theory . . . recognizes that strong patent rights are essential to fostering innovation and to maximizing dynamic efficiency."   (As far as law and economics theory is concerned, in my view the jury it still out.  There certainly isn't much if any empirical evidence that patents play much of a role in fostering innovation in the IT sector.) 

2.  Yongwook Paik and Fong Zhu have a paper up on ssrn titled The Impact of Patent Wars on Firm Strategy:  Evidence from the Global Market.  The link is here.  Here is the abstract: 
We examine how patent wars affect firm strategy. We hypothesize that, as patent wars intensify, firms shift their business foci to markets with weak intellectual property (IP) protection due to increased litigation risks. This shift is attenuated for firms with stronger technological capabilities, and is more pronounced for firms whose home markets have weak IP systems. Using data from the global smartphone market, we find support for these hypotheses. Interestingly, we also find that the patent war intended to hamper the growth of the Android platform may have merely shifted the sales to weak IP countries. This study sheds light on the emerging patent enforcement strategy literature by highlighting the heterogeneity in the efficacy of national patent systems in explaining firm strategy in platform-based markets. 
3.  On the Kluwer Patent Blog, Anders Valentin has a write-up on a recent Danish Supreme Court decision reversing the grant of a preliminary injunction against Actavis.  The case involved a process patent, and the court held that even in the context of a preliminary injunction proceeding, the patent holder can make use of the presumption that shifts the burden to the defendant to show that its product was not made by the patented process.  However, in this particular case, the court concluded that the defendant successfully rebutted the presumption.

4. I mentioned recently that Phillip Johnson had published an article titled 'Damages' in European Law and the Traditional Accounts of Profits in 3 Queen Mary J. Intell. Prop. 296 (2013).  I've now had a chance to read the article.  One question the author raises is whether the remedy of infringer's profits under the 2004 Enforcement Directive is or can be the same as an award of profits under English law.   Mostly a doctrinal piece, the paper doesn't engage the underlying policy issues, e.g., what principles should be used to apportion profits, etc., but is helpful in pointing out the doctrinal issues that courts are likely to confront in the years to come.

5.  This is a few weeks old now, but Michael McManus had an interesting post on Patently-O titled Section 337 Caseload and Win Rate Revert to Norms.  As most readers are probably aware, the U.S. ITC provides a parallel forum for litigating some patent infringement disputes, and can award only injunction-type remedies, not damages.  For previous discussion on this blog, see, e,g., this post from last May.

6.  Professor Jeffrey Harrison and I just published a new casebook, titled Law and Economics:  Positive, Normative and Behavioral Perspectives (West Publishing 3d ed. 2013).  There is a tiny bit about I.P. remedies at the very end of the book.  Here is the description:
This casebook examines the application of economic reasoning to law, including the underlying assumptions of the economic approach. It begins by describing the basic tools of economic analysis, including the Coase Theorem. It provides a critical examination of the strengths and limitations of economic analysis as applied to contracts, torts, criminal law, antitrust, and intellectual property. The goal is to enable students to understand how economics can illuminate the behavioral assumptions and trade-offs implicit in many legal doctrines, how it may assist in improving the law, and how the economic approach compares with social justice and other perspectives.
For further information, see here.

7.  At the invitation of the Federalist Society, I also participated in a podcast yesterday titled "Patent Re-Reform in Congress," with Jim Copland of the Manhattan Institute and NYU Professor Richard Epstein. The podcast can be downloaded free of charge here.  One of the issues presented in some of the pending bills is whether to make it easier for prevailing parties in U.S. patent infringement litigation to recover attorneys' fees.

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